throbber
Cite as: 578 U. S. ____ (2016)
`
` THOMAS, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
` UNITED STUDENT AID FUNDS, INC. v.
`
`
` BRYANA BIBLE
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
`
`
`
` No. 15–861. Decided May 16, 2016
`
`The petition for a writ of certiorari is denied.
`JUSTICE THOMAS, dissenting
`
`from the denial of
`
`certiorari.
`
`This petition asks the Court to overrule Auer v. Robbins,
`519 U. S. 452 (1997), and Bowles v. Seminole Rock & Sand
`
`Co., 325 U. S. 410 (1945). For the reasons set forth in my
`opinion concurring in the judgment in Perez v. Mortgage
`
`
`Bankers Assn., 575 U. S. ___, ___ (2015), that question is
`worthy of review.
`
`
`The doctrine of Seminole Rock deference (or, as it is
`sometimes called, Auer deference) permits courts to defer
`to an agency’s interpretation of its own regulation “unless
`that interpretation is plainly erroneous or inconsistent
`with the regulation.” Decker v. Northwest Environmental
`
`Defense Center, 568 U. S. ___, ___ (2013) (slip op., at 14)
`(internal quotation marks omitted). Courts will defer even
`when the agency’s interpretation is not “the only possible
`
`reading of a regulation—or even the best one.” Ibid.
`
`Any reader of this Court’s opinions should think that
`
`the doctrine is on its last gasp. Members of this Court
`have repeatedly called for its reconsideration in an appro-
`priate case. See Mortgage Bankers, 575 U. S., at ___–___
`(ALITO, J., concurring) (slip op., at 1–2); id., at ___ (Scalia,
`J., concurring in judgment) (slip op., at 5); id., at ___
`(THOMAS, J., concurring in judgment) (slip op., at 1–2);
`Decker, 568 U. S., at ___–___ (ROBERTS, C. J., concurring)
`(slip op., at 1–2); id., at ___–___ (Scalia, J., concurring in
`part and dissenting in part) (slip op., at 2–7); Talk Amer-
`
`
`
`
`
`1
`
`
`
`
`
`

`
`UNITED STUDENT AID FUNDS, INC. v. BIBLE
`
` THOMAS, J., dissenting
`
`
`ica, Inc. v. Michigan Bell Telephone Co., 564 U. S. 50, 68–
`
`69 (2011) (Scalia, J., concurring); see also Christopher v.
`SmithKline Beecham Corp., 567 U. S. ___, ___–___ (2012)
`(slip op., at 10–14) (refusing to defer under Auer). And
`rightly so. The doctrine has metastasized, see Knudsen &
`Wildermuth, Unearthing the Lost History of Seminole
`Rock, 65 Emory L. J. 47, 54–68 (2015) (discussing Semi-
`nole Rock’s humble origins), and today “amounts to a
`transfer of the judge’s exercise of interpretive judgment to
`the agency,” Mortgage Bankers, supra, at ___ (slip op., at
`13) (opinion of THOMAS, J.). “Enough is enough.” Decker,
`supra, at ___ (opinion of Scalia, J.) (slip op., at 1).
`
`This case is emblematic of the failings of Seminole Rock
`
`
`deference. Here, the Court of Appeals for the Seventh
`Circuit deferred to the Department of Education’s inter-
`pretation of the regulatory scheme it enforces—an inter-
`
`pretation set forth in an amicus brief that the Department
`filed at the invitation of the Seventh Circuit. For the
`reasons stated in Judge Manion’s partial dissent, 799 F.
`
`3d 633, 663–676 (2015), the Department’s interpretation is
`not only at odds with the regulatory scheme but also defies
`ordinary English. More broadly, by deferring to an agen-
`cy’s litigating position under the guise of Seminole Rock,
`courts force regulated entities like petitioner here to “di-
`vine the agency’s interpretations in advance,” lest they “be
`held liable when the agency announces its interpretations
`for the first time” in litigation. Christopher, supra, at ___
`(slip op., at 14). By enabling an agency to enact “vague
`rules” and then to invoke Seminole Rock to “do what it
`pleases” in later litigation, the agency (with the judicial
`branch as its co-conspirator) “frustrates the notice and
`predictability purposes of rulemaking, and promotes
`arbitrary government.” Talk America, Inc., supra, at 69
`
`(Scalia, J., concurring).
`
`This is the appropriate case in which to reevaluate
`
`Seminole Rock and Auer. But the Court chooses to sit idly
`
`
`
`2
`
`
`
`
`
`
`

`
`
`
`3
`
`
`
` Cite as: 578 U. S. ____ (2016)
`
` THOMAS, J., dissenting
`
`
`by, content to let “[h]e who writes a law” also “adjudge its
`
`violation.” Decker, supra, at ___ (opinion of Scalia, J.)
`(slip op., at 7). I respectfully dissent from the denial of
`certiorari.

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