Agency Nonacquiescence: An Overview of Constitutional and Practical Considerations

Agency Nonacquiescence: An Overview of Constitutional and Practical Considerations

Agency Nonacquiescence: An Overview of
December 26, 2023
Constitutional and Practical Considerations
Benjamin M. Barczewski
When Congress delegates the power to regulate to a federal agency, it often also provides for
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judicial review of that agency’s actions. Reviewing courts are generally empowered to “set

aside” agency action that is arbitrary and capricious or contrary to law. Agency nonacquiescence
may arise after a court sets aside agency action because the court disagrees with the agency’s

interpretation of law. The agency must determine whether it will conform its future actions to
that court’s interpretation of law—acquiescence—or whether it will continue to apply its preferred interpretation in future
actions—nonacquiescence. Nonacquiescence is possible primarily, although not exclusively, in situations when a reviewing
court overturns a decision made by an agency through adjudication rather than rulemaking.
Nonacquiescence raises foundational questions about which branch of government (the executive or the judiciary) has the
ultimate authority to interpret federal statues and about the federal judiciary’s authority to issue decisions that bind future
agency actions, not just the parties before the court.
Nonacquiescence can be broken down into three distinct categories. Intercircuit nonacquiescence, intracircuit
nonacquiescence, and venue choice nonacquiescence. Intercircuit nonacquiescence refers to the practice of an agency
refusing to follow the case law of one court of appeals in actions it takes that will be reviewed by a different court of appeals.
Intracircuit nonacquiescence refers to the practice of an agency refusing to follow the case law of a court of appeals that will
review the agency’s decision. Venue choice nonacquiescence refers to a situation in which judicial review may be had in
either a court that has rejected the agency’s position or in a court that has not. While all forms of nonacquiescence can be
controversial in certain circumstances, intracircuit nonacquiescence has generated the most criticism. Intracircuit
nonacquiescence represents the most direct challenge to the federal courts of appeals’ authority to determine the meaning of
federal law for all actors within their geographic jurisdiction. Nonetheless, intracircuit nonacquiescence may be justified in
some instances by Congress’s delegation of regulatory authority to the agency.
An agency’s ability to engage in nonacquiescence of any kind is determined by a number of features of the relationship
between executive agencies, the federal courts, and Congress. Nonacquiescence is a viable option when (1) the federal
government is free to relitigate a legal issue it lost in a prior case, (2) the region in which the agency is taking action is not
subject to the jurisdiction of the court that ruled against the agency, (3) the relief granted by the federal courts to parties
challenging the agency’s action is limited to the parties’ case, (4) the challenged agency action applies to a limited number of
parties before the agency, and (5) there is more than one judicial venue in which to challenge the agency action.
Across the entire federal bureaucracy, agency nonacquiescence is the exception, not the rule. Nonetheless, agencies have
engaged in nonacquiescence of various kinds since at least the 1940s. Some agencies, such as the Social Security
Administration, engaged in a years-long and wide-ranging policy of intracircuit nonacquiescence to court decisions
invalidating various methods the agency used to reduce benefits to certain beneficiaries. Other agencies, such as the
Environmental Protection Agency and the National Labor Relations Board, have engaged in the less controversial intercircuit
and venue choice forms of nonacquiescence.
Using its constitutional power over administrative agencies, Congress can define in what situations (if any) nonacquiescence
is permissible. Congress has from time to time considered limiting or banning nonacquiescence, most notably at the Social
Security Administration, but has yet to enact any legislation regulating the practice.
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Contents
Introduction ..................................................................................................................................... 1
Defining Agency Nonacquiescence ................................................................................................. 3
The Federal Government’s Right to Relitigate ................................................................................ 4
Percolation of Legal Issues Across the Federal Courts ................................................................... 6
Statutory Venue Provisions ............................................................................................................ 10
Agency Actions and Judicial Review Under the Administrative Procedure Act (APA) ................. 11
Agency Action Under the APA ............................................................................................... 12
Judicial Review Under the APA .............................................................................................. 12
The Effect of Injunctions on Nonacquiescence ....................................................................... 13
Examples of Agency Nonacquiescence ......................................................................................... 14
Social Security Administration: Intracircuit Nonacquiescence ............................................... 14
Judicial Reaction to the SSA’s Nonacquiescence ............................................................. 15
Congressional Reaction to the SSA’s Nonacquiescence Policy ........................................ 16
Environmental Protection Agency: Intercircuit Nonacquiescence .......................................... 16
National Labor Relations Board (NLRB): Venue Choice Nonacquiescence .......................... 17
Criticism and Support of Nonacquiescence................................................................................... 19
Intercircuit Nonacquiescence .................................................................................................. 19
Intracircuit Nonacquiescence .................................................................................................. 19
Separation of Powers ........................................................................................................ 19
Practical Considerations: Uniformity and Fairness .......................................................... 21
Considerations for Congress.......................................................................................................... 22

Figures
Figure 1. Geographic Boundaries of the Federal Courts ................................................................. 7

Contacts
Author Information ........................................................................................................................ 23

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Agency Nonacquiescence: An Overview of Constitutional and Practical Considerations

Introduction
Imagine that a federal agency promulgates a new regulation that establishes a uniform process for
adjudicating certain federal benefits. The U.S. Court of Appeals for the Eleventh Circuit, which
has jurisdiction over three U.S. states, invalidates a benefits decision under that regulation,
holding that the agency must use a different process. Now, the agency faces some choices: Should
it avoid using its new adjudication process altogether, even in the other 47 states? Should it
continue to use its new process in other states and defend that process in different courts? Can it
apply that process to other benefits claimants in the Eleventh Circuit who may not have been a
party to the original case?
Some of the agency’s possible choices in this situation would involve a practice known as agency
nonacquiescence. This report discusses the various forms of agency nonacquiescence, examines
the elements of the relationship between federal courts and agencies that make nonacquiescence
possible, and provides an overview of the arguments for and against the practice.
When Congress delegates the power to regulate to a federal agency, it often also provides for
judicial review of that agency’s actions.1 Reviewing courts may “set aside” agency action that is
arbitrary and capricious or contrary to law.2 Agency nonacquiescence may arise after a court sets
aside agency action because the court disagrees with the agency’s interpretation of law. The
agency must determine whether it will conform its future actions both internally and before the
federal courts to the court’s interpretation of law—acquiescence—or whether it will continue to
apply its preferred interpretation in future actions—nonacquiescence. Nonacquiescence is
possible primarily, although not exclusively, in situations when a reviewing court overturns a
decision made by an agency through adjudication. Although the term nonacquiescence can apply
to situations in which an agency disregards a court order as it applies to a specific party before the
agency, this report focuses on situations in which an agency declines to adopt a court’s reasoning
as it applies to future actions and different parties before the agency.
From the agency’s perspective, nonacquiescence raises two related issues: First, what other courts
or agency adjudicators are bound to adopt the court’s legal determination in a future case or a
future proceeding before the agency (i.e., the precedential effect of the decision)? Second, what
entities are bound by the court’s order in the initial case challenging the agency action (i.e., the
scope of relief)? The precedential effect of a court’s decision and the scope of the relief it grants
are governed by a number of features of the federal system that make nonacquiescence an
available option for an agency. While there are significant constitutional questions about the
legality of agency nonacquiescence (at least in some circumstances), nonacquiescence is made
possible by a combination of features that either limit the precedential effect of a court’s ruling or
limit the scope of the court’s relief. These features include the federal government’s right to
relitigate legal issues decided against it,3 the geographic limitations of the federal courts of
appeals’ jurisdiction,4 and the kind of action taken by the agency.5

1 Congress can provide for judicial review of an agency’s actions by a statute that applies specifically to that agency,
see, e.g., 15 U.S.C. § 717r(d), or through the Administrative Procedure Act, which generally provides for judicial
review in the absence of an agency-specific statute. 5 U.S.C. § 704.
2 5 U.S.C. § 706(2); see, e.g., Camp v. Pitts, 411 U.S. 138, 143 (1973); Fed. Power Comm’n v. Transcon. Gas Pipe
Line Corp., 423 U.S. 326, 331 (1976).
3 See United States v. Mendoza, 464 U.S. 154, 156 (1984).
4 28 U.S.C. § 41.
5 5 U.S.C. § 551(5), (7) (defining both “rule making” and “adjudication”).
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A number of federal agencies have engaged in nonacquiescence of some kind since at least the
1940s. These agencies include the Social Security Administration,6 the Environmental Protection
Agency,7 the National Labor Relations Board,8 the Internal Revenue Service,9 the Food and Drug
Administration,10 and the Securities and Exchange Commission.11 Some federal agencies, such as
the Social Security Administration, have at times adopted broad nonacquiescence policies
essentially declaring that they would not necessarily conform future actions to the decisions of the
federal courts.12 Others, however, have adopted more selective nonacquiescence policies aimed at
addressing a single or small set of court decisions.13
While nearly all agree that an agency is bound by a court’s interpretation of law as it applies to
the parties to the case, there is significant debate about whether an agency must conform its future
actions to the legal interpretations of a reviewing court’s interpretation of law.14 The debate
centers on the effect of a decision from a federal court of appeals.15 Some argue that Article III of
the Constitution vests the entire federal judiciary (not just the Supreme Court) with the power to
render interpretations of federal law that are binding on all entities within a specific court’s
geographic jurisdiction.16 Others contend that agencies are part of a coordinate branch of
government vested with interpretive authority by Congress and accordingly, under certain
circumstances, are not bound to adopt the legal interpretations of a reviewing court in its future
actions.17 Rather, they have a duty to administer nationally uniform regulatory programs until the
court system has settled on a nationally uniform interpretation.18 Congress has yet to address
nonacquiescence in statute, but it is likely that Congress could limit or bar the practice were it to
find it desirable.

