Federal class actions and the exhaustion of administrative remedies
By Natalia Reyna, Esq *
LLB Universidad Externado de Colombia
LLM University of Connecticut, School of Law.
Associate at Drubner & Hartley, LL.C.
In United States, a Class Action is a procedural mechanics pursuant to one or more plaintiffs bring a law suit on behalf of a large group of people with whom the plaintiffs share common law issues or factual situations relevant to the case. The main purpose of this action is to encourage the economy and efficiency of the judicial system. Class actions have evolved as an exemption to the judgment in personam or “the necessary party rule”, according to which “all persons materially interested in a subject matter of litigation should be parties to the suit, however numerous they may be.”1 Nowadays, any judgment achieved through class action litigation will result in judgment including those whom the court finds to be members of the class whether or not the judgment is favorable to the class2.
Most of the Class Actions brought against the Federal Government are based on the 1946 Federal Tort Claims Act (FTCA), the 1887 Tucker Act3, or the 1871 Civil rights4. The reason is that these Acts waive the government’s Sovereign Immunity that protects it from being sued under torts or contractual claims5. The waiver of immunity however, is not a waiver of the Exhaustion of Administrative Remedies (EAR). Indeed, the general rule is that particulars interested in suing the government shall first present their claims to the respective government agency and only after obtaining a negative decision they may pursue a remedy in a court of law. For example, the FTCA 28 U.S.C.A section 2675(a) explicitly mandates that a plaintiff in and individual claim or in a class action first present its petitions to the appropriate federal agency for negotiation and settlement before instituting an action in a federal courts. In brief, exhaustion of administrative remedies is a procedural requirement without with a federal court can not acquired jurisdiction over an individual or class action case.
The EAR doctrine in some cases makes difficult for a plaintiff to meet the standards required by the Federal Rules of Civil Procedure to certify a class action. Constantly, plaintiffs have tried to avoid compliance with this requirement arguing that the exhaustion is waivable either because is futile or collateral to a substantive claim. Although, this strategy has been from time to time successful, the exhaustion doctrine is still one of the favorite defenses against certification of class actions, and one of the easiest ways for courts to get rid off class actions clogging the judicial system. In order to understand how the EAR may impair the ability of plaintiff to certified class actions we will review the statutory requirements to certify a class action and will enumerated the different approaches taken by the courts to decide whether or not the exhaustion requirement is waivable.
I. Class Actions Certification6:
In order to certify a class action both against the particular and the Federal government7, a plaintiff should satisfied sections (a) and (b) of the Rule 23 of the Federal Code of Civil Procedure, and some implicit requirements developed by the courts. It is important to notice that courts do not consider the merits of the plaintiff’s underlying claim in the analysis of a class certification; they limit their analysis to whether or not plaintiff has met the standards of Rule 23.
Section (a) of the Rule, establishes four requirements all of which shall be met by the plaintiff, these are:
1. Numerosity: A plaintiff should proof that the class is so numerous that joinder of class members is impracticable. Some courts have established that forty (40) people is a number that satisfied the numerosity requirement8. However, it is important to notice that this rule does not focus exclusively on numbers but on the impracticality of individual joinder. Because of this, courts take into account any other factors useful to determinate the impracticability of the joinder such as the geographical situation of the member.
2. Commonality: A plaintiff should proof that there are questions of law or facts common to the class. Not all questions of law or fact need to be common to all class members9. The standard for meeting this rule is more qualitative rather than quantitative. This requirement may be satisfied by a single issue common to all members of the class10.
3. Typicality: A plaintiff should proof that the claims or defenses of the class representatives are typical of those of the class. In other words, the class representative shall show that his and each other class member’s claims arise from the same course of events, and both the class representative and each of the class members may use similar legal arguments or theories to prove the defendant’s liability11.
4. Adequacy: The plaintiff shall show that the class representatives including plaintiff and counsel will fairly and adequately protect the interests of the class. Courts apply a two part test in evaluating the adequacy prong of Rule 23(a). First, the court must determine whether the plaintiffs’ interests are common with the interests of the Class. Second, the court must evaluate whether plaintiffs will vigorously pursue the interests of the Class through qualified counsel12. If the court is satisfied that plaintiffs’ interests are not antagonistic to the Class and that Class counsel are sufficiently experienced and capable of prosecuting the case, plaintiffs will have met the requirements.
