Document Type

Article

Publication Title

Yale Law Journal

Abstract

The status of agency nonacquiescence in our legal system remains uncertain. Despite considerable writings on the subject, there has been no systematic evaluation of the practice's costs and benefits. Neither has there been a serious proposal for reducing, in a manner consistent with the respective institutional responsibilities of an agency and its reviewing court, the debilitating tensions between these two institutions that nonacquiescence engenders. Our study principally addresses these issues. Section I is primarily definitional. First, it establishes that the Supreme Court's refusal to apply nonmutual collateral estoppel against the federal government, in United States v. Mendoza, does not, by itself, resolve the legitimacy of nonacquiescence. Section I also categorizes the different types of administrative action that might be included under the rubric of nonacquiescence: (1) intercircuit nonacquiescence, in which the agency refuses to follow the case law of a court of appeals other than the one that will review its decision; (2) intracircuit nonacquiescence, in which the agency refuses to follow the case law of the court of appeals that will review its decision; and (3) nonacquiesence in the face of venue choice, where review may be had either in a court that has rejected the agency's position or in one that has not. Finally, this section describes the possible components of an agency's nonacquiescence policy. Section II presents detailed case studies of the nonacquiescence practices of SSA and the NLRB, which have been most visible, as well as a brief survey of how other federal agencies have engaged in nonacquiescence. We show that nonacquiescence is pervasive and longstanding, and examine the interaction between an agency's structure and the ways that it deals with adverse court decisions. Section III considers the constitutionality of intracircuit nonacquiescence, the category that raises the most troubling questions. Even here, we reject the argument, advanced by several courts and commentators, that there is a per se constitutional bar against nonacquiescence. We do not find it necessary to consider whether this practice, if left entirely unchecked, might not, under some circumstances, raise constitutional concerns; we believe that any nonacquiescence that might come close to transgressing constitutional norms would also be proscribed by nonconstitutional constraints. Section IV evaluates the policy considerations implicated by nonacquiescence to determine whether limitations on the practice are desirable. We conclude that intracircuit nonacquiescence can be justified only as an interim measure that allows the agency to maintain a uniform administration of its governing statute at the agency level, and only while federal law on the subject remains in flux and the agency is making reasonable attempts to persuade the courts to validate its position. This limitation is informed, in large part, by the undesirable distributional consequences that arise when only parties with sufficient resources to pursue an appeal to the courts can benefit from a favorable rule of law.1" With respect to the other two categories of nonacquiescence, we do not believe that any restrictions are desirable. Section V sets out the appropriate judicial response to intracircuit nonacquiescence. We conclude that unjustifiable intracircuit nonacquiescence contravenes the rationality review under the Administrative Procedure Act (APA). Section VI considers the question of venue choice. While we believe that nonacquiescence should not be limited where there is venue choice, we favor the elimination of such choice because it unnecessarily exacerbates agency-court tensions.

First Page

679

DOI

https://doi.org/10.2307/796731

Volume

98

Publication Date

1989

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