Administrative agencies should abide the law of the relevant judicial circuit in matters arising within the jurisdiction of that circuit[i].  Administrative agencies are required to abide the law, until and unless the law is changed by the respective court of appeals or reversed by the U.S. Supreme Court[ii].  In Zetino v. Holder, 2010 U.S. App. LEXIS 3164 (9th Cir. Feb. 18, 2010), the court held that the circuit courts can review decisions of administrative agencies.  Further, an agency in the executive branch cannot regulate the jurisdiction of Federal courts.

Non-acquiescence is the deliberate refusal by an administrative agency’s to implement court decisions in cases adjudicated before it[iii].  In Stieberger v. Sullivan, 738 F. Supp. 716 (S.D.N.Y. 1990), the court held that in order to establish agency non-acquiescence, it must be proved that administrative agency has deliberately failed to follow the law of the circuit courts that have jurisdiction over the cause of action.  An agency’s conduct may not be considered non-acquiescence unless there are substantial differences between agency policy and court of appeals holdings and unless these differences have influenced the agency’s adjudication of individual cases.

An agency is bound to follow higher authority only when it acts as an adjudicator and not when it litigates[iv]. Further, an administrative agency does not have the power, without statutory authority, to overrule or ignore judicial precedent[v].

[i] Industrial Turnaround Corp. v. NLRB, 115 F.3d 248 (4th Cir. 1997)

[ii] id

[iii] Stieberger v. Sullivan, 738 F. Supp. 716 (S.D.N.Y. 1990)

[iv] Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001)

[v] Hecker v. Stark County Social Serv. Bd., 527 N.W.2d 226, 232 (N.D. 1994)