Due Discretion: On the Need for Multidistrict Litigation Transferee Judge Discretion in Interpreting the Federal Rules of Civil Procedure

With multidistrict litigation, innovation is the name of the game. Congress recognized and addressed this crux when, in the face of the soon-to-be crumbling federal judiciary caused by an exponentially increasing federal docket, it passed the Multidistrict Litigation (MDL) Statute, codified at 23 U.S.C. § 1407. The MDL Statute authorizes the consolidation and coordination of multidistrict litigation in federal courts “when civil actions involving one or more common questions of fact are pending in different districts.” Once the Judicial Panel on Multidistrict Litigation—a statutorily mandated panel of seven judges, appointed by the Chief Justice of the Supreme Court, that initiates proceedings—decides to aggregate actions through the MDL mechanism, “such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.” After the cases are aggregated before a single federal judge, that transferee judge possesses all of the powers of any district judge and may decide all dispositive motions up until trial. The transferee judge, always with the panel’s rubber stamp of approval, can transfer cases back to their original courts at the judge’s discretion. But this seldom happens because of a transferee judge’s enormous power to settle or terminate cases.

The MDL Statute was born out of a need to solve the then-oncoming surge in mass litigation—specifically, the electrical equipment antitrust litigation. With Chief Justice Warren’s creation of an emergency “Co-ordinating Committee for Multiple Litigation of the United States District Courts” and the committee’s decision to respond with a number of ad hoc procedures to eventually terminate the electrical equipment litigation in 1967 (such as aggressive case management and consolidated national discovery), the federal judiciary dodged a bullet. But the judiciary remained on thin ice, with some members of the committee presaging a “litigation explosion.” Judicial coddlers of the MDL scheme, like Judge Murrah of the United States Court of Appeals for the Tenth Circuit, felt a need to arm judges with the ability to react innovatively, much like how the committee responded following the electrical equipment onslaught of cases. A separate statute, as opposed to a mere amendment to the Federal Rules of Civil Procedure (Rules), was therefore necessary to permanentize the novel aggregation mechanism. It is in this context that Congress created the MDL statute.

While the MDL Statute provides transferee MDL judges—possessing the full powers a federal judge typically enjoys—with the authority to preside over nationwide aggregate actions deemed MDL-worthy for pre-trial proceedings, it also does much more. Notably, although not beyond ordinary judicial powers, the MDL Statute bolsters a transferee judge’s congenital powers, such as case management authority. The statute thus provides the judge with the ability and discretion to innovatively proceed within the reasonable bounds of the Rules (as opposed to in the avant-garde) “for the convenience of parties and witnesses” to “promote the just and efficient conduct of such actions”—as the MDL Statute so requires.

Notwithstanding the MDL context, such a position is consistent with the Rules, which are designed to meld together law and equity and their respective former procedural systems, striking a careful balance between trans-substantive procedure and substantive application of the law. This careful dance has stood the test of time to a large extent because of the Rules’ elasticity. That is, numerous Rules afford lower courts with equitable discretion to achieve a just resolution in particular circumstances.

But the Rules’ suppleness has been under sustained attack, and as a result, the effectiveness of MDLs has been stymied. For the last three decades, courts have increasingly interpreted the Rules by way of the plain meaning doctrine. And although Justice Scalia’s new textualism has been trending mainstream writ large, its application regarding the Rules’ interpretation is particularly troubling. In essence, the plain language approach’s interpretive nature goes against the very spirit of the Rules and calls into question whether the Rules can survive under the sharp and unforgiving edges of plain meaning interpretation. Without paying any attention to the purpose of the Rules—as plainly spelled out in Rule 1, which states that “[the Rules] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding”—such an interpretation could, and has begun to, frame the Rules so as to be unworkable and, therefore, in need of constant amending.

