Nonacquiescence: Outlaw Agencies, Imperial Courts, and the Perils of Pluralism

Abstract

Federal administrative agencies at times claim to be bound to follow only Supreme Court decision, not decisions of the intermediate courts as precedent beyond the judgment of the individual case. They typically justify this position on the need for uniformity in the administration of their programs. In this article, I provide a taxonomy of different types of nonacquiscence, distinguishing formal (explicitly announced by the agency) and informal nonacquiscence, as well as intracircuit (refusal to follow circuit court precedent in later cases arising within the same circuit) from intercircuit (refusal to apply court of appeals precedents outside the circuit of the court issuing the opinion) nonacquiescence. I identify different reasons why agencies engage in nonacquiescence – including political disputes, budget pressures, bureaucratic inertia, and factors relating to the institutional structure of the agency, including the effects of combining functions within the agency, volume of precedents, and complex venue provisions for judicial review. In addition, I note that differences in agency function, structure, and private parties affected by agency action make the practice less justifiable in some contexts, such as those where the agency deals with a high volume of unrepresented parties, than in others.My thesis is that a permanent judicial resolution of the problem of nonacquiescence is unlikely, because our society and our legal culture struggles with fundamental and unresolved value conflicts between judicial and agency perspectives. I review four potential foundations for a doctrinal approach to nonacquiescence – the constellation of doctrines known as stare decisis, controlling case doctrine and law of the circuit; issue preclusion/collateral estoppels; due process; and concerns based on separation of powers, institutional competence, and congressional attention. Ultimately, however, I suggest that none of these approaches is likely to provide a stable resolution for the value conflicts underlying the problem.

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