Sixth Circuit Opines on Types of Deference after Loper Bright (4/28/25)

In United States v. Bricker, ___ F.4th ___ (6th Cir. 2/22/25), CA6 here and GS here the majority held that 18 U.S.C. § 3582(c)(1)(A) allowing a court to reduce a final prison sentence for “extraordinary and compelling reasons” was sufficiently plain in meaning that Congress did not delegate to the Sentencing Commission the authority to interpret the phrase to include consideration of a nonretroactive sentencing law change it as it had in U.S.S.G. § 1B1.13(b)(6). The majority reached that conclusion based on its holding of plain meaning or nonambiguity.

Query would the majority holding have been different if the Court found an express delegation of interpretive authority which still requires ambiguity but cannot be based on ambiguity alone? I get into that issue below.

The dissenting judge (Jane Stranch) argues that “extraordinary and compelling reasons” is ambiguous, without a plain meaning (at least with regard to the factor under consideration), and that Congress delegated the authority to the Commission to interpret “extraordinary and compelling reasons” within the bounds of its ambiguity. The dissent did not argue that ambiguity alone warranted the conclusion of congressional delegation of interpretive authority (that is prohibited by Loper Bright’s rejection of Chevron deference), but that the structure and context of the provision made it clear that Congress intended the Commission to interpret the ambiguous phrase. Under this argument, the delegation would pass muster under Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).

The interesting part of Judge Stranch’s dissent is her conclusion that Congress delegated interpretive authority to the Commission. She argues that delegated interpretive authority (again based on factors other than ambiguity alone) is governed by the same deference as under Chevron—reasonable within the scope of ambiguity. (All iterations of deference have required statutory ambiguity; Chevron alone treated ambiguity as the basis for a fictional congressional delegation.) Of course, delegated interpretive authority requires some ambiguity, otherwise there is no interpretive authority to delegate or apply. But once there is ambiguity and a delegation of interpretive authority not based on ambiguity, the agency reasonable interpretation should control. And, the elements for Loper Bright qualified deference are present--congressional delegation and reasonable interpretation within the scope of the statutory ambiguity.

A key issue in the difference between the majority and the dissent was a Sixth Circuit precedent, United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (en banc). McCall’s en banc decision had treated the phrase “extraordinary and compelling reasons” before the Commission’s later guidance in question in Bricker to have a plain meaning not to include a nonretroactive factor such as a reduction in authorized sentences. Of course, under the Chevron regime, agency interpretations could overrule prior court precedents in some cases. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). With the demise of Chevron via Loper Bright, Brand X was no longer controlling for agency interpretations given deference based on ambiguity alone. In Bricker, the majority held that McCall was controlling on the issue of whether the phrase “extraordinary and compelling reasons” was ambiguous; McCall held the phrase was not on the retroactive factor issue. The majority thought McCall’s holding of nonambiguity was binding precedent on the issue of consideration of a nonretroactive sentencing factor. 

Regarding McCall, Judge Stranch argues that, given that deference for delegated interpretive authority functions like Chevron did, the Brand X holding permits an agency to overrule a prior court holding if within the bounds of the expressly delegated authority—reasonable within those bounds.

On the ambiguity issue, the majority tellingly says this (Slip op. 18): “A plain reading of the compassionate-release statute conflicts with the Commission’s new policy statement.” The majority’s own choice of words is not consistent with its main thesis—that there is one plain meaning (for if there were only one plain meaning, the majority would have used "the" rather than "a") I will submit to any reasonable reader that “extraordinary and compelling reasons” is not the stuff of which plain meaning or nonambiguity is made. Thus, in the end, the difference between the majority and the dissent is whether Congress delegated to the Commission interpretive authority over the phrase “extraordinary and compelling reasons.” I suspect that, as so common in the present, factors other than interpretive approaches—textualism, pragmatism, purposivism, etc.—may control that result when the issue ultimately gets to the Supreme Court as it is likely to do so, perhaps in Bricker.

Finally, one question inherent in Loper Bright is the continuing validity of Supreme Court deference authority prior to Chevron which was based on factors other than statutory ambiguity alone. Chevron created the fiction, now rejected, that ambiguity alone was congressional interpretive delegation. Before Chevron, Skidmore-like factors such as contemporaneity of the agency interpretation and longevity were considered in granting deference (as opposed to just power to persuade). The Supreme Court in Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S. 44, 57 (2011) assumed a difference between Chevron deference and prior deference and moved Chevron to the forefront. With Chevron now gone, is there any space for pre-Chevron deference, although some type of added ooomph for agency interpretation may be suggested in the Loper Bright's Court's discussion of Skidmore.