In the 2005 Brand X decision, the Supreme Court held that “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). Where the court does not hold that the statute is unambiguous, “the agency may, consistent with the court’s holding, choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes.” Id. at 983. That is, if a statute might mean A or B, and a court at time 1 says that the statute is ambiguous but that A is the better reading, and an agency at time 2 says that B is the better reading (and says so in a rule or order otherwise entitled to Chevron deference), the agency’s interpretation at time 2 trumps the court’s interpretation at time 1. Or so we thought. On Tuesday, in Gutierrez-Brizuela v. Lynch, a Tenth Circuit panel added a twist (a twist that turns Brand X almost entirely on its head): even if the agency at time 2 chooses interpretation B in a rule or order otherwise entitled to Chevron deference, the agency cannot apply interpretation B until a later date (time 3) at which the court “approves” the agency’s choice.

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