6 Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679,
694 (1989).
7 Brian Gumz, Administrative Nonacquiescence and EPA, 10 GEO. WASH. J. ENERGY & ENV’T L. 1, 6 (2019).
8 Estreicher & Revesz, supra note 6, at 706.
9 COMM’N ON THE REVISION OF THE FED. CT. APP. SYS., STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS
FOR CHANGE (1975), reprinted at 67 F.R.D. 195, 350–51 (1975) [hereinafter Hruska Commission].
10 Clarification of Orphan-Drug Exclusivity Following Catalyst Pharms., Inc. v. Becerra, 88 Fed. Reg. 4086 (Jan. 24,
2023).
11 Peter J. Rooney, Nonacquiescence by the Securities and Exchange Commission: Its Relevance to the
Nonacquiescence Debate, 140 U. PA. L. REV. 1111, 1121 (1992).
12 Estreicher & Revesz, supra note 6, at 694.
13 See, e.g., Gumz, supra note 7.
14 Compare Matthew Diller & Nancy Morawetz, Intracircuit Nonacquiescence and the Breakdown of the Rule of Law:
A Response to Estreicher and Revesz, 99 YALE L.J. 801 (1990), and Dan T. Coenen, The Constitutional Case Against
Intracircuit Nonacquiescence, 75 MINN. L. REV. 1339, 1443 (1991), with Estreicher & Revesz, supra note 6, at 753;
and Samuel Figler, Executive Agency Nonacquiescence to Judicial Opinions, 61 GEO. WASH. L. REV. 1664, 1689
(1993).
15 See, e.g., Estreicher & Revesz, supra note 6, at 723. Most agree that Supreme Court decisions are binding on the
agency, as the decision applies to the specific dispute before the Court and all future agency actions. District court
decisions have no binding effect on later decisions made by either another district court or an appellate court. See
Pierce v. Underwood, 487 U.S. 552, 558 (1988) (noting that questions of law are traditionally reviewable de novo).
16 See Coenen, supra note 14, at 1443.
17 Estreicher & Revesz, supra note 6, at 754.
18 Id.
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Defining Agency Nonacquiescence
In its most general form, agency nonacquiescence refers to when a federal agency declines to
follow a decision of a federal court interpreting a statute that the agency administers. There are,
however, several variations of nonacquiescence, some more controversial than others:
• Intercircuit nonacquiescence refers to the practice of an agency refusing to
follow the case law of one court of appeals in actions it takes that will be
reviewed by a different court of appeals.
• Intracircuit nonacquiescence refers to the practice of an agency refusing to
follow the case law of a court of appeals that will review the agency’s decision.
• Venue choice nonacquiescence refers to a situation in which judicial review may
be had in either a court that has rejected the agency’s position or a court that has
not.19
No matter the form, nonacquiescence raises fundamental questions about the separation of
powers: first between the judiciary and the executive branch and second between Congress and
the judiciary. Nonacquiescence raises the specter of the executive branch disregarding the legal
pronouncements of the federal courts and prompts questions about the judiciary’s role to
announce generally applicable legal rules both within and across the geographic boundaries of the
federal circuit courts of appeals.
Under certain circumstances, nonacquiescence can be a legally available but controversial option
for an agency. Nonacquiescence can be legally available when (1) the federal government is free
to relitigate a legal issue it lost in a prior case,20 (2) the region in which the agency is taking
action is not subject to the jurisdiction of the court that ruled against the agency,21 (3) the relief
granted by the federal courts to parties challenging the agency’s action is limited to the parties’
case,22 (4) the challenged agency action applies to a limited number of parties before the agency,23
and (5) there is more than one judicial venue in which to challenge the agency action.24 None of
these features taken individually or together authorizes any particular instance of agency

19 Nonacquiescence can also refer to a situation in which an agency refuses to follow a court order as that order applies
to the parties to the case in which the order was issued. The term nonacquiescence as it is used by administrative law
scholars and courts generally does not refer to this kind of agency action. See Nicholas Parillo, The Endgame of
Administrative Law and the Judicial Contempt Power, 131 HARV. L. REV. 685, 691 n.15 (2018). As such, this report
does not address this form of nonacquiescence. Directly disobeying a court order would likely expose the agency to
contempt proceedings and, more fundamentally, could undermine core principles that establish the authority of the
judiciary to resolve particular cases in a final and binding way. Id. at 691. As a result, this form of nonacquiescence is
extremely rare and has few, if any, supporters. Id. at 696 (identifying about 80 instances of a court holding an agency in
contempt since 1945). In the field of constitutional law, however, this kind of nonacquiescence has received more
sustained attention and support in some corners of legal academia. See, e.g., Larry D. Kramer, Popular
Constitutionalism circa 2004, 92 CAL. L. REV. 959 (2004); Nikolas Bowie, The Contemporary Debate over Supreme
Court Reform: Origins and Perspectives, Written Statement to the Presidential Comm’n on the Sup. Ct. of the United
States (June 30, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/06/Bowie-SCOTUS-Testimony.pdf;
Mark Tushnet, An Open Letter to the Biden Administration on Popular Constitutionalism, BALKANIZATION (Jul. 19,
2023), https://balkin.blogspot.com/2023/07/an-open-letter-to-biden-administration.html.
20 See infra “The Federal Government’s Right to Relitigate.”
21 See infra “Percolation of Legal Issues Across the Federal Courts.”
22 See infra “The Effect of Injunctions on Nonacquiescence.”
23 See infra “Agency Action Under the APA.”
24 See infra “Statutory Venue Provisions.”
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nonacquiescence, but taken together they create the structural underpinnings making
nonacquiescence possible. This report addresses each of these elements in turn.
The Federal Government’s Right to Relitigate
Collateral estoppel, also known as issue preclusion, is a judicially developed doctrine that bars a
party from relitigating in a subsequent case (in any court) any issue that was actually decided and
material to the outcome of a prior case.25 Collateral estoppel creates finality in court decisions in
civil cases, ensuring that parties are not required to relitigate an issue that was already decided in
a prior case.26 It also serves to conserve judicial resources from being consumed by parties
litigating the same issue more than once and prevents inconsistent decisions across multiple
courts.27 Collateral estoppel can apply not only when both parties are the same but also when only
the defendant is the same but the plaintiff is a different party than in the first case.28 This latter
type of collateral estoppel is known as nonmutual offensive collateral estoppel.29 In these types of
cases, although the plaintiff was not a party to the original case, the defendant was.30 As such, a
plaintiff may assert that the defendant is bound by the decision of a prior case on an issue that
arises in a subsequent case.31 Under this form of collateral estoppel, defendants are precluded
from relitigating issues they lost in prior cases, even in situations where the plaintiff suing the
defendant is different.32
The federal government is not bound by nonmutual offensive collateral estoppel, allowing the
federal government to relitigate an issue it lost in a prior case.33 In United States v. Mendoza, the
Supreme Court held that nonmutual offensive collateral estoppel does not apply to the federal
government when the government is a defendant in a case and wishes to relitigate an issue that it
lost in a prior case.34 Mendoza, a Filipino national whose petition for naturalization was denied,
argued that the federal government violated his Fifth Amendment Due Process rights by denying
his petition.35 Some years earlier, a group of sixty-eight Filipino nationals sued the federal
government for denying their petitions for naturalization, asserting the same constitutional

25 18 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 4416 (3d ed. 2023).
26 Id.; Montana v. United States, 440 U.S. 147, 153 (1979).
27 Montana, 440 U.S. at 153; United States v. Mendoza, 464 U.S. 154, 158 (1984).
28 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979).
29 Mendoza, 464 U.S. at 158; WRIGHT & MILLER, supra note 25, § 4464.
30 Mendoza, 464 U.S. at 158; WRIGHT & MILLER, supra note 25, § 4464.
31 Mendoza, 464 U.S. at 158; WRIGHT & MILLER, supra note 25, § 4464.
32 Mendoza, 464 U.S. at 158; WRIGHT & MILLER, supra note 25, § 4464.
33 Mendoza, 464 U.S. at 156. The federal government, like private parties, is bound by claim preclusion (sometimes
also referred to as res judicata). Id. at 162. Claim preclusion prevents parties to a lawsuit from relitigating the same
cause of action that a court already decided in a final judgment. Montana v. United States, 440 U.S. 147, 153 (1979). A
cause of action is broader than an issue and includes for example, a claim that a federal agency acted in violation of the
constitution by issuing a particular regulation. See Allen v. McCurry, 449 U.S. 90, 94 (1980) (“Under res judicata, a
final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could
have been raised in that action.”). Claim preclusion, unlike collateral estoppel, however, applies only to the same
parties to the case that decided the claim. Id. That is, claim preclusion requires mutuality. Claim preclusion thus binds
the federal government to adhering to a final judgment as it applies to the parties to the case in which the judgment was
issued. In cases in which the government loses, it has two choices to attempt to change the outcome: appeal to the
relevant appellate court and seek to have the lower court’s ruling overturned or seek to have the court that issued the
judgment modify or set aside the judgment in accordance with Rule 60 of the Federal Rules of Civil Procedure. See
FED. R. CIV. P. 60(b).
34 Mendoza, 464 U.S. at 156.
35 Id. at 156–57.
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challenges.36 The district court ruled in favor of the plaintiffs, finding that their Fifth Amendment
rights were violated.37 The federal government did not appeal the case or seek to have the
judgment modified or set aside.38 When Mendoza brought suit against the federal government for
denying his naturalization petition on the same grounds as those that were brought by the sixty-
eight Filipino nationals in the earlier case, Mendoza argued that the United States could not
relitigate whether denying his naturalization petition violated the Fifth Amendment.39 The district
court and the court of appeals agreed and held that the United States was bound by the earlier
decision.40 The Supreme Court reversed, holding that the United States is not subject to collateral
estoppel.41
The Court explained that the United States is unique among civil defendants due to the number of
cases brought against it. For example, some cases addressing the legality of government conduct
can be brought only against the federal government.42 The United States, the Court conveyed, is
therefore more likely than any other civil defendant to be engaged in litigation against different
parties that nonetheless raise the same issues.43 Were the United States bound by collateral
estoppel from relitigating those issues, the Court continued, this would “substantially thwart” the
development of important legal issues at the first decision.44 That would deprive the Supreme
Court of the benefit of the dialogue among multiple federal courts exploring the most difficult
legal questions.45 That process is sometimes called percolation.46 The Court has confirmed on
multiple occasions its view that this dialogue among multiple courts helps develop and sharpen
the most important issues, which in turn can signal to the Supreme Court that an issue is of such
importance that it should hear an appeal.47 Ultimately, without the ability to relitigate issues the
government lost in prior cases, agency nonacquiescence would be all but impossible. Because
collateral estoppel does not bar the federal government from relitigating an issue it lost in a prior

