MSU College of Law

MSU Law Professor’s Proposal Adopted by Federal Agencies

In 2011, Professor Michael Sant’Ambrogio came to MSU to teach Administrative Law. In 2016, he’s helping to re-write the law. On June 26, the Administrative Conference of the United States (ACUS) adopted his recommendations on the use of aggregation by federal administrative agencies that adjudicate claims. His ideas now constitute official guidance to all federal agencies.

“At MSU, we’re not just studying the law, we’re shaping it,” said Dean Lawrence Ponoroff. “And Michael’s work is an example of that. He and his colleague provided an innovative solution to the inertia that sometimes afflicts agency adjudication.”

In 2012, Sant’Ambrogio and his frequent co-author, Loyola Law Professor Adam Zimmerman, published an article in Columbia Law Review suggesting that federal agencies could make greater use of class actions and other aggregation tools long used by federal courts to resolve common questions of law or fact involving large groups in a single proceeding. For groups like veterans, coal-miners, student borrowers, and Medicare beneficiaries, this could be a game-changer. Federal administrative agencies adjudicate more cases each year than the entire federal judiciary and there are significant backlogs in many administrative dockets. Deciding common issues in a single proceeding allows agencies to resolve them more efficiently, consistently, and fairly than possible with individual case-by-case adjudication.

In 2014, ACUS asked the scholars to study the handful of agencies that have used different forms of aggregation to resolve large groups of cases. ACUS is a federal agency that promotes improvements in the efficiency, adequacy, and fairness of the procedures used by the federal government. It immediately saw the potential of Sant’Ambrogio and Zimmerman’s work. “Federal agencies in the United States adjudicate hundreds of thousands of cases each year,” says a June 13, 2016 ACUS press release. “Consequently, in a wide variety of cases, agencies risk wasting resources in repetitive adjudication, reaching inconsistent outcomes for the same kinds of claims, and denying individuals access to the affordable representation that aggregate procedures promise. Now more than ever, adjudication programs, especially high volume adjudications, could benefit from innovative solutions, like aggregation.”

Sant’Ambrogio and Zimmerman completed their study earlier this year and drafted a set of recommendations for federal agencies that adjudicate large numbers of cases involving similar issues. ACUS adopted their recommendations with few changes in June and published them in the Federal Register as guidance for all federal agencies.    

That’s when things got interesting. One week after the publication of their recommendation, a federal judge in New York told the Federal Trade Commission to consider some form of the scholars’ proposal to resolve consumer complaints concerning the same false or misleading statements. In addition, the Department of Education is currently considering a group procedure to resolve common complaints about educational institutions based on some of the scholars’ recommendations. The procedure would allow the Department to resolve student borrower defenses alleging the same types of misrepresentations or omissions in a single proceeding. The Department will finalize its proposal later this year after reviewing public comments as well as Sant’Ambrogio and Zimmerman’s own suggestions. Finally, the government recently reversed its position on whether the Court of Appeals for Veterans Claims (CAVC) has the power to certify class actions on behalf of veterans facing excessive delays. Sant’Ambrogio and Zimmerman submitted an amicus brief in the U.S. Court of Appeals for the Federal Circuit arguing that the CAVC had authority to certify class actions and the government conceded the point in oral arguments.

“When we began our study, only a handful of agencies even thought about using aggregation in their administrative proceedings,” says Sant’Ambrogio. “But now more agencies are looking at our work and considering whether to use aggregation to handle the enormous number of cases they must resolve each year. It’s very exciting.”

Sant’Ambrogio and Zimmerman’s Report is available here, and the recommendations published in the Federal Register can be found here.

*UPDATE 8/23/16* Sant'Ambriogio and Zimmerman's paper, Inside the Agency Class Action, which explores the broader implications of their study for agency policymaking, enforcement, and adjudication, will be published in the Yale Law Journal