Separation of Powers and Second Opinions: Protecting the Government's Role in Developing the Law by Limiting Nationwide Class Actions against the Federal Government

Article excerpt

I. INTRODUCTION .................... 944

II. GORBACH V. RENO: AN ILLUSTRATIVE CASE .................... 946

III. THE SUPREME COURT CASES .................... 955

A. Califano v. Yamasaki; The Power to Certify on a Nationwide Scope .................... 955

B. United States v. Mendoza: The Federal Government as Litigant, and its Greater Role in Developing the Law.... 956

C. Reexamining Califano and Mendoza - The Detrimental Effect of the Nationwide Class Action on Development of the Law .................... 960

IV. THE TENSION BETWEEN UNIFORMITY/EFFICIENCY AND THE DEVELOPMENT OF THE LAW THROUGH DEBATE AMONG THE LOWER COURTS .................... 964

V. THE GOVERNMENT, AS A LITIGANT, IS DIFFERENT THAN PRIVATE PARTIES .................... 971

A. The Nature of the Issues and the Constitutional Design .971

B. The Geographical Breadth and Frequency of Government Litigation .................... 978

C. The Policy and Political Role of the United States Solicitor General .................... 982

VI. A PROPOSAL FOR A REBUTTABLE PRESUMPTION AGAINST CERTIFYING NATIONWIDE CLASS ACTIONS AGAINST THE FEDERAL GOVERNMENT .................... 987

VII. CONCLUSION .................... 995

I. INTRODUCTION

The nationwide class action vehicle provides an efficient means of achieving nationwide uniformity. Thus, at first glance, its use against the federal government on issues relating to federal law seems particularly appropriate. Yet, it comes with a price: an arguably unconstitutional roadblock on the federal government's role in development of the law, as well as an impediment to development through debate among the lower federal courts. This detrimental effect of a nationwide class was recognized by the Supreme Court in Califano v. Yamasaki.

Perhaps more relevant to the issues raised in this Article is United States v. Mendoza? In Mendoza, the Supreme Court recognized that federal government litigation plays a critical role in developing the law, making the United States different than private parties.3 Although Mendoza dealt with non-mutual offensive collateral estoppel,4 its reasoning is applicable to nationwide class certification in many meaningful ways. As explained in this Article, because the federal government, as a litigant, is different than a private party, the price of developing the law is too high in relation to the uniformity and efficiency it provides.5 Accordingly, this Article proposes a narrowly focused and rebuttable presumption against certifying nationwide class actions against the federal government.6 This proposal protects the coequal branches' roles in developing the law, allows legal issues to "percolate"7 among the lower federal courts, and still assures some level of efficiency and uniformity within the federal judiciary's statutory and constitutional design.8 By protecting the ability to obtain a second opinion, the proposal reinforces important separation of powers principles and encourages the development of law that is of public importance.9

Part II examines an actual nationwide class action against the federal government to illustrate some of the critical concerns raised by such class certifications. As addressed in this Part, as well as throughout the Article, the Gorbach v. Reno10 litigation provides an excellent illustration of these concerns because it raised an important issue of first impression with substantial policy and political ramifications, demonstrated the certifying court's disregard for other pending parallel litigation, and provided evidence of counterintuitive inefficiencies and forum-shopping.

Part III explores the two critical decisions of the United States Supreme Court: Califano v. Yamasaki and United States v. Mendoza. First, it explains these two critical decisions, focusing on the reasoning relevant to the question of how nationwide class actions against the federal government impact the development of the law. …