Moreover, a class representative should proof that at least one of the standards established in Rule 23 (b) is met. 1. That the prosecution of separate actions by or against individual class members would create a risk of (A) inconsistent adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; This rule is intended to protect the defendants from having to comply with judgments that impose conflicting standards of conduct that result from independent actions brought by individual plaintiffs.(B) Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. For example, cases in which claims are made by numerous persons against a fund insufficient to satisfy all claims. 2. That the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole13; and 3. That there are common questions of law or fact that predominate over any individual class member’s questions and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. (This requirement is known as the superiority requirement).
Finally, the class plaintiff should meet at least one of the following implicit requirements established by the courts; these are: 1. that a definable class exists. The court should be able to identify all members of the class by using objective criteria 2. That the named representatives are members of that class, and
3. That the claim of the class is live, not moot. If a claim is not a live claim, the court will dismiss the suit unless a new class representative with a live claim steps forward. However, under certain circumstances, an individual with a moot claim may still serve as a class representative. For example is a conduct is capable of repetition yet evading review. In such cases an individual with a moot claim may serve as a class representative even if the claim became moot before class certification14.
Some of the above requirements may be difficult to meet due to the exhaustion doctrine. For example, in cases where standing to sue is only given to potential class member who have exhausted remedies, the ability of the class representative to create a presumption of impracticability of the joinder may be diminished by his inability to join a class numerous enough to proof the numerosity test. Moreover, in order to meet the superiority requirement established on section (b) of the Rule 23, the plaintiff needs to demonstrate, for example, that a class action is the appropriate mean for expeditious litigation of the issue. This implies that in some way the judicial system will benefit for having only one process instead of thousand of small claims over the same matter. However, it is difficult to imagine that a class action that reunites only few of a large number of potential plaintiffs will in any way limit the number of individual litigation over the same matter. Other sceneries that may be problematic are those where potential plaintiff who have exhausted remedies are not interested in bringing a suit. By default in these cases, the class representative would have to be a member who has not exhausted remedies. The problem is that courts that enforce the exhaustion requirement strictly have frequently denied certification on the grounds that a class representative that has not exhausted remedies cannot rightful represent those potential plaintiffs who have exhausted theirs.
The above examples are only few of the problems a plaintiff may face in order to certify a class action. Therein, the important to have a good counsel able to advice potential class members whether or not they stand any chance of victory if they do not exhausted remedies. Plaintiff should also be aware that the cost of hiring an attorney to argue a waiver may be higher than simple complying with the exhaustion requirement.
II. Waiver of Exhaustion of Administrative Remedies:
In USA there are two types of exhaustion of administrative remedies: judicially imposed and statutorily mandate15. The judicially impose exhaustion was created as a rule in favor of the government allowing them to deal directly with claimants; it is understand as a “proper exercise of discretion” therefore it can be waive. On the other hand , a statutory required exhaustion responds to strictly enforced legislative necessities and few exceptions are allowed in this case16. However, after years of litigation the courts have identified three types of cases where an exception to judicial and statutory exhaustion may be granted17. These are (1) cases in which a claim is collateral to a substantive claim of entitlement. For example, a claim that a government agency is systematically delaying payment of benefits is collateral to a claim for granting of benefits. (2) cases in which plaintiff may proof that complying with exhaustion will cause irreparable harm, and (3) cases in which a party demonstrates that exhaustion of remedies would be a vain or futile act (futility)18.
Although the above categories are broadly accepted, there is not uniformity among Federal and State courts decisions with regard to to the waiver of exhaustion on class actions. According to their decisions, we can divide the courts in three groups.
1. Courts than strictly enforce the exhaustion of administrative remedies requirement:
These courts are inclined to denying class certification if potential plaintiffs (named or not in the complaint) have not met this requirement. The requirement is enforced even in those cases that plaintiff may proof an imminent damage or that the administrative process in place is inefficient to achieve a remedy. For example, in US Express INC et all, v State of New Mexico et all, a 2006 case decided by the Supreme Court of New Mexico, the court established that either when a class actions might be a more convenient process for recovering tax refunds based on identical claims, if the instead of a statute is that the claimant individually initiate a claim the court has not authority to change this scheme.” In the same way, the federal court in Kildare v. Saenz19, decided to strictly enforce the required exhaustion although plaintiffs’ complaint alleged that social security determinations suffered from “systemic” deficiencies which impair their ability to recover their benefits.
