Does Stinson Deference Survive Loper Bright? Cert Petition in Poore v. United States Gives Supreme Court Opportunity to Decide. 

On September 18th, the Supreme Court requested that the government file a response to the pending cert petition in Poore v. United States, a case raising an interesting Loper Bright implementation question.   

After the Supreme Court used Loper Bright to overrule Chevron, which required courts to defer to federal agencies’ interpretations of purported ambiguities in statutes, and made clear that the Administrative Procedure Act requires courts to independently say what the law is even in cases involving agencies, questions have arisen about what that landmark ruling means for other forms of judicial deference to agencies. One lingering question is whether judicial deference to agencies’ views on the meaning of their own regulations under Kisor v. Wilkie will ultimately survive Loper Bright’s reasoning. Another related question is whether so-called Stinson deference—where courts give deference to the U.S. Sentencing Commission’s interpretation of the Sentencing Guidelines, which are used to calculate federal sentences, in its commentary—can be squared with the Supreme Court’s decisions in Kisor and Loper Bright. True, Loper Bright rejected deference to agency statutory interpretations and Kisor substantially narrowed deference to agency interpretations of regulations. But there is, at minimum, substantial tension between those decisions and the idea that courts must defer in the criminal context to the Sentencing Commission’s views on the Sentencing Guidelines as set forth in the commentary, with the added wrinkle that the Sentencing Guidelines themselves are not technically binding on courts. 

That is what is at issue in Poore. At sentencing, the district court relied on the Commission’s commentary on the Guidelines to give him a longer prison sentence than he otherwise would have received under the plain language of the Guidelines themselves. The Seventh Circuit affirmed, declining to revisit its post-Kisor Stinson deference precedent in light of Loper Bright. Mr. Poore’s cert petition thus presents the question “whether the limits on agency deference announced in Kisor and Loper Bright constrain the deference courts may accord the Sentencing Commission’s interpretations of its own rules via commentary.” After the government waived its right to respond, the Court requested a response, signaling that at least one Justice is interested in this issue. And last Friday, the New Civil Liberties Alliance filed an amicus brief in support of the petition, underscoring the importance of this question.  

It will be interesting to see whether the Court grants cert in Poore. If so, this case will be one worth paying attention to.