Beyond that, unlike statutory interpretation, judicial interpretation of the Rules does not raise the usual separation of power concerns intrinsic in cases involving statutory construction. After all, Congress delegated rulemaking powers to the judiciary through the Rules Enabling Act. The Act calls for the inclusion of both federal judges and members of the public in the rulemaking process, requiring public access and allowing for input in the rulemaking committee meetings (added via the 1988 Act). Further, the Act mandates explanatory notes for proposed amendments. Yet, throughout the rulemaking process, the judicial branch is in the driver’s seat, taking a principal role in the promulgation process. It is true that once an amendment receives the necessary support of several decision-making bodies, Congress has the power to prevent that amendment from going into effect. But we would be foolish to mistake congressional acquiescence in the passage of amendments to the Rules and active legislation through its ordinary course as one and the same. Ultimately, it is the judiciary that takes center stage.

In this sense, the rulemaking process under the Rules Enabling Act more appropriately parallels agency rulemaking practices under the Administrative Procedure Act (APA). For instance, as part of the Rules amendment process, the Advisory and Standing Committees must “provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minority or other separate views.” Similarly, the APA requires agencies to respond in some form to all comments received during the public comment period after considering pertinent matters from the public comment process.

With the authority to promulgate their own rules, agencies also have leeway in interpreting appropriate ambiguous statutory or regulatory language under Chevron and Auer deference, respectively. Chevron deference requires that federal courts defer to an agency’s interpretation of the underlying administrative statute where the statute is ambiguous or silent on the issue in question and the agency’s interpretation is considered reasonable. Auer deference, on the other hand, is applied to a reasonable agency interpretation of its ambiguous rules and regulations unless such interpretation is “plainly erroneous or inconsistent with the regulation.” Both methods gather support from two primary policy considerations. First, agencies, rather than federal judges, are best equipped to make a calculated and informed interpretation decision. As Professor Louis Jaffee explained, “[s]ince procedural decisions should be made to serve the substantive task, it follows that expertness in matters of substance are relevant to the exercise of procedural discretion.” Second, agency deference allows federal agencies to operate in a more efficient manner, freeing them from having to wait for judicial approval of every agency-related interpretation or congressional action addressing each legislative ambiguity (or an agency action addressing each rulemaking ambiguity in the context of Auer deference). Additionally, and specific to Chevron deference, some Supreme Court justices, one being Justice Scalia, have reasoned that following Congress’s express delegation of administrative power of a particular statute to an agency, that agency also has the delegated authority and responsibility to interpret the administrative statute.

Yet unlike judicial deference to agency interpretations, not much has been written regarding exceptional interpretation and judicial review methods specific to the Rules. A small handful of academics have called for a range of distinct interpretive cannons or construction methods when it comes to the Rules—three thorough discussions on the topic being (1) Judge Moore’s The Supreme Court’s Role in Interpreting the Federal Rules of Civil Procedure; (2) Professor Struve’s The Paradox of Delegation, Interpreting the Federal Rules of Civil Procedure; and (3) Professor Mulligan’s Civil Rules Interpretive Theory. One theory for Rule interpretation suggested by Mulligan, the Inherent-Authority Model, “asserts that the Court’s engagement with the Rules is more of a common-law-like, freewheeling, policy-setting endeavor than a traditional interpretative task.” Another, the regime-specific purposive model, takes the view that “courts face a traditional interpretive chore in Rules cases, but contends that, unlike statutes, the Rules come with a regime-specific commitment to a purposive, as contrasted with a neo-textualist, approach to interpretation.”

All of these academic discussions, however, fail to so much as mention MDLs or the MDL process—even as MDLs continue to make up more than half of the entire federal civil docket. Instead, they focus on broad schemes in sticking with the Rules’ trans-substantive nature, casting a wide net. The similarities between the dynamism of agency rulemaking and that of amending the Rules are undeniable. And this likely calls for a serious inquiry into whether the Rules as a whole should be interpreted distinctively.

The peculiar dynamics at play in the context of MDLs, however, give rise to a heightened need for a new and more flexible approach to judicial review of transferee judge interpretation of the Rules—one at least specific to the MDL process that accounts for competing authorities and grants adequate judicial discretion. Discretion, in turn, would provide transferee judges, who are in the best position to make equitable decisions, with the flexibility they need to innovate reasonably in the face of unknown and novel legal complexity that comes with mass aggregate litigation, and thus “promote the just and efficient conduct of such actions” as the MDL statute so requires.

Calen Bennett: Associate Editor, California Law Review, and Berkeley Law Class of 2021.