2. Courts for which the satisfaction of exhaustion remedies by a class plaintiff avoid the necessity for each class member to satisfy this requirement individually20. For example, the courts in Arizona Dept. of Revenue v. Dougherty, and Bailey v. State of North Carolina21, strongly supports the proposition that the administrative claims of named plaintiffs ordinarily satisfy the exhaustion requirement in tax refund class actions.
3. Courts that freely apply the above enumerated exemptions to exhaustion of remedies, (specially the futility exemption.) For example, in Ward v. State, the South Carolina Supreme Court decided over the issue of whether a party should be required to exhaust his administrative remedies under a state statute when he is challenging the constitutionality of a statute. The court decided that requiring a party to go before an agency or Administrative Law Judge who cannot rule on the constitutionality of a statute would be a futile act22. The same court in Video Gaming Consultants. Inc.. v. South Carolina Dep't of Revenue, established that the reason for this futility is that allowing ALJs to rule on the constitutionality of a statute would violate the separation of powers doctrine23.
III. Conclusion
Because exhaustion of administrative remedies is only one of the many issues that shall be managed in order to certify a class action, it is constantly overlook by counsels complicating in this way, a process that per se in not simple. Although the decision of whether or not a waiver applies to a specific case depends pretty much on the view of the court with jurisdiction over the matter, a timely and conscience analysis of this issue by the class counsel may avoid many undesirable results and unnecessary expenses for class members.
___________
Notes
* DISCLAIMER : Les opinions présentées dans cet article sont celles de l’auteur et n’engagent en aucune manière AMDPA ou le cabinet Drubner & Hartley, LL.C/ The views and opinions presented in this article are strictly those of the author. AMDPA and Drubner & Hartley, LL.C. do not take responsibility for the personal opinions expressed.
1. See, 1 McLaughlin on Class Action § 1:1 (3d ed) quoting, West v. Randall., 29 F.Cas. 718.
2. 1 McLaughlin on Class Action § 1:1 (3d ed)
3. Under the Tucker Act, the United States government may be sued for claims arising out of express or implied contracts to which the government, or one of its agencies, was a party. Suits may be brought for Constitutional claims, particularly taking of property by the government to be compensated under the Fifth Amendment.
4. Typical examples of claims brought under this Act are employment discrimination cases. A party bringing a civil rights action under 42 U.S.C.A. § 1983 is not required to exhaust state remedies before filing suit in federal court. In Patsy v. Board of Regents, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), the Supreme Court held that the plaintiff — who claimed she was denied employment by a state university because of her race and her sex — was not required to exhaust her state administrative remedies before filing her suit in federal court, because such a requirement would be inconsistent with congressional intent in passing civil rights legislation.
5. The Sovereign Immunity doctrine is guaranteed in the Constitution and Federal and State Statutes, and establishes that the government is immune from liability arising out of the activities and conduct of its employers performed within the scope of their governmental duties. For example, In re Katrina canal breaches consolidated litig ( January 30, 2008) the Louisiana Federal Court dismisses a class action against the federal government finding that claims based on the negligent maintenance of the levee system which contribute to the catastrophic events during hurricane Katrina were barred by governmental immunity under the Flood Control Act section 702c, pursuant to “No liability of any kind shall attach to or rest upon the United states for any damage from or by flood waters at any place.”
6. The present document has multiple references taken from the Federal Practice Manual for Legal Aid Attorneys, available at http://ejustice.org/federal_practice_manual_2006/chapter_7/chap7sec4-1.htm
7. State governments have enacted similar class actions rules to those established at the federal level, for a deep analysis and difference that may exist among federal and state class action rules, see State and Foreign Class-Action Rules and Statutes: Difference from- and Lessons For? – Federal Rule 23. Thomas D. Rowe, Jr, Duke Law School Legal studies, research paper No 185(Feb. 2008)
8. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (noting that Newberg on Class Actions “concludes, based on prevailing precedent, that the difficulty in joining as few as 40 class members should raise a presumption that joinder is impractical).
