Saturday, December 30, 2023

CRS Reports – Week of 12-23-23 - Agency Nonacquiescence

This week the Congressional Research Service (CRS) published a report on “Agency Nonacquiescence: An Overview of Constitutional and Practical Considerations”. The report looks at the various ways that federal agencies have or may respond to adversarial judgments in Federal Courts. The report provides (pg 4) a hypothetical situation that provides a broad look at the scope of the issue:

“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?”

As always with a CRS report, it is important to remember that these reports are targeted at members of Congress with a view to informing potential congressional action. This report notes (pg 25):

“Congress has the authority to limit or bar agencies from engaging in nonacquiescence of any kind. Under its constitutional power to define the powers and authority of administrative agencies, Congress can define in what situations (if any) nonacquiescence is permissible. 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 [prevents a party from re-litigating an issue that was already decided in another legal action] to the federal government and regardless of the lack of intercircuit stare decisis [a legal principle that requires courts to follow previous judgments when resolving cases with similar facts] across the federal court system.”

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