Ninth Circuit Grapples with Agency Positions First Raised in Litigation

In two recent cases, Amazon.com¹ and Altera,² different Ninth Circuit panels issued important decisions involving cost-sharing arrangements. Underlying these cases is a more fundamental issue: How much weight should courts give an agency’s position that is first raised in litigation? Because the two decisions approach the question in ways that are hard to reconcile, a rehearing of Altera by the full Ninth Circuit is warranted.

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