9. Halford v. Goodyear Tire & Rubber Co., 161 F.R.D. 13, 18 (W.D.N.Y. 1995)
10.. Savino v. Computer Credit, Inc., 173 F.R.D. 346, 352 (E.D.N.Y. 1997), (“[t]he critical inquiry is whether the common questions lay at the “core” of the cause of action alleged.”)
11. FleetBoston, 235 F.R.D. at 173 (quoting Walker v. Asea Brown Boveri, Inc., 214 F.R.D. 58, 63 (D. Conn. 2003)).
12. In re Sumitomo Copper Litig., 182 F.R.D. 85, 95 (S.D.N.Y. 1998).
13. This rule is almost automatically satisfied in actions primarily seeking injunctive relief. Bell Atl. Corp., 1999 WL 313771, at *13 (quoting Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 58-59 (3rd Cir. 1994).
14. Gerstein v. Pugh, 420 U.S. 103 (1975); see Portis v. City of Chi., 347 F.Supp. 2d 573 (N.D. Ill. 2004).
15. See, 73 C.J.S. Public Administrative Law and Procedure § 38 (1980).
16. Pullman Co. v. Public Serv. Comm’m, 234 S.C. 365.
17. Bowen v. City of N.Y., 476 U.S. 467 (1986.
18. Moore v. Sumter County Council, 300 S.C. 270, 387 S.E.2d 455 (1990)., Ass’n of Retarded Citizens v. Teaque, 830 F.2d 158 (11th Cir. 1987)
19. Kildare v. Saenz, 325 F.3d 1078 (9th Cir. 2003)
20. 2 Newberg on Class Actions § 5:15, p. 438 (4th ed.2002).
21. Bailey v. State of North Carolina, 348 N.C. 130, 500 S.E.2d 54, 73-75(V) (1998)
22. Ward v. State., 343 S.C. 14, 538 S.E.2d 245
23. Video Gaming Consultants. Inc.. v. South Carolina Dep't of Revenue, Op. No. 25177 (S.C. Sup. Ct. filed July 31, 2000).
LLB Universidad Externado de Colombia
LLM University of Connecticut, School of Law.
Associate at Drubner & Hartley, LL.C.
In United States, a Class Action is a procedural mechanics pursuant to one or more plaintiffs bring a law suit on behalf of a large group of people with whom the plaintiffs share common law issues or factual situations relevant to the case. The main purpose of this action is to encourage the economy and efficiency of the judicial system. Class actions have evolved as an exemption to the judgment in personam or “the necessary party rule”, according to which “all persons materially interested in a subject matter of litigation should be parties to the suit, however numerous they may be.”1 Nowadays, any judgment achieved through class action litigation will result in judgment including those whom the court finds to be members of the class whether or not the judgment is favorable to the class2.
Most of the Class Actions brought against the Federal Government are based on the 1946 Federal Tort Claims Act (FTCA), the 1887 Tucker Act3, or the 1871 Civil rights4. The reason is that these Acts waive the government’s Sovereign Immunity that protects it from being sued under torts or contractual claims5. The waiver of immunity however, is not a waiver of the Exhaustion of Administrative Remedies (EAR). Indeed, the general rule is that particulars interested in suing the government shall first present their claims to the respective government agency and only after obtaining a negative decision they may pursue a remedy in a court of law. For example, the FTCA 28 U.S.C.A section 2675(a) explicitly mandates that a plaintiff in and individual claim or in a class action first present its petitions to the appropriate federal agency for negotiation and settlement before instituting an action in a federal courts. In brief, exhaustion of administrative remedies is a procedural requirement without with a federal court can not acquired jurisdiction over an individual or class action case.
The EAR doctrine in some cases makes difficult for a plaintiff to meet the standards required by the Federal Rules of Civil Procedure to certify a class action. Constantly, plaintiffs have tried to avoid compliance with this requirement arguing that the exhaustion is waivable either because is futile or collateral to a substantive claim. Although, this strategy has been from time to time successful, the exhaustion doctrine is still one of the favorite defenses against certification of class actions, and one of the easiest ways for courts to get rid off class actions clogging the judicial system. In order to understand how the EAR may impair the ability of plaintiff to certified class actions we will review the statutory requirements to certify a class action and will enumerated the different approaches taken by the courts to decide whether or not the exhaustion requirement is waivable.