36 Id. at 157 (citing In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (N.D. Cal. 1975)).
37 Id.
38 Id.
39 Id.
40 Id. at 157–58.
41 Id. at 156.
42 Id. at 159–60.
43 Id.
44 Id. at 160.
45 Id. The appellate court held that the United States was barred from relitigating the issue of whether the denial of the
petition for naturalization violated Mendoza’s Fifth Amendment rights because the United States could have appealed
the adverse decision in In re Naturalization of 68 Filipino War Veterans but chose not to. Id. at 161. In rejecting this
point, the Court identified another rationale for not applying collateral estoppel to the United States. Id. The Court
explained that the decision to bring an appeal is ordinarily a straightforward matter for a private litigant. If the chances
of winning are high, an appeal is usually taken. Id. For the United States, however, the decision is freighted with a
number of policy considerations not present for the private litigant. Id. The government must consider, among other
things, how to use limited resources in the tens of thousands of cases filed each year in which it is a defendant and the
“crowded dockets of the courts” before it decides to appeal a decision. Id. Further, different Administrations will take
differing views of which court determinations are objectionable as a matter of policy and thus good candidates to
appeal. Were collateral estoppel to apply to the federal government, it would deprive the government of these policy
considerations and force the government to appeal every adverse decision. Id. at 162.
46 See, e.g., Florida v. Dep’t of Health and Hum. Servs, 19 F.4th 1271, 1285–86 (11th Cir. 2021).
47 Mendoza, 464 U.S. at 160; Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The Supreme Court’s docket is largely
discretionary, meaning the justices can choose which of the approximately 8,000 petitions filed every year to hear. 28
U.S.C. § 1254; https://www.supremecourt.gov/about/faq_general.aspx. One factor that the justices consider when
deciding to hear an appeal is whether two federal circuit courts of appeal disagree on an important question of federal
law. SUP. CT. R. 10(a).
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case, an agency that lost on an issue before the federal courts can relitigate that same issue against
a different plaintiff in a future case.
Percolation of Legal Issues Across the Federal
Courts
The process of percolation points to other features of the federal court system that permit agency
nonacquiescence: the geographic division of the lower federal courts of appeals and the absence
of a requirement that courts in one circuit follow precedents from other circuits.48 In other words,
the federal court system does not require intercircuit stare decisis. Stare decisis refers to “[t]he
doctrine of precedent, under which a court must follow earlier judicial decisions when the same
points arise again in litigation.”49 As an initial matter, most agree that a decision of the Supreme
Court interpreting federal law is binding precedent for not just the lower courts but also federal
agencies.50 Two elements of the Court define its role as the final arbiter of federal law. First, the
Supreme Court has national jurisdiction, meaning its decisions are binding everywhere in the
nation.51 Second, through a combination of two Supreme Court cases, the Court has determined
that it is the final arbiter of federal law. In the seminal 1803 case Marbury v. Madison, the Court
explained that “it is emphatically the province and duty of the judicial department to say what the
law is.”52 Read narrowly, however, Marbury establishes that a court’s interpretation of federal law
is binding as applied to the parties to the case, leaving room for other branches to continue to
interpret federal law in future actions.53 It was not until the 1958 case of Cooper v. Aaron that the
Supreme Court, relying on Marbury, explicitly held that it was the supreme and final arbiter of
questions of federal law.54 The federal courts of appeals, however, do not enjoy the same position
as the Supreme Court. The geographic limitations of the lower appeals courts’ jurisdiction and
their intermediate position underneath the Supreme Court limits (although does not extinguish)

48 Although different circuits of the federal courts of appeals are free to adopt or reject the decisions of their sister
circuits, decisions of the Supreme Court are binding on all lower courts nationwide. See, e.g., Hart v. Massanari, 266
F.3d 1155, 1170 (9th Cir. 2001); Winslow v. FERC, 587 F.3d 1133, 1135 (D.C. Cir, 2009); 18 JAMES W. MOORE,
MOORE'S FEDERAL PRACTICE § 134.01[1], at 134-9 (3d ed. 2018); Evan H. Caminker, Why Must Inferior Courts Obey
Superior Court Precedents?, 46 STAN. L. REV. 817, 824 (1994).
49 Stare Decisis, BLACK’S LAW DICTIONARY (2019).
50 See, e.g., Estreicher & Revesz, supra note 6, at 725.
51 U.S. CONST. art. III; Cong. Rsch. Serv., Overview of Establishment of Article III Courts, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-8-1/ALDE_00013557/ (last visited Dec. 18, 2023).
52 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also U.S. CONST. art. III, § 1.
53 See, e.g., Muskrat v. United States, 219 U.S. 346, 361 (1911); Herbert Wechsler, The Courts and the Constitution, 65
COLUM. L. REV. 1001, 1008 (1965) (“Under Marbury, the Court decides a case; it does not pass a statute calling for
obedience by all within the purview of the rule that is declared.”). Justice Samuel Miller characterized the Court’s
authority as “the power ... to decide and pronounce a judgment and carry it into effect between persons and parties who
bring a case before it for decision.” JUSTICE SAMUEL MILLER, ON THE CONSTITUTION 314 (1891). In discussing the
Supreme Court case Dred Scott v. Sanford, 60 U.S. 393 (1857), Abraham Lincoln echoed these points in his first
inaugural address, proclaiming that “the candid citizen must confess that if the policy of the Government upon vital
questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are
made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers,
having to that extent practically resigned their Government into the hands of that eminent tribunal.” Abraham Lincoln,
First Inaugural Address (Mar. 4, 1861), https://tile.loc.gov/storage-services/service/mss/mal/077/0773800/0773800.pdf.
54 358 U.S. 1, 18 (1958). The Cooper case involved a suit against state governments for refusing to implement the
Court’s decision in Brown v. Board of Education holding racial segregation in schools to violate the 14th Amendment.
Id. In response to the states’ argument that they were not bound by decisions of the Supreme Court, the Court held that
Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the
Constitution.” Id.
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their ability to make nationally binding determinations of federal law. Nonacquiescence is thus a
possible response to decisions from the lower federal courts but likely not to decisions of the
Supreme Court.
Congress divided the federal courts of appeals into thirteen different circuits, twelve of which
have jurisdiction over particular regions of the United States. (The Third Circuit’s jurisdiction
extends to Pennsylvania, New Jersey, and Delaware, for example.55) The Court of Appeals for the
District of Columbia Circuit [D.C. Circuit] bears special mention. Although it is a regional circuit
court like the other eleven circuits, because the District of Columbia is the seat of the federal
government, decisions of the D.C. Circuit often bind an agency nationwide. Various statutes also
limit appeals from particular agencies to the D.C. Circuit only.56 In those cases, the D.C. Circuit
effectively has nationwide jurisdiction.
Figure 1. Geographic Boundaries of the Federal Courts

Source: https://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf.
Notes: District court boundaries are delineated by gray lines within state boundaries.

55 28 U.S.C. § 41. The remaining circuit, the Federal Circuit, has nationwide jurisdiction but can hear appeals on only a
limited number of subjects, such as appeals of patent determinations. Id.; 28 U.S.C. § 1295(a). Due to its nationwide
jurisdiction, the Federal Circuit is a special case for the purposes of agency nonacquiescence and should be treated
similarly to the Supreme Court in how its decisions affect nonacquiescence. Estreicher & Revesz, supra note 6, at 727.
56 See, e.g., 42 U.S.C. § 7607(b).
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A result of the structure of the federal court system is that when one circuit resolves a question of
law, the other circuits are free to adopt or reject that determination.57 The Judiciary Act of 1891
(commonly referred to as the “Evarts Act”) created the modern federal circuit court system.58
Section 6 of the Evarts Act provides that “the judgments or decrees of the circuit courts of appeals
shall be final in all cases,” but it does not specifically address how circuit courts should treat the
decisions of their sister circuits.59 Whether intended by Congress or not, early decisions of the
newly created circuit courts of appeals started to assert a duty of “independent judgment in cases
of first impression” in a particular circuit.60 What ultimately arose is a system of intercircuit
dialogue where multiple circuit courts may have the opportunity to analyze the same legal issue,
learning from the decisions of other circuits.61 As noted above, the Supreme Court has explained
that this process of percolation helps improve the quality of legal decisionmaking at both the
Supreme Court and the courts of appeals and helps signal to the Supreme Court which legal
issues may warrant its attention.62
Although a circuit is not bound by the decisions of its sister circuits, earlier decisions of a court of
appeals are generally binding precedent in future cases on the same question of law within a
circuit.63 This feature of the federal courts is known as the law of the circuit doctrine.64 By statute,
circuit courts usually hear appeals in three-judge panels.65 To prevent the same panel from being
overwhelmed by hearing every appeal, Congress created multiple judgeships for each circuit
court.66 The First Circuit, for example—the smallest circuit—has six judgeships, while the Ninth
Circuit—the largest circuit—has 29 judgeships.67 Decisions of these panels are binding on the

