Consolidation and Severance of Cases

By Daniel G. Martin, Administrative Law Judge
October 2006

Director’s note: OAH is committed to fairness and making hearings accessible to all. This article is part of a series of informational articles to educate the public and parties who appear before us about the hearing process and how to better present their cases. The following article may be found at OAH’s website at www.azoah.com along with all previous articles published in the OAH Newsletter.

Consolidation

Consolidation is the process by which two or more separate cases are joined for purposes of an administrative hearing. At the Office of Administrative Hearings (“OAH”), cases may be consolidated in one of two ways: (1) the referring agency consolidates the cases prior to transmitting them to the OAH for hearing; or (2) one or more of the parties files a motion to consolidate after the cases have been transferred and set for hearing.

Motions to consolidate are governed by Arizona Administrative Code ("A.A.C.") Rule R2-19-109. According to this rule, cases are eligible for consolidation if (1) the cases involve substantially similar factual or legal issues, or (2) all parties are the same. See A.A.C. Rule R2-19-109(A).

Procedure

A party who is considering a motion to consolidate must first determine whether the cases to be consolidated have all been referred to the OAH for hearing (this may be done by looking up the cases on the OAH's website, www.azoah.com). The OAH does not have jurisdiction over cases that have not yet been referred for hearing, and therefore is unable to consolidate such cases with existing cases on the OAH's docket. A motion to consolidate a case that has not yet been referred for hearing (and which therefore is not yet subject to the OAH's jurisdiction) will be denied as having been prematurely filed.

Once it has been determined that all of the cases for which consolidation is being sought are within the jurisdiction of the OAH, a formal motion to consolidate may be filed. By rule, that motion must be directed to the Administrative Law Judge who is assigned to the case with the earliest pending hearing date. See A.A.C. Rule R2-19-109(B). Again, this information may be determined by reviewing the case information available on the OAH's website. A motion to consolidate, like any other motion filed with the OAH, must be copied to every other party involved in the matters for which consolidation is being requested. Also, although not required, the moving party should consider providing a courtesy copy of the motion to the Administrative Law Judge(s) assigned to the other case(s) for which consolidation is being sought.

The principle that will most directly guide the Administrative Law Judge's decision as to whether to grant a motion to consolidate is whether consolidation will increase administrative efficiency. Thus, every motion to consolidate should explain, in detail, how such efficiency will be attained. As a general rule, a motion that simply recites the criteria listed in A.A.C. Rule R2-19-109(A) will not be considered persuasive. The Administrative Law Judge must be able to understand why convening a single hearing will make for a more orderly presentation of evidence, and how consolidation will facilitate the resolution of the issues presented.

If the motion to consolidate is granted, the hearing typically will be scheduled on the latest pending hearing date, and will be assigned to the Administrative Law Judge who is scheduled to hear the case on that date. Thus, the practical effect of consolidation in most instances is that the earlier case(s) will be continued to the later hearing date. A party may, however, request that the hearing be accelerated to an earlier hearing date, or that the consolidated cases be set for hearing on a different date. Such requests should be included in the party's motion.

Practical Considerations

As a general rule, a motion to consolidate is most likely to be granted when the basis for the motion is the fact that all of the parties are the same (though a showing still must be made that the consolidation will promote administrative efficiency). A more difficult issue arises when the circumstances involve a single complainant and multiple respondents (as can be the case, for example, in matters arising out of the Registrar of Contractors where a complaint has been filed against both a general contractor and one or more subcontractors). In this situation, a showing for consolidation may be made when the complaint arises out of the same basic fact pattern; however, the moving party still must demonstrate that efficiency will best be served by proceeding against all of the respondents at the same time. A third scenario involves the case of multiple complainants and a single respondent. Similar to the situation involving the single complainant and multiple respondents, one of the key inquiries will be whether the complaints arise from the same or a similar set of facts. Consolidation is less likely to be granted if each of the complainants is raising a separate set of issues. The final scenario involves the case of multiple complainants and multiple respondents. This situation is the least likely to give rise to consolidation, as the degree of complexity generated by the involvement of multiple parties on both sides will generally be considered a barrier, rather than an aid, to efficient case resolution through a single hearing.

In each of the above situations, the final determination as to whether consolidation will be permitted lies squarely within the discretion of the Administrative Law Judge to whom the motion is directed. Parties considering consolidation can advance their cause by filing their motions as early as possible in the process, and by concisely identifying each of the reasons why consolidation should be granted.

Severance

Severance, as the name implies, is the process by which two or more consolidated cases are severed from each other so that each may be heard individually. In accordance with A.A.C. Rule R2-19-109(D), cases may be severed upon motion by one or more of the parties, or in the discretion of the assigned Administrative Law Judge.

Severance is less common than consolidation, but may be ordered when the assigned Administrative Law Judge concludes that the cases involved contain sufficiently different issues of fact and/or law that continued consolidation will not promote efficient case resolution. Orders for severance are most common in cases that are consolidated prior to their referral to the OAH for hearing. However, on occasion an Administrative Law Judge may determine that a case previously consolidated upon motion has simply proved too unwieldy, or that consolidation did not give rise to the efficiencies believed to be present at the time of consolidation, and order severance.

In contrast to a motion for consolidation, a motion for severance should explain to the Administrative Law Judge why continued consolidation will not promote administrative efficiency. Some examples of grounds on which a motion to sever may be granted include (1) the existence of different parties with divergent interests, (2) the absence of a common set of operative facts, (3) distinct issues of law, and/or (4) different or contradictory requests for relief.

If an order for severance is issued, the newly separated cases will be re-set for hearing. If a party filing a motion for severance has any preference for particular hearing dates (including retaining the original hearing date), such preference should be expressed in the motion.

Conclusion

As can be seen from the foregoing discussion, the determination as to whether to grant a motion to consolidate or sever depends heavily on the particular facts and circumstances of the cases involved. Thus, parties should exercise particular care in explaining why consolidation or severance should be granted, and provide specific analysis as to how the granting of their motion will contribute to administrative efficiency.