I. Class Actions Certification6:
In order to certify a class action both against the particular and the Federal government7, a plaintiff should satisfied sections (a) and (b) of the Rule 23 of the Federal Code of Civil Procedure, and some implicit requirements developed by the courts. It is important to notice that courts do not consider the merits of the plaintiff’s underlying claim in the analysis of a class certification; they limit their analysis to whether or not plaintiff has met the standards of Rule 23.
Section (a) of the Rule, establishes four requirements all of which shall be met by the plaintiff, these are:
1. Numerosity: A plaintiff should proof that the class is so numerous that joinder of class members is impracticable. Some courts have established that forty (40) people is a number that satisfied the numerosity requirement8. However, it is important to notice that this rule does not focus exclusively on numbers but on the impracticality of individual joinder. Because of this, courts take into account any other factors useful to determinate the impracticability of the joinder such as the geographical situation of the member.
2. Commonality: A plaintiff should proof that there are questions of law or facts common to the class. Not all questions of law or fact need to be common to all class members9. The standard for meeting this rule is more qualitative rather than quantitative. This requirement may be satisfied by a single issue common to all members of the class10.
3. Typicality: A plaintiff should proof that the claims or defenses of the class representatives are typical of those of the class. In other words, the class representative shall show that his and each other class member’s claims arise from the same course of events, and both the class representative and each of the class members may use similar legal arguments or theories to prove the defendant’s liability11.
4. Adequacy: The plaintiff shall show that the class representatives including plaintiff and counsel will fairly and adequately protect the interests of the class. Courts apply a two part test in evaluating the adequacy prong of Rule 23(a). First, the court must determine whether the plaintiffs’ interests are common with the interests of the Class. Second, the court must evaluate whether plaintiffs will vigorously pursue the interests of the Class through qualified counsel12. If the court is satisfied that plaintiffs’ interests are not antagonistic to the Class and that Class counsel are sufficiently experienced and capable of prosecuting the case, plaintiffs will have met the requirements.
Moreover, a class representative should proof that at least one of the standards established in Rule 23 (b) is met. 1. That the prosecution of separate actions by or against individual class members would create a risk of (A) inconsistent adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; This rule is intended to protect the defendants from having to comply with judgments that impose conflicting standards of conduct that result from independent actions brought by individual plaintiffs.(B) Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. For example, cases in which claims are made by numerous persons against a fund insufficient to satisfy all claims. 2. That the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole13; and 3. That there are common questions of law or fact that predominate over any individual class member’s questions and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. (This requirement is known as the superiority requirement).
Finally, the class plaintiff should meet at least one of the following implicit requirements established by the courts; these are: 1. that a definable class exists. The court should be able to identify all members of the class by using objective criteria 2. That the named representatives are members of that class, and
3. That the claim of the class is live, not moot. If a claim is not a live claim, the court will dismiss the suit unless a new class representative with a live claim steps forward. However, under certain circumstances, an individual with a moot claim may still serve as a class representative. For example is a conduct is capable of repetition yet evading review. In such cases an individual with a moot claim may serve as a class representative even if the claim became moot before class certification14.
Some of the above requirements may be difficult to meet due to the exhaustion doctrine. For example, in cases where standing to sue is only given to potential class member who have exhausted remedies, the ability of the class representative to create a presumption of impracticability of the joinder may be diminished by his inability to join a class numerous enough to proof the numerosity test. Moreover, in order to meet the superiority requirement established on section (b) of the Rule 23, the plaintiff needs to demonstrate, for example, that a class action is the appropriate mean for expeditious litigation of the issue. This implies that in some way the judicial system will benefit for having only one process instead of thousand of small claims over the same matter. However, it is difficult to imagine that a class action that reunites only few of a large number of potential plaintiffs will in any way limit the number of individual litigation over the same matter. Other sceneries that may be problematic are those where potential plaintiff who have exhausted remedies are not interested in bringing a suit. By default in these cases, the class representative would have to be a member who has not exhausted remedies. The problem is that courts that enforce the exhaustion requirement strictly have frequently denied certification on the grounds that a class representative that has not exhausted remedies cannot rightful represent those potential plaintiffs who have exhausted theirs.