57 Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488–89 (1900) (decision of another circuit “persuades; but it
does not command.).
58 Judiciary Act of 1891, ch. 517, 26 Stat. 826 (1891). Chapter 3 of Title 28 of the U.S. Code contains the current
statutes that structure the circuit courts.
59 26 Stat. 828.
60 Haberle Crystal Springs Brewing Co. v. Clarke, 30 F.2d 219, 222 (2d Cir. 1929), rev’d on other grounds, 280 U.S.
384 (1930).
61 Getzel Berger, Nationwide Injunctions Against the Federal Government: A Structural Approach, 92 N.Y.U. L. REV.
1068, 1095 (2017).
62 United States v. Mendoza, 464 U.S. 154, 160 (1984); Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Berger, supra
note 61, at 1095. The notion of percolation gives the pronouncements of the courts of appeals a sense of being
provisional until ratified (or rejected) by the Supreme Court. This may be true from the perspective of the Supreme
Court, but because the Supreme Court hears only about seventy-five cases a year, the courts of appeals are functionally
the last stop for the vast majority of cases in the federal system. It is also important to note that even Supreme Court
cases are in some ways provisional. The Court can and does overrule its own precedent, most famously in Brown v.
Board of Education. 347 U.S. 483 (1954) (overruling the “separate but equal” doctrine announced in Plessy v.
Ferguson, 163 U.S. 537 (1896)). The Court in Cooper, which stands nominally for the supremacy and finality of
Supreme Court decisions, nods to this possibility, albeit in a roundabout way, by noting that although three new
members joined the Court since it decided Brown, all three new justices unanimously supported the Brown decision.
Cooper, 358 U.S. at 19.
63 Jeffrey O. Cooper & Douglas A. Berman, Passive Virtues and Casual Vices in the Federal Courts of Appeals, 66
BROOK. L. REV. 685, 721 n.91 (2000) (noting each circuit has adopted this rule). A similar system is at work in the
federal district courts. As with the circuit courts, no district court is bound by the decision of a different district court.
Threadgill v. Armstrong World Indus., 928 F.2d 1366, 1371 (3d Cir. 1991) (collecting cases). District courts are,
however, bound to follow the decisions of the relevant circuit court and Supreme Court. See, e.g., 18 MOORE’S
FEDERAL PRACTICE – CIVIL § 134.02 (2023).
64 Law of the Circuit Doctrine, BLACK’S LAW DICTIONARY (2019); Martha Dragich, Uniformity, Inferiority, and the
Law of the Circuit Doctrine, 56 LOY. L. REV. 535, 538 (2010).
65 28 U.S.C. § 46(c).
66 Id. § 44.
67 Id.
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decisions of future three-judge panels on the same question of law.68 A circuit court can overturn
its own precedent, however, through a special circuit court procedure known as a rehearing en
banc.69 A rehearing en banc is a hearing before a larger panel of appellate judges. In smaller
circuits, all active judges on the court of appeals participate in en banc proceedings, while in
larger circuits a subset of active judges may participate.70
For agency nonacquiescence, the absence of intercircuit stare decisis combined with the
inapplicability of collateral estoppel to the federal government means that if one circuit rules that
an agency’s interpretation of a statute is wrong, the agency might have the option to continue to
apply its preferred interpretation in other circuits that either have not ruled on the issue or have
approved the agency’s interpretation. In other words, the agency may be able to engage in
intercircuit nonacquiescence because the circuit court’s decision overturning the agency’s
statutory interpretation is binding precedent only in that circuit’s geographic region.71
Due to the law of the circuit doctrine, however, it is controversial for an agency to engage in
nonacquiescence within the circuit that has ruled against it (intracircuit nonacquiescence). The
government is not bound by collateral estoppel to accept a past decision, but the court itself is
bound by its own past decisions in most circumstances. Intracircuit nonacquiescence therefore
requires the agency to rely on the limited mechanisms that allow a circuit to revisit a past
decision. Whether this practice is legally permissible has generated a robust debate among
scholars. Some argue that intracircuit nonacquiescence violates the separation of powers because
an agency encroaches on the judiciary’s authority to “say what the law is” when it decides for
itself not to follow the precedent of the circuit in which it takes action.72 Others argue that
agencies are not bound by precedent the way district courts in a circuit are bound by circuit
precedent.73 Rather, agencies are entrusted by Congress to develop nationally uniform policies.74
While agencies are bound to follow circuit court decisions with respect to the parties to a specific
case, these scholars argue, unless subject to an injunction requiring it, internal agency practices
may not need to conform to circuit court decisions, and the agency should be free to relitigate the
issue it lost until the legal system settles on a nationally uniform rule.75 Despite the lingering

68 See, e.g., Dantzler v. IRS, 183 F.3d 1247, 1250 (11th Cir. 1999).
69 Cooper & Berman, supra note 63, at 721 n.91 (noting each circuit has adopted this rule); FED. R. APP. P. 35
(providing for en banc procedure). There is some variation across the circuits in how they implement the law of the
circuit doctrine. Henry J. Dickman, Conflicts of Precedent, 106 VA. L. REV. 1345, 1355 (2020). While all circuits
provide for en banc review to revisit circuit precedent, some circuits have adopted additional mechanisms for
overturning circuit precedent. The First Circuit, for example, permits a panel to overrule the decision of a prior panel in
the “exceedingly infrequent situation” where “non-binding but compelling caselaw convinces us to abandon it.” AER
Advisors Inc. v. Fidelity Brokerage Servs., LLC, 921 F.3d 282, 293 (1st Cir. 2019). The D.C. Circuit permits a panel to
overrule a prior panel decision without a full en banc hearing if the panel circulates a draft of the opinion to all active
judges and they unanimously agree to overrule circuit precedent. U.S. CT. OF APP. FOR THE D.C. CIRCUIT, POLICY
STATEMENT ON EN BANC ENDORSEMENT OF PANEL DECISIONS 1 (1996), https://www.cadc.uscourts.gov/
internet/home.nsf/650f3eec0dfb990fca25692100069854/a4f637b0b7081fa0852573d8005fbc67/$FILE/IRONS.PDF.
70 9TH CIR. R. 35.3 (en banc panel consists of the chief judge and 10 additional randomly selected judges); 2D CIR. R.
35.1 (en banc panel consists of all active judges).
71 There are instances where intercircuit nonacquiescence might not be possible due to the kind of relief granted by a
court when it rules against an agency or because of the type of agency action subject to judicial review. These two
instances are discussed below.
72 See, e.g., Diller & Morawetz, supra note 14, at 822; Coenen, supra note 14, at 1443.
73 See, e.g., Estreicher & Revesz, supra note 6, at 723–24; Samuel Estreicher & Richard L. Revesz, The Uneasy Case
against Intracircuit Nonacquiescence: A Reply, 99 YALE L.J. 831, 832 (1990) [herinafter Estreicher & Revesz Reply].
74 Estreicher & Revesz Reply, supra note 73, at 840. “In the administrative state ushered in by the New Deal, agencies
have been delegated authority by Congress to develop coherent, nationally uniform policies under their statutes.” Id.
75 Estreicher & Revesz, supra note 6, at 754.
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questions of its legality, agencies have engaged in this kind of nonacquiescence from time to
time, citing the need for uniform national policy.76
Statutory Venue Provisions
The term venue refers to the court or courts in which it is appropriate for a lawsuit to proceed.77
The question of which court will hear an appeal from an agency also bears on whether an agency
decides to engage in nonacquiescence. As discussed in more detail below, statutory venue
provisions often direct challenges to agency actions to a particular court or courts and thus may
permit an agency to predict which circuit would hear challenges to its actions. If a venue
provision directs an appeal from an agency to a circuit that has already ruled against the agency,
the agency may choose not to engage in intracircuit nonacquiescence because the agency’s
chances of prevailing are slim (although, as will be discussed below, some agencies knowingly
engage in intracircuit nonacquiescence). Conversely, if the appeal will be heard in a court that has
not yet ruled on the issue, the agency may wish to continue to press its preferred legal
interpretation even if another circuit has ruled against the agency.
Whether the appeal will be in a different circuit is determined in part by venue, which is defined
by statute. Outside of the original jurisdiction provisions in Article III of the Constitution, which
apply only to the Supreme Court,78 Congress has authority to decide which courts will hear what
cases.79 Unless a more specific statute applies, the general venue statute provides in relevant part
that a plaintiff can bring a case against an agency in a judicial district (i.e., district court) where a
defendant resides, where a substantial part of the events giving rise to the suit took place, or
where the plaintiff resides.80 For a challenge to an agency action, the general venue provision
would permit suit either where the agency is headquartered (possibly Washington, D.C.), the
judicial district that encompasses the office that took the action (if different from the
headquarters), or the judicial district where the plaintiff lives.
Congress has enacted numerous agency-specific statutes that include venue provisions for
challenges to particular agencies’ actions. For example, the Administrative Orders Review Act
(commonly known as the Hobbs Act) directs challenges to orders from certain agencies—such as
the Federal Communications Commission—to the circuit court of appeals in which the petitioner
resides or has its principal office or to the D.C. Circuit.81 Other examples include the Clayton Act,
which permits those subject to cease-and-desist orders issued by certain agencies to challenge
those orders in the circuit where the alleged violation occurred or where the target of the order
resides or carries on business.82 Unlike the general venue provision, the Hobbs Act and the
Clayton Act permit appeals from certain agencies to go directly to the courts of appeals,
bypassing the district courts. Whether an appeal will go to a district court or an appellate court,
however, is immaterial to the nonacquiescence analysis. Both district courts and appellate courts
are bound by prior decisions of the court of appeals in the circuit to which a venue provision

