Zimmerman on Class Appeals

When I think of class actions, I think of their use in district courts. But a new paper from Adam Zimmerman (forthcoming in the University of Chicago Law Review) shows that class actions can also have a place in appellate courts, where class appeals can remedy failures in administrative adjudication.

The problem is that hundreds of so-called “channeling statutes” send administrative decisions past district courts and straight to the courts of appeals for review. The courts of appeals then review these administrative decisions individually. But this case-by-case adjudication can leave claimants without an effective remedy. As Zimmerman explains, “government agencies avoid judicial review by selectively mooting claims, forcing unrepresented parties to surmount overwhelming administrative backlogs, and denying courts critical information needed to craft meaningful relief.” Zimmerman shows that a class action—certified in the courts of appeals—can remedy the failures of individual adjudication. And the courts of appeals have the means for implementing class procedures: the All Writs Act. In fact, this procedural innovation is already occurring—the Court of Appeals for Veterans Claims has certified three classes in suits against the Department of Veterans Affairs.

I just finished a draft of the article, and it’s really good. It details an important and understudied phenomenon that has the potential for wider use. It’s well worth a read.

A draft is available on SSRN. The abstract is below.

For a wide variety of claims against the government, the federal courthouse doors are closed to all but those brought by powerful, organized interests. This is because hundreds of laws—colloquially known as “channeling statutes”—require disaffected groups to contest government bodies directly in appellate courts that hear cases individually. In theory, these laws promise quick, consistent, and authoritative legal decisions in appellate courts. In fact, without class actions, government bodies avoid judicial review by selectively avoiding claims brought by some of the most vulnerable claimants in the administrative state—from veterans and immigrants to coal miners, laborers, and the disabled.

This Article proposes a novel solution: courts of appeals should hear class actions themselves. In so doing, courts high in the judicial hierarchy would continue to authoritatively decide important legal questions involving government institutions, while ensuring groups of similar, unrepresented parties finally get their day in court. While appellate class actions might sound like a strange procedural innovation, appellate courts already have power do this. Relying on the All Writs Act, appellate courts long ago created ad-hoc procedures modeled after class actions to respond to systemic government harm.

This Article is the first to examine nascent experiments with appellate class actions. It shows that, contrary to popular belief, appellate courts can hear class actions and explains why they should do so. In cases challenging systemic abuse, this power has become vital not only to level the playing field between the government and the governed, but to protect courts’ core function in our separation of powers—to hear claims, interpret law, and grant meaningful relief. Without classwide judgments in such cases, courts risk ceding power to the executive branch to decide for itself when judicial decisions limit its own unlawful policies.

Adam S. Zimmerman, The Class Appeal, 89 University of Chicago Law Review (forthcoming 2022), available at SSRN.