The above examples are only few of the problems a plaintiff may face in order to certify a class action. Therein, the important to have a good counsel able to advice potential class members whether or not they stand any chance of victory if they do not exhausted remedies. Plaintiff should also be aware that the cost of hiring an attorney to argue a waiver may be higher than simple complying with the exhaustion requirement.
II. Waiver of Exhaustion of Administrative Remedies:
In USA there are two types of exhaustion of administrative remedies: judicially imposed and statutorily mandate15. The judicially impose exhaustion was created as a rule in favor of the government allowing them to deal directly with claimants; it is understand as a “proper exercise of discretion” therefore it can be waive. On the other hand , a statutory required exhaustion responds to strictly enforced legislative necessities and few exceptions are allowed in this case16. However, after years of litigation the courts have identified three types of cases where an exception to judicial and statutory exhaustion may be granted17. These are (1) cases in which a claim is collateral to a substantive claim of entitlement. For example, a claim that a government agency is systematically delaying payment of benefits is collateral to a claim for granting of benefits. (2) cases in which plaintiff may proof that complying with exhaustion will cause irreparable harm, and (3) cases in which a party demonstrates that exhaustion of remedies would be a vain or futile act (futility)18.
Although the above categories are broadly accepted, there is not uniformity among Federal and State courts decisions with regard to to the waiver of exhaustion on class actions. According to their decisions, we can divide the courts in three groups.
1. Courts than strictly enforce the exhaustion of administrative remedies requirement:
These courts are inclined to denying class certification if potential plaintiffs (named or not in the complaint) have not met this requirement. The requirement is enforced even in those cases that plaintiff may proof an imminent damage or that the administrative process in place is inefficient to achieve a remedy. For example, in US Express INC et all, v State of New Mexico et all, a 2006 case decided by the Supreme Court of New Mexico, the court established that either when a class actions might be a more convenient process for recovering tax refunds based on identical claims, if the instead of a statute is that the claimant individually initiate a claim the court has not authority to change this scheme.” In the same way, the federal court in Kildare v. Saenz19, decided to strictly enforce the required exhaustion although plaintiffs’ complaint alleged that social security determinations suffered from “systemic” deficiencies which impair their ability to recover their benefits.
2. Courts for which the satisfaction of exhaustion remedies by a class plaintiff avoid the necessity for each class member to satisfy this requirement individually20. For example, the courts in Arizona Dept. of Revenue v. Dougherty, and Bailey v. State of North Carolina21, strongly supports the proposition that the administrative claims of named plaintiffs ordinarily satisfy the exhaustion requirement in tax refund class actions.
3. Courts that freely apply the above enumerated exemptions to exhaustion of remedies, (specially the futility exemption.) For example, in Ward v. State, the South Carolina Supreme Court decided over the issue of whether a party should be required to exhaust his administrative remedies under a state statute when he is challenging the constitutionality of a statute. The court decided that requiring a party to go before an agency or Administrative Law Judge who cannot rule on the constitutionality of a statute would be a futile act22. The same court in Video Gaming Consultants. Inc.. v. South Carolina Dep't of Revenue, established that the reason for this futility is that allowing ALJs to rule on the constitutionality of a statute would violate the separation of powers doctrine23.
III. Conclusion
Because exhaustion of administrative remedies is only one of the many issues that shall be managed in order to certify a class action, it is constantly overlook by counsels complicating in this way, a process that per se in not simple. Although the decision of whether or not a waiver applies to a specific case depends pretty much on the view of the court with jurisdiction over the matter, a timely and conscience analysis of this issue by the class counsel may avoid many undesirable results and unnecessary expenses for class members.
___________
Notes
* DISCLAIMER : Les opinions présentées dans cet article sont celles de l’auteur et n’engagent en aucune manière AMDPA ou le cabinet Drubner & Hartley, LL.C/ The views and opinions presented in this article are strictly those of the author. AMDPA and Drubner & Hartley, LL.C. do not take responsibility for the personal opinions expressed.