76 See discussion of the Social Security Administration’s nonacquiescence policy infra pp. 14–16.
77 Venue, BLACK’S LAW DICTIONARY (2019).
78 Cong. Rsch. Serv., Supreme Court Original Jurisdiction, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C2-2/ALDE_00001220/ (last visited Dec. 18, 2023).
79 14D CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3802 (4th ed. 2023).
80 28 U.S.C. § 1391(e). The Administrative Procedure Act (APA) does not specify venue. Rather, it permits suits
against an agency where venue is otherwise proper as determined by an agency-specific statute or the general venue
provisions in Section 1391. See 5 U.S.C. § 703.
81 28 U.S.C. § 2343.
82 15 U.S.C. § 21(c).
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directs the appeal. Finally, some statutes vest a single court with jurisdiction over challenges to
certain agency actions, essentially providing that court with nationwide jurisdiction in those
appeals.83 Statutes that limit appeals to a single court prevent both intercircuit dialogue and also
intercircuit nonacquiescence. Statutes limiting venue to a single court may also limit the
frequency of nonacquiescence, as every instance of nonacquiescence would result in the more
controversial intracircuit nonacquiescence. Further, a single court may be able to engage in more
effective oversight of an agency’s nonacquiescence policies (to the extent it has them) than would
be possible if an appeal could be heard in multiple courts.
Narrow venue provisions, such as those that direct challenges to a single court, permit agencies to
predict which court will hear an appeal and thus permit them to choose whether to engage in
inter- or intracircuit nonacquiescence. Venue provisions that permit challenges to be brought in
multiple courts, however, limit an agency’s ability to predict what court might hear an appeal.
When an agency takes an action contrary to a prior circuit court ruling but, due to a broad venue
provision, is unsure whether a challenge to the action would be heard by that court, this is
sometimes referred to as venue choice nonacquiescence.84 An agency in this situation may hope
that the case will be heard in a circuit that has not yet weighed in on the question or has ruled in
its favor. Because an agency cannot predict which court will hear an appeal at the time it acts, the
agency’s action may be reviewed in a court that had previously ruled against the agency on that
issue. In that case, although the agency may intend to engage only in intercircuit
nonacquiescence, its action would look to the reviewing court like the far more controversial
intracircuit nonacquiescence.85 Further, broad venue provisions may mean that some of the courts
where the agency action could be challenged have ruled against the agency, while others have
ruled in its favor.86 Under this scenario, no matter what action the agency takes, it will engage in
nonacquiescence. Again, depending on where a challenge is brought, it may appear to the court
that the agency was engaging in intracircuit nonacquiescence when it was in fact the agency’s
intent to continue to administer a nationally uniform policy in the face of conflicting judicial
decisions.
Agency Actions and Judicial Review Under the
Administrative Procedure Act (APA)
The features of the federal system discussed up until this point have affected the precedential
value of a reviewing court’s decision—whether the reviewing court has identified a legal rule that
applies to the agency’s actions. The following section discusses the interaction between the type
of agency action at issue and the remedy applied by the reviewing court—whether the reviewing
court in a particular case has issued an order that the agency must follow in its future decisions.
The type of agency action and the remedy applied by the reviewing court both bear heavily on
whether the agency has the option to engage in nonacquiescence in a future action. Rather than
limiting the precedential value of the reviewing court’s legal determination in future proceedings,
the type of agency action and the remedy imposed by the court often determines what entities are
bound by an order from the first court to evaluate the agency’s action.

83 See, e.g., 42 U.S.C. § 7607(b) (requiring all appeals of national Clean Air Act regulations to be filed in the D.C.
Circuit).
84 Gumz, supra note 7, at 6.
85 Estreicher & Revesz, supra note 6, at 742.
86 See id. at 710.
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Agency Action Under the APA
The APA classifies agency action in several ways, two of which are relevant to this report:
rulemaking and adjudication. First, the APA defines rulemaking as the process by which the
agency formulates, amends, or repeals a rule.87 A rule under the APA is “the whole or a part of an
agency statement of general or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy.”88 An adjudication, in contrast, is the agency process for
formulating an order—that is, “the whole or a part of a final disposition . . . of an agency in a
matter other than rule making.”89 A common way to differentiate between rules and orders is that
rules regulate future conduct, while orders remedy past conduct.90 Another way to differentiate
between the two that is more relevant to the nonacquiescence discussion is that orders apply to
the parties to the adjudication, while rules usually apply generally.91 As will be discussed below,
the difference between the particular applicability of orders and generally applicable rules plays
an important role in an agency’s ability to engage in nonacquiescence.92
Judicial Review Under the APA
The APA provides for judicial review of final agency action.93 Section 706 of the APA permits a
reviewing court to “hold unlawful and set aside” agency action if it violates one of six standards
of review.94 The most commonly invoked standard is the “arbitrary and capricious” standard of
review, which permits a court to set aside agency action if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”95
The type of agency action a reviewing court sets aside (i.e., an order or generally applicable rule)
determines whether an agency will have the option to engage in nonacquiescence in future
actions. When a court sets aside a rule, the rule no longer has legal effect.96 The agency cannot

87 5 U.S.C. § 551.
88 Id. § 551(4).
89 Id. § 551(6) (“order”), (7) (“adjudication).
90 CRS Report R46930, Informal Administrative Adjudication: An Overview, by Ben Harrington and Daniel J. Sheffner
(2021). Congressional clients may contact Benjamin Barczewski for additional information.
91 Id. This latter difference is not entirely accurate, because the APA contemplates rules of “particular applicability.” 5
U.S.C. § 551(4). As a practical matter, rules of particular applicability, because of their limited scope, function
similarly to adjudications in the nonacquiescence context.
92 Unless required by statute, agencies can choose to regulate through generally applicable regulations or through case-
by-case adjudications. See NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974); SEC v. Chenery Corp., 332 U.S. 194
(1947). The modern trend in federal agencies has been to move away from regulation through adjudication and toward
a greater use of generally applicable regulations created through the rulemaking process. M. Elizabeth Magill, Agency
Choice of Policymaking Form, 71 U. CHI. L. REV. 1383, 1384–85 (2004).
93 See CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole (2016).
94 5 U.S.C. § 706(2).
95 Id. § 706(2)(A).
96 See, e.g., Camp v. Pitts, 411 U.S. 138, 143 (1973); Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 423 U.S.
326, 331 (1976); Mila Sohoni, The Power to Vacate a Rule, 88 GEO. WASH. L. REV. 1121, 1138 (2020) (collecting
examples in which the Supreme Court uses the term set aside to mean the invalidation of a regulation); cf. Allied-
Signal, Inc. v. U.S. Nuclear Reg. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993) (discussing the disruption that
would occur in the absence of the regulation if the court vacated it). The proposition that when a court sets aside
(vacates) a rule as unlawful, the agency cannot rely on that rule in any future action as applied to any party has recently
been subject to intense debate. Several scholars have questioned this remedy, sometimes called universal vacatur,
arguing that a court’s power to set aside a rule generally extends only to the parties to the litigation challenging the rule.
See, e.g., Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417, 418
(continued...)
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then rely on that rule for subsequent actions, such as enforcement actions, against any party
nationwide.97 If the agency were to carry on as if the rule were still valid, it would be directly
disobeying a court order and could be subject to contempt sanctions.98
When a court sets aside an agency order, just as with a rule, the order no longer has legal effect.
The difference is that the order touches only the parties to the agency adjudication. The effect of a
court setting aside an order is accordingly much narrower than when a court sets aside a rule.
Further, although agency adjudications may implicate generally applicable rules or policy, each
adjudication is a discrete action, and it is that discrete action that the court sets aside—not the
generally applicable rule. The upshot is that unless the court issues an injunction, an agency may
be able to continue to apply its preferred policy in future adjudications.
The Effect of Injunctions on Nonacquiescence
Another factor that affects whether an agency can engage in nonacquiescence is whether a
reviewing court issues an injunction and, if so, the scope of that injunction. An injunction is a
court order to either take an action or to refrain from taking an action.99 A court can issue an
injunction in addition to deciding the legal and factual merits of a case.100 For instance, if a court
finds that a company violated a pollution control statute, it might order the company to stop
discharging the pollution into the environment or to clean up the pollution that it had discharged.
In addition to ordering a party to do or not do something, an injunction can vary in scope. For
instance, a court could order a defendant from acting against the plaintiff only, or it could bind the
defendant’s future actions as they apply to any person.101 An injunction can accordingly help
clarify which parties are bound by a court’s decision. Injunctions also permit a court to more
closely manage a party’s compliance with its decision. If an agency refuses to act in accordance
with a precedential legal rule, it is at risk of losing its next case in which that rule applies. If an
agency refuses to obey a court-ordered injunction, in contrast, it is at risk of immediate contempt
proceedings before the same court.
Returning to the nonacquiescence context, the issuance of an injunction may affect the ability of
an agency to engage in nonacquiescence.102 If a court sets aside an agency’s adjudication order,
the effect of the court’s decision is to nullify the legal effect of the order, which applies only to
the parties to that order. This limited application arguably leaves the agency free to continue to
apply its preferred legal interpretation in future actions outside of the geographic jurisdiction of

(2017); Howard M. Wasserman, “Nationwide” Injunctions are Really “Universal” Injunctions and They are Never
Appropriate, 22 LEWIS & CLARK L. REV. 335, 336–37 (2018). The U.S. Department of Justice has adopted a similar
position in a policy statement and in litigation. See Memorandum from the Off. of the Att'y Gen. to the Heads of Civ.
Litigating Components U.S. Attorneys, Litigation Guidelines for Cases Presenting the Possibility of Nationwide
Injunctions 7–8 (Sept. 13, 2018), https://www.justice.gov/opa/press-release/file/1093881/download; Defs’ Mot. for
Partial Stay of J. Pending Appeal at 6, Braidwood Mgmt. Inc. v. Becerra, No. 4:20-cv-00283-O, 2023 WL 2703229
(N.D. Tex. Mar. 30, 2023). The debate surrounding the authority granted to courts by the APA’s set-aside provision is
taking place in light of the debate swirling around recent instances of courts issuing what have become known as
nationwide injunctions. For more information on the debate surrounding nationwide injunctions see CRS Report
R46902, Nationwide Injunctions: Law, History, and Proposals for Reform, by Joanna R. Lampe (2021), and CRS Legal
Sidebar LSB10664, Nationwide Injunctions: Recent Legal Developments, by Joanna R. Lampe (2021).
97 Sohoni, supra note 96, at 1180.
98 Parillo, supra note 19.
99 WRIGHT & MILLER, supra note 25, § 2941; Lampe, Nationwide Injunctions, supra note 96. (defining various types of
injunctions).
100 WRIGHT & MILLER, supra note 25, § 2942.
101 Lampe, Nationwide Injunctions, supra note 96.
102 Sohoni, supra note 96, at 1179–80.
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the issuing court, or, put another way, to engage in intercircuit nonacquiescence. An agency could
still engage in intracircuit nonacquiescence in this scenario but would likely be unsuccessful in
any future court challenge in the same circuit, because precedent would bind a future court to
adopt the earlier court’s legal determination. An injunction, however, could bind the agency even
in future cases that involve other parties and thereby limit the agency’s ability to apply its
preferred legal interpretation in future actions.103
For example, a court could enjoin an agency from enforcing an order against the parties to the
underlying agency adjudication. This limited injunction would still leave open the possibility that
the agency could engage in inter- or intracircuit nonacquiescence in future actions. A court could
also issue an injunction that bars the agency from issuing an order based on the same legal
grounds to anyone within the geographic jurisdiction of the court or, more controversially, to
anyone nationwide. In the case of an injunction that extends to the geographic jurisdiction of the
issuing court, the agency would be unable to engage in intracircuit nonacquiescence without
violating a court order and subjecting itself to contempt sanction, but it could still engage in
intercircuit nonacquiescence. Injunctions that prohibit an agency from applying certain rules or
policies in any case thus limit the agency’s ability to engage in nonacquiescence. In the case of a
nationwide injunction, the agency could not engage in nonacquiescence in any jurisdiction. Were
it to do so, the agency could be subject to contempt sanctions in the court that issued the
injunction.
Examples of Agency Nonacquiescence
Social Security Administration: Intracircuit Nonacquiescence
Perhaps the most notable example of agency nonacquiescence occurred between the 1960s and
1980s at the Social Security Administration (SSA) in its disability benefits program.104 The SSA
administers a disability benefits program pursuant to the Social Security Act of 1935.105 The
Social Security Act permits a claimant to appeal a benefits determination to federal district
court.106 The Act’s venue provision provides for district court review in the district “in which the
plaintiff resides or has his principal place of business.”107
Until 1985, the SSA maintained a public policy that directed administrative law judges not to
consider lower federal court decisions (trial or appellate) that were inconsistent with the SSA’s
interpretation of federal law as binding on future cases.108 The SSA supported its position by
arguing that “[t]he federal courts do not run SSA programs, and [SSA adjudicators] are
responsible for applying the [SSA’s] policies and guidelines regardless of court decisions below
the level of the Supreme Court.”109 The agency went on to explain that its “policy of

