Working Paper No. 12-20:
Remedial Nonacquiescence

Author(s):

Ross Davies

Date Posted: February 2012

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Abstract:

This Article identifies a new kind of nonacquiescence and suggests ways to deal with it. "Nonacquiescence" is an agency's persistence in its own interpretation of a statute in the face of contrary judicial precedent. It has its pros and cons. For example, it aids in the development of a coherent national body of law by facilitating the "percolation" of important issues up to the Supreme Court, but in the short term the very process of percolation imposes on parties the costs of repetitive litigation and uncertainty about the law. The intractability of the problems nonacquiescence raises with respect to the proper role of the administrative state have made it a frequent source of friction between courts and agencies, as well as a hardy perennial in Congress and law reviews.

Traditionally, nonacquiescence has been divided into three forms: intercircuit, intracircuit, and venue choice. But there is at least one more form, which this Article labels "remedial nonacquiescence." Unlike the traditional forms, which involve agency flouting of precedent, remedial nonacquiescence operates silently. Using the National Labor Relations Board as an example, this Article shows how each federal appellate court's commitment to its own "law of the circuit," combined with each court's willingness to enforce broad agency remedial orders that reach beyond a court's geographical jurisdiction, can enable an agency to leverage a court's contempt power to avoid problems of nonacquiescence in other jurisdictions. The results are bad. For example, percolation is corrupted because litigation in multiple circuits on some hard issues is replaced by contempt actions in the original enforcing circuit, yet the costs of repetitive litigation and uncertainty increase because agencies enjoy the flexibility to opt for contempt when the law of the enforcing circuit is favorable, or for a new enforcement action in another jurisdiction when the enforcing circuit's law is unfavorable. Remedial nonacquiescence is, in other words, forum shopping without tears for agencies. Courts can use existing Supreme Court precedent to combat remedial nonacquiescence. To do so, however, they must be modest in their devotion to the "law of the circuit" and in their willingness to impose that law in broad remedial orders.