1. See, 1 McLaughlin on Class Action § 1:1 (3d ed) quoting, West v. Randall., 29 F.Cas. 718.
2. 1 McLaughlin on Class Action § 1:1 (3d ed)
3. Under the Tucker Act, the United States government may be sued for claims arising out of express or implied contracts to which the government, or one of its agencies, was a party. Suits may be brought for Constitutional claims, particularly taking of property by the government to be compensated under the Fifth Amendment.
4. Typical examples of claims brought under this Act are employment discrimination cases. A party bringing a civil rights action under 42 U.S.C.A. § 1983 is not required to exhaust state remedies before filing suit in federal court. In Patsy v. Board of Regents, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), the Supreme Court held that the plaintiff — who claimed she was denied employment by a state university because of her race and her sex — was not required to exhaust her state administrative remedies before filing her suit in federal court, because such a requirement would be inconsistent with congressional intent in passing civil rights legislation.
5. The Sovereign Immunity doctrine is guaranteed in the Constitution and Federal and State Statutes, and establishes that the government is immune from liability arising out of the activities and conduct of its employers performed within the scope of their governmental duties. For example, In re Katrina canal breaches consolidated litig ( January 30, 2008) the Louisiana Federal Court dismisses a class action against the federal government finding that claims based on the negligent maintenance of the levee system which contribute to the catastrophic events during hurricane Katrina were barred by governmental immunity under the Flood Control Act section 702c, pursuant to “No liability of any kind shall attach to or rest upon the United states for any damage from or by flood waters at any place.”
6. The present document has multiple references taken from the Federal Practice Manual for Legal Aid Attorneys, available at http://ejustice.org/federal_practice_manual_2006/chapter_7/chap7sec4-1.htm
7. State governments have enacted similar class actions rules to those established at the federal level, for a deep analysis and difference that may exist among federal and state class action rules, see State and Foreign Class-Action Rules and Statutes: Difference from- and Lessons For? – Federal Rule 23. Thomas D. Rowe, Jr, Duke Law School Legal studies, research paper No 185(Feb. 2008)
8. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (noting that Newberg on Class Actions “concludes, based on prevailing precedent, that the difficulty in joining as few as 40 class members should raise a presumption that joinder is impractical).
9. Halford v. Goodyear Tire & Rubber Co., 161 F.R.D. 13, 18 (W.D.N.Y. 1995)
10.. Savino v. Computer Credit, Inc., 173 F.R.D. 346, 352 (E.D.N.Y. 1997), (“[t]he critical inquiry is whether the common questions lay at the “core” of the cause of action alleged.”)
11. FleetBoston, 235 F.R.D. at 173 (quoting Walker v. Asea Brown Boveri, Inc., 214 F.R.D. 58, 63 (D. Conn. 2003)).
12. In re Sumitomo Copper Litig., 182 F.R.D. 85, 95 (S.D.N.Y. 1998).
13. This rule is almost automatically satisfied in actions primarily seeking injunctive relief. Bell Atl. Corp., 1999 WL 313771, at *13 (quoting Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 58-59 (3rd Cir. 1994).
14. Gerstein v. Pugh, 420 U.S. 103 (1975); see Portis v. City of Chi., 347 F.Supp. 2d 573 (N.D. Ill. 2004).
15. See, 73 C.J.S. Public Administrative Law and Procedure § 38 (1980).
16. Pullman Co. v. Public Serv. Comm’m, 234 S.C. 365.
17. Bowen v. City of N.Y., 476 U.S. 467 (1986.
18. Moore v. Sumter County Council, 300 S.C. 270, 387 S.E.2d 455 (1990)., Ass’n of Retarded Citizens v. Teaque, 830 F.2d 158 (11th Cir. 1987)
19. Kildare v. Saenz, 325 F.3d 1078 (9th Cir. 2003)
20. 2 Newberg on Class Actions § 5:15, p. 438 (4th ed.2002).
21. Bailey v. State of North Carolina, 348 N.C. 130, 500 S.E.2d 54, 73-75(V) (1998)
22. Ward v. State., 343 S.C. 14, 538 S.E.2d 245
23. Video Gaming Consultants. Inc.. v. South Carolina Dep't of Revenue, Op. No. 25177 (S.C. Sup. Ct. filed July 31, 2000).
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