103 See, e.g., Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (requiring the Social Security Administration to
apply in future adjudications the court’s interpretation of the Social Security Act).
104 Estreicher & Revesz, supra note 6, at 692–705 (documenting the SSA’s nonacquiescence policy).
105 CRS Report R44948, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI):
Eligibility, Benefits, and Financing, by William R. Morton (2018).
106 42 U.S.C. § 405(g).
107 Id.
108 Estreicher & Revesz, supra note 6, at 694.
109 H.R. REP. No. 98-618 at 24 (1984).
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nonacquiescence is essential to ensure that the agency follow its statutory mandate to administer
the Social Security program in a uniform and consistent manner.”110
Judicial Reaction to the SSA’s Nonacquiescence
The SSA’s intracircuit nonacquiescence policy came to a head in a series of court decisions
condemning the practice. During the 1980s, the SSA adopted a policy allowing it to reduce Social
Security benefits to a particular beneficiary even in the absence of any evidence that the
beneficiary’s condition had improved.111 The Ninth Circuit condemned that practice on two
occasions, ruling that the SSA could not reduce benefits unless SSA relied on evidence that the
beneficiary’s medical condition had improved.112 Following these two decisions, the SSA issued a
formal notice explaining that it would comply with the Ninth Circuit’s decision as it applied to the
parties to the case but would continue to apply its review standard in future cases, including those
that would be appealed in the Ninth Circuit.113 A short time later, an SSA beneficiary appealed his
termination of benefits to the district court in the Central District of California, one of the districts
within the Ninth Circuit.114 The case was brought as a class action that included all SSA claimants
who resided in the Ninth Circuit.115 Because the case was brought as a class action, all the
members of the class were parties to the case.116 Further, because the case was brought in a
district court in the Ninth Circuit, the district court was bound to follow Ninth Circuit precedent
that required evidence of medical improvement before the SSA terminated benefits. The district
court found for the plaintiffs, and the district court also entered a class-wide injunction requiring
the SSA to follow Ninth Circuit precedent in any benefits determination for any member of the
class residing in the Ninth Circuit.117 The district court, relying on Marbury, declared that
“governmental agencies, like all individuals and other entities, are obliged to follow and apply the
law as it is interpreted by the courts.”118 The court further declared that “for the Secretary to make
the general assertion that a decision of the Court of Appeals is not to be followed because she
disagrees with it is to operate outside the law.”119
The district court also stressed the unequal treatment introduced by the SSA’s policy for claimants
that do not have the funds or inclination to appeal their benefits determinations to federal court.
The court called the SSA’s policy “prejudicial and unfair.”120 The Ninth Circuit affirmed the
injunction except as applied to benefits denied before the Ninth Circuit held that medical
improvement was a necessary condition to the termination of benefits.121 In upholding the

110 Social Security Disability Insurance Program: Hearing Before the Senate Comm. on Finance, 98th Cong., 2d Sess.
115 (1984) (statement of Commissioner Martha A. McSteen).
111 Estreicher & Revesz, supra note 6, at 700.
112 Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982); Finnegan v. Matthews, 641 F.2d 1340 (9th Cir. 1981).
113 Estreicher & Revesz, supra note 6, at 699.
114 Lopez v. Heckler, 572 F. Supp. 26, 28 (C.D. Cal. 1983).
115 Id. at 30–32; A class action is a form of litigation in which a group of plaintiffs whose claims share certain things in
common can band together in a single lawsuit. See FED. R. CIV. P. 23; WRIGHT & MILLER, supra note 25, § 1751.
116 See Devlin v. Scardelletti, 536 U.S. 1, 7 (2002).
117 Lopez, 572 F. Supp. at 32.
118 Id. at 29.
119 Id. at 30.
120 Id. at 30.
121 Lopez v. Heckler, 725 F.2d 1489, 1510 (9th Cir. 1984).
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injunction, the Ninth Circuit held that “the Secretary, as a member of the executive, is required to
apply federal law as interpreted by the federal courts cannot seriously be in doubt.”122
Courts in the Second Circuit rejected the SSA’s intracircuit nonacquiescence policy on similar
separation of powers grounds and concerns that the SSA’s policy treated claimants who did not
appeal their benefits determinations differently from those who did.123 Echoing his Ninth Circuit
colleagues, one district court judge noted that the SSA’s nonacquiescence policy “was
inconsistent with the constitutionally required separation of powers.”124
Congressional Reaction to the SSA’s Nonacquiescence Policy
The SSA’s nonacquiescence policy also received sustained attention from Congress. In 1984, both
the House and the Senate debated including provisions in the Social Security Disability Benefits
Reform Act that would limit or prohibit the SSA’s nonacquiescence policy. The House version of
the bill would have prohibited the SSA from engaging in intracircuit nonacquiescence unless the
SSA sought Supreme Court review of an adverse ruling.125 If the Supreme Court declined to hear
the appeal or the SSA’s appeal was dismissed, it would have to acquiesce to the lower court’s
ruling.126
The Senate version of the bill took a different approach. The Senate version would not have
banned nonacquiescence outright.127 Rather, it would have required certain procedural safeguards,
such as publishing a notice in the Federal Register and sending a report to certain Senate
committees if the agency intended to engage in nonacquiescence.128 Both the House and the
Senate provisions were stripped from the bill in conference.129 The conference report, however,
stated that the decision to eliminate the nonacquiescence provisions should not “be interpreted as
approval of ‘non-acquiescence.’”130
Environmental Protection Agency: Intercircuit Nonacquiescence
Beginning in 2012, the Environmental Protection Agency (EPA) adopted an explicit policy of
intercircuit nonacquiescence under the Clean Air Act.131 EPA’s policy grew out of litigation in the
Sixth Circuit over the interpretation of its own regulations that determined when certain sources
of emissions could be treated as a single source.132 The regulations required sources to be

122 Id. at 1503.
123 Stieberger v. Heckler, 615 F. Supp. 1315, 1321 (S.D.N.Y. 1985); Stieberger v. Bowen, 801 F.2d 29 (2d Cir. 1986);
see also Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986). District courts also enjoined SSA nonacquiescence in Hyatt v.
Heckler, 579 F. Supp. 985 (D.N.C. 1984); Thomas v. Heckler, 598 F. Supp. 492 (M.D. Ala. 1984); and Holden v.
Heckler, 584 F. Supp. 463 (N.D. Ohio 1984).
124 Stieberger v. Heckler, 615 F. Supp. at 1367.
125 H.R. 3755, 98th Cong § 302(a) (1984).
126 Id. The House report accompanying the bill specifically criticized the SSA’s practice of declining to seek Supreme
Court review of an adverse ruling and then engaging in nonacquiescence. H.R. REP. NO. 98-618 at 24 (1984). “This
practice ensures that the Supreme Court will not have the opportunity to review the issue and render a decision with
which the agency would be compelled to comply.” Id. at 23.
127 See S. REP. NO. 98-466 at 21 (1984).
128 See id.
129 H.R. REP. NO. 98-1039 at 37 (1984) (Conf. Rep.).
130 Id.
131 Gumz, supra note 7, at 2.
132 Summit Petrol. Corp. v. EPA, 690 F.3d 733 (6th Cir. 2012).
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“adjacent” to be considered a single source.133 EPA interpreted adjacent to include sources that
were functionally related, irrespective of the distance between the sources.134 EPA applied this
interpretation to a natural gas refinery in Michigan, determining that the refinery and nearby
natural gas wells owned by the refinery were a single source and were therefore required to obtain
an emissions permit from EPA.135 The refinery challenged EPA’s interpretation of adjacent, and
the Sixth Circuit found in favor of the refinery, holding that adjacent required physical
proximity.136
After the Sixth Circuit’s decision, EPA issued a memorandum to its regional offices stating that
outside of the Sixth Circuit, EPA had no intention to change its interpretation of adjacent.137 A
trade association that represented companies in areas outside the Sixth Circuit challenged EPA’s
policy in the D.C. Circuit, arguing that EPA’s nonacquiescence policy violated its regulations that
require EPA to “assure fair and uniform application by all Regional Offices of the criteria,
procedures, and policies employed in implementing and enforcing [the Clean Air Act].”138 The
D.C. Circuit agreed and vacated EPA’s memo.139
In response to the D.C. Circuit’s ruling, EPA amended its regulations to no longer require it to
uniformly apply the Clean Air Act in response to an adverse court ruling.140 The regulations also
require a regional administrator to follow the decisions of a circuit court or district court with
jurisdiction over that region, even if doing so would result in inconsistent application of EPA’s
Clean Air Act programs across circuits.141 The D.C. Circuit upheld EPA’s amended regulations,
finding that the Clean Air Act did not foreclose EPA’s ability to engage in intercircuit
nonacquiescence.142
National Labor Relations Board (NLRB): Venue Choice
Nonacquiescence
The NLRB has a long history of engaging in venue choice nonacquiescence.143 The judicial
review provision of the National Labor Relations Act (NLRA) permits a challenge to an order
issued by the NLRB in multiple circuits, making it difficult for the NLRB to predict which circuit
(if any) will hear a challenge to one of its orders.144

133 Id. at 737.
134 Id. at 744.
135 Id. at 739.
136 Id. at 744.
137 U.S Env’t Prot. Agency, Memorandum on Applicability of the Summit Decision to EPA Title V and NSR Source
Determinations (Dec. 21, 2012), https://www.epa.gov/sites/default/files/2015-08/documents/inter2012.pdf.
138 Nat’l Env’t Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999 (D.C. Cir. 2014).
139 Id. at 1011.
140 40 C.F.R. §§ 56.3(d), 56.4(c).
141 Id. § 56.5(b).
142 Nat’l Env’t Dev. Ass’n’s Clean Air Project v. EPA, 891 F.3d 1041, 1050 (D.C. Cir. 2018). The D.C. Circuit further
explained that EPA’s nonacquiescence policy comported with the structure of the Clean Air Act. Id. at 1051. The Clean
Air Act directs challenges to nationally applicable regulations to the D.C. Circuit. 42 U.S.C. § 7607(b). Regionally or
locally applicable actions must be challenged in the relevant circuit court. Id. The Clean Air Act, the D.C. Circuit
noted, contemplates differences between circuits when regionally or locally applicable actions are at issue, but the Act
intends for national uniformity when nationally applicable regulations are at issue. Clean Air Project, 891 F.3d at 1051.
Accordingly, nothing in the Clean Air Act forecloses the EPA’s intercircuit nonacquiescence policy. Id.
143 See Estreicher & Revesz, supra note 6, at 705–13 (documenting the NLRB’s nonacquiescence policy).
144 See 29 U.S.C. § 160(f).
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The NLRA authorizes the NLRB to enforce the unfair labor practices provision of the Act.145
Once the NLRB issues a final order, any aggrieved party can challenge the order (1) in the circuit
where the unfair labor practice occurred, (2) where the person resides or transacts business, or
(3) in the D.C. Circuit.146 If the order creates multiple aggrieved parties—an employer and a
union, for example—the number of circuits where the order can be challenged increases.147
Possibly as early as the 1940s, but at least by 1957, the NLRB engaged in nonacquiescence.148 In
its 1957 decision in Insurance Agents International Union, the NLRB declared that
administrative law judges adjudicating unfair labor practices cases must follow the directives of
the Board and are not bound to follow circuit precedent.149 The Board has expressed that it has
congressionally delegated authority to ensure a nationally uniform administration of the NLRA
and therefore to pursue its vision of national labor policy at the administrative level except where
the Supreme Court has announced a different rule.150 Additionally, because of the broad venue
choice available under the NLRA, the Board cannot be certain which court of appeals will hear
the case.
Judicial reactions to the NLRB’s policy have been mixed. Earlier cases tended to look
unfavorably on the NLRB’s nonacquiescence practices, while some later cases have taken
account of the NLRB’s inability to predict in which court an appeal will be filed. For instance, in
one early case addressing the NLRB’s nonacquiescence, the Seventh Circuit compared the NLRB
to a district court and held that the agency’s decisions “are subject to review and consequent
approval or disapproval by the reviewing body,” ultimately holding that intracircuit
nonacquiescence usurps the proper role of the courts.151 The Third Circuit took a similar view,
stating that Congress “vested superior power for interpretation” in the courts, not the NLRB.152
As the junior tribunal, the court explained, the NLRB does not have the authority to disagree
“respectfully or otherwise” with the pronouncements of the courts.153 These early courts,
however, assumed that the NLRB was engaging in intracircuit nonacquiescence without first
evaluating the effect of the NLRA’s venue provisions. More recent cases have taken a nuanced
approach to the NLRB’s nonacquiescence in light of venue uncertainty. While condemning
intracircuit nonacquiescence, the D.C. Circuit called the NLRB’s nonacquiescence “a function of
ignorance, not defiance” due to the NLRA’s broad venue provisions.154 The court went on to
explain that, although venue uncertainty can excuse what ultimately appears to the reviewing

145 See CRS Report R42526, Federal Labor Relations Statutes: An Overview, by Jon O. Shimabukuro and David H.
Bradley (2014).
146 29 U.S.C. 160(f).
147 28 U.S.C. § 2112(a) provides a mechanism to determine which court will hear an appeal if two parties file an appeal
in different courts within ten days of an agency’s order. In that scenario the agency must apply to the Judicial Panel on
Multidistrict Litigation, which then randomly selects which court will hear the appeal. 28 U.S.C. § 2112(a)(1). If no
challenger files an appeal in the ten-day window, the court where the first appeal is filed will hear the case, setting up a
“race to the courthouse” scenario. Id.
148 See Estreicher & Revesz, supra note 6, at 707.
149 119 N.L.R.B. 768, 773 (1957).
150 Id.; Estreicher & Revesz, supra note 6, at 707.
151 Morand Bros. Beverage Co. v. NLRB, 204 F.2d 529, 532 (7th Cir. 1953).
152 Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 970 (3d Cir. 1979).
153 Id.
154 Heartland Plymouth Court MI, LLC v. NLRB, 838 F.3d 16, 23 (D.C. Cir. 2016); see also Johnson v. U.S. R.R. Ret.
Bd., 969 F.2d 1082, 1092 (D.C. Cir. 1992) (favorably comparing the NLRB’s venue choice nonacquiescence with the
intracircuit nonacquiescence of the Railroad Retirement Board).
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court to be intracircuit nonacquiescence, when the agency has good reason to know where a case
will be filed, the agency engages in “improper” nonacquiescence.155
Criticism and Support of Nonacquiescence
Intercircuit Nonacquiescence
Agency nonacquiescence has generated criticism in all of its forms. Although intracircuit
nonacquiescence is by far the most controversial form, intercircuit nonacquiescence also has its
critics. Critics of intercircuit nonacquiescence generally raise the point that intercircuit
nonacquiescence undermines uniform application of the law by federal agencies.156 This
criticism, however, is difficult to square with Congress’s choices both to create regional courts of
appeals with geographically limited jurisdiction and to establish broad venue provisions for a
number of agencies. It is also difficult to square with the Supreme Court’s praise of intercircuit
dialogue. Intercircuit dialogue would be impossible if agencies were required to adopt as a
national rule the decision of the first court of appeals to decide on an issue.157
Intracircuit Nonacquiescence
Separation of Powers
Intracircuit nonacquiescence has generated considerable debate primarily because it raises serious
separation of powers concerns and charges of unfair treatment of those who cannot or choose not
to pursue their claims in federal court.
Starting with the separation of powers concerns, critics of intracircuit nonacquiescence argue
based on Marbury and Cooper that the federal judiciary has the constitutional authority to render
authoritative interpretations of federal law that bind all entities within their geographic
jurisdiction.158 Further, they argue that the Take Care Clause of the Constitution, which states that
“the President shall take care that the laws are faithfully executed,” binds federal agencies to
follow the judicial interpretation of federal law. As one scholar put it: “Because laws assume
meaning only through interpretations, and because the judiciary has the ‘peculiar province’ of
providing those interpretations, those ‘faithfully executing’ the laws would seem bound to heed
legal interpretations provided by article III courts.”159
Scholars making the argument that intracircuit nonacquiescence violates the separation of powers
often compare agencies to district courts in their duty to comply with precedent.160 These scholars

155 Johnson, 969 F.2d at 1092. The court identified a handful of examples of when an agency has reason to know where
a challenge will arise: (1) when all courts of proper venue have adopted a view contrary to that of the agency; (2) when
an agency issues an order on remand from a court that has retained jurisdiction; and (3) when the case’s facts result in
only two venue choices, one in agreement with the agency and the other adverse to it. Id. The third example holds true
when either there is only one aggrieved party or there are multiple aggrieved parties. The additional parties do not add
to the number of courts in which a challenge could be brought. Id.
156 See Estreicher & Revesz, supra note 6, at 741 n.302; Figler, supra note 14, at 1672.
157 See Estreicher & Revesz, supra note 6, at 737.
158 Coenen, supra note 14, at 1390; Diller & Morawetz, supra note 14, at 822; Nancy M. Modesitt, The Hundred Years
War: The Ongoing Battle Between Courts and Agencies Over the Right to Interpret Federal Law, 79 MO. L. REV. 949,
967 (2009).
159 Coenen, supra note 14, at 1390.
160 See Diller & Morawetz, supra note 14, at 822–3.
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see statutory judicial review provisions as good evidence that, although Congress may have
entrusted an agency with authority to administer a statute, agencies are subordinate to the federal
courts in questions of the meaning of federal law.161
The existence of deference doctrines such as Chevron deference may limit the force of this
argument, some scholars argue.162 Chevron deference, named for the Supreme Court decision in
which it was articulated, is a judicially created doctrine that requires a court to defer to an
agency’s reasonable interpretations of ambiguous federal law it administers.163 One core
assumption of Chevron is that ambiguity in a statute is an implicit delegation of interpretive
authority from Congress to the agency.164 That Congress from time to time delegates authority to
an agency to issue authoritative interpretations of a statute it administers indicates that Congress
intended for the agency to be the primary policymaker, with the courts’ role limited to ensuring
that agencies are acting reasonably.165 Some further argue that the fact that the judiciary itself has
created and applied these deference doctrines, combined with the authority granted to agencies to
administer federal statutes through rulemakings and adjudications, demonstrates that agencies are
not simply district courts.166 Rather, they occupy a different role as a coordinate branch of
government that, at least in some circumstances, has the authority to interpret federal law for
itself.167
As at least two scholars have argued, federal agencies’ location in a coordinate branch of
government entrusted with statutory duties to administer regulatory programs indicates
Congress’s preference for administrative, rather than judicial, government.168 These scholars point
to federal agencies’ “statutory duty to develop coherent, nationally uniform policies under their
statutes” as a justification for nonacquiescence.169 According to this view, agencies are not
servants of the federal courts, and to see them that way ignores the “vital differentiations between
the functions of judicial and administrative tribunals.”170 While the Supreme Court has not
weighed in on the constitutionality of intracircuit nonacquiescence, it has come close to endorsing

161 Id.; Coenen, supra note 14, at 1390; Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 970 (3d Cir. 1979).
162 Estreicher & Revesz, supra note 6, at 723; Modesitt, supra note 158, at 964.
163 See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–43 (1984); CRS Report R44954, Chevron
Deference: A Primer, by Benjamin M. Barczewski (2023).
164 Barczewski, supra note 163. Although the Supreme Court is revisiting Chevron deference in its October 2023 term
and may overrule it, see Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023); Relentless, Inc., v. Dep’t of
Commerce, No. 22-1219, 2023 WL 6780370 (U.S. 2023), various forms of judicial deference to agency interpretations
of law have a long history, stretching back to at least the early twentieth century and possibly earlier. Edwards’ Lessee
v. Darby 25 U.S. 206, 210 (1827) (“In the construction of a doubtful and ambiguous law, the cotemporaneous
construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect,
is entitled to very great respect.”); United States v. Moore, 95 U.S. 760, 763 (1877) (“The construction given to a
statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought
not to be overruled without cogent reasons.”); McLaren v. Fleischer, 256 U.S. 477, 481 (1921); NLRB v. Hearst Pubs.,
322 U.S. 111, 130 (1944); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); THOMAS W. MERRILL, THE CHEVRON
DOCTRINE: ITS RISE AND FALL, AND THE FUTURE OF THE ADMINISTRATIVE STATE 33–54 (2022).
165 See Modesitt, supra note 158, at 964.
166 Estreicher & Revesz, supra note 6, at 723. Unlike agencies, the legal interpretations of district courts are accorded
no deference whatsoever by appellate courts. See Highmark Inc. v. Allcare Mgmt. Sys., Inc., 572 U.S. 559, 563.
(2014).
167 Estreicher & Revesz, supra note 6, at 723.
168 Id.
169 Estreicher & Revesz Reply, supra note 73, at 840.
170 Id. (quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 144 (1940)).
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the view that agencies are not equivalent to district courts. As Justice Frankfurter’s majority
opinion in FCC v. Pottsville Broadcasting Co. explained:
The technical rules derived from the interrelationship of judicial tribunals forming a
hierarchical system are taken out of their environment when mechanically applied to
determine the extent to which Congressional power, exercised through a delegated agency,
can be controlled within the limited scope of “judicial power” conferred by Congress under
the Constitution.171
Supporters of the limited availability of intracircuit nonacquiescence have relied on Justice
Frankfurter’s opinion to support their contention that courts should not treat agencies like district
courts.172
There are few (if any) scholars, however, who endorse intracircuit nonacquiescence without
reservation. Scholars who endorse the practice recognize the constitutional tension raised by
intracircuit nonacquiescence but argue that in certain circumstances, other considerations weigh
in favor of preserving the practice.173 The most complete study of the practice proposed several
limitations on the use of intracircuit nonacquiescence.174 These limitations include a requirement
that to engage in intracircuit nonacquiescence, an agency must make reasonable attempts to
persuade the judiciary to validate its position nationwide through Supreme Court Approval.175
This kind of limitation would likely rule out an agency consistently declining to appeal its losses
to the Supreme Court to preserve its ability to engage in nonacquiescence. Other potential
limitations include requiring a public reasoned justification for engaging in nonacquiescence and
subjecting instances of intracircuit nonacquiescence to strict judicial scrutiny.176
Practical Considerations: Uniformity and Fairness
Practical considerations also play a role in support for some uses of intracircuit nonacquiescence.
Some have argued that agencies should be able to engage in intracircuit nonacquiescence in
situations where the first circuit to address an issue has ruled against an agency’s position but
other circuits have found in the agency’s favor.177 Without the ability to relitigate the issue in the
circuit that ruled against it, the agency will not have the opportunity to attempt to secure a
nationally uniform rule.178 Further, the first court may wish to revisit its earlier decision in light of
the subsequent decisions in the agency’s favor.179 Intracircuit nonacquiescence in certain

171 Pottsville Broad., 309 U.S. at 141.
172 Estreicher & Revesz, supra note 6, at 723; Estreicher & Revesz Reply, supra note 73, at 840. Early in the twentieth
century, it was an open question whether the Constitution permitted a federal court to review the decisions of an
administrative agency. See Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate
Review Model of Administrative Law, 111 COLUM. L. REV. 939, 993 (2011). At the time, some argued that for a court to
review an agency decision was an unconstitutional mixing of judicial and administrative functions. Id.
173 Estreicher & Revesz, supra note 6, at 753; Gumz, supra note 7, at 11; Coenen, supra note 14, at 1345.
174 See Estreicher & Revesz, supra note 6, at 753–70.
175 Id. at 755.
176 Gumz, supra note 7, at 11; Coenen, supra note 14, at 1345. Strict scrutiny is a standard of review applied by courts
most often in cases challenging alleged racial discrimination by the government. Strict scrutiny requires the
government to show a compelling government interest and that its action was narrowly tailored to achieve that interest.
See CRS In Focus IF12391, Equal Protection: Strict Scrutiny of Racial Classifications, by April J. Anderson (2023).
177 See Estreicher & Revesz, supra note 6, at 743.
178 Id. A party cannot seek review of a judicial decision in its favor. Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct.
2356, 2362 (2019). Accordingly, although the agency may wish to establish a nationally uniform rule, it cannot appeal
to the Supreme Court in cases where it prevailed in the court of appeals.
179 See Estreicher & Revesz, supra note 6, at 743; Ross E. Davies, Remedial Nonacquiescence, 89 IOWA L. REV. 65,
(continued...)
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circumstances might further the percolation of legal issues across the federal court system and
possibly help facilitate the selection of a nationally uniform rule.
The claim that an appellate court may want to revisit a previous adverse ruling against an agency,
however, is debatable. Some have suggested that appellate courts rarely revisit prior rulings
regardless of how other circuits have ruled.180 If courts rarely revisit their prior rulings, there is
little dialogue to be preserved in the intracircuit nonacquiescence context, and intracircuit
nonacquiescence may just be a “vehicle for delaying ... justice.”181
Further, intracircuit nonacquiescence is not without practical costs. While it may help facilitate a
nationally uniform rule in some circumstances, some have argued that intracircuit
nonacquiescence places those without the means or the inclination to appeal their cases to federal
court at a disadvantage.182 For these scholars, the fact that those with the fewest resources are
likely the ones that bear the costs of agencies’ decisions to engage in intracircuit nonacquiescence
weighs in favor of abandoning the practice altogether on fairness grounds alone.183
Considerations for Congress
Congress has the authority to limit or bar agencies from engaging in nonacquiescence of any
kind.184 Under its constitutional power to define the powers and authority of administrative
agencies, Congress can define in what situations (if any) nonacquiescence is permissible.185
Agencies are “creatures of statutes,” and, accordingly, Congress retains the power to limit or
prohibit agencies engaging in nonacquiescence regardless of the inapplicability of collateral
estoppel to the federal government and regardless of the lack of intercircuit stare decisis across
the federal court system.186
Congress has on occasion debated whether to limit or bar nonacquiescence. As noted above, both
the House and the Senate debated whether to limit or bar entirely the SSA’s ability to engage in
intracircuit nonacquiescence.187 Ultimately, the conference committee chose to leave out a
specific provision addressing nonacquiescence at the agency, but it noted in its report that the
absence of such a provision was not an endorsement of the practice.188

77–78 (2003). Some have noted that if intracircuit nonacquiescence were barred in all instances, then only the courts
that had ruled in the agency’s favor would be open to possible reconsideration of their earlier position, because each
new party to come before the agency on that issue would be able to appeal to the federal courts. See Estreicher &
Revesz, supra note 6, at 744.
180 Diller & Morawetz, supra note 14, at 812; Davies, supra note 179, at 78.
181 Davies, supra note 179, at 78.
182 Coenen, supra note 14, at 1414–16; Diller & Morawetz, supra note 14, at 814–16.
183 Diller & Morawetz, supra note 14, at 814–16.
184 See CRS Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies, by Todd
Garvey and Sean M. Stiff (2023).
185 Id.; Cong. Rsch. Serv., Overview of Delegations of Legislative Power, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artI-S1-4-1/ALDE_00001315/ (last visited Dec. 18, 2023).
186 Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 665 (2022).
187 See supra “Congressional Reaction to the SSA’s Nonacquiescence Policy.”
188 Id.
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In 1975, Congress created a commission dubbed the Commission on Revision of the Federal
Appellate System to study the federal appellate court system, including agency nonacquiescence,
and provide recommendations for improvement.189 The commission was known informally as the
“Hruska Commission” for its chairman, Senator Roman L. Hruska.190 Nonacquiescence in both
its inter- and intracircuit forms received extended unfavorable treatment by the commission,
which noted that nonacquiescence contributed to uncertainty and confusion in areas of law in
which an agency has engaged in nonacquiescence.191 The commission further expressed that
nonacquiescence encourages forum shopping and permits differential treatment of similarly
situated people.192 To remedy these issues, the commission recommended creating a new court
with national jurisdiction that could issue nationally binding decisions.193
Congress could approximate the recommendation of the Hruska Commission by limiting appeals
of agency action to a single court. As described above, Congress has at times limited the venue of
certain appeals to a single court, ensuring national uniformity without the creation of a new
court.194 Congress could limit the venue for appeals from particular actions, particular agencies,
or for all actions taken by all agencies. Some scholars have advocated for limiting venue choice
as a way to reduce some of the negative costs of nonacquiescence.195

Author Information

Benjamin M. Barczewski

Legislative Attorney

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189 Hruska Commission, supra note 9.
190 Id.
191 Id. at 349–61.
192 Id. at 350–51.
193 Id. at 360.
194 See supra “Statutory Venue Provisions.”
195 Estreicher & Revesz, supra note 6, at 764.
Congressional Research Service
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