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`1
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` Cite as: 585 U. S. ____ (2018)
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`Statement of GORSUCH, J.
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`SUPREME COURT OF THE UNITED STATES
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` E. I. DU PONT DE NEMOURS & CO., ET AL. v.
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` BOBBI-JO SMILEY, ET AL.
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`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
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`STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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` No. 16–1189. Decided June 28, 2018
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`The motion of the Cato Institute for leave to file a brief
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`as amicus curiae is granted. The motion of Pacific Legal
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`Foundation, et al. for leave to file a brief as amici curiae is
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`granted. The petition for a writ of certiorari is denied.
`JUSTICE ALITO took no part in the consideration or deci-
`sion of these motions and this petition.
` Statement of JUSTICE GORSUCH, with whom THE CHIEF
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`JUSTICE and JUSTICE THOMAS join, respecting the denial
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`of certiorari.
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`Can an agency advance an interpretation of a statute for
`the first time in litigation and then demand deference for
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`its view? There is a well-defined circuit split on the ques-
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`tion. The Court of Appeals in this case said yes, joining
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`several other circuits who share that view. 839 F. 3d 325,
`329, 333–334 (CA3 2016) (case below); SEC v. Rosenthal,
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`650 F. 3d 156, 160 (CA2 2011); TVA v. Whitman, 336 F. 3d
`1236, 1250 (CA11 2003); Dania Beach v. FAA, 628 F. 3d
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`581, 586–587 (CADC 2010). But “[t]wo circuits, the Sixth
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`and Ninth, expressly deny Skidmore deference to agency
`litigation interpretations, and the Seventh does so implic-
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`itly.” Hubbard, Comment, Deference to Agency Statutory
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`Interpretations First Advanced in Litigation? The Chevron
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`Two-Step and the Skidmore Shuffle, 80 U. Chi. L. Rev.
`447, 462 (2013) (footnotes omitted); Smith v. Aegon Com-
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`panies Pension Plan, 769 F. 3d 922, 929 (CA6 2014); Alaska
`v. Federal Subsistence Bd., 544 F. 3d 1089, 1095 (CA9
`2008); In re UAL Corp. (Pilots’ Pension Plan Termination),
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`2
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` E. I. DU PONT DE NEMOURS & CO. v. SMILEY
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`Statement of GORSUCH, J.
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`468 F. 3d 444, 449–450 (CA7 2006).
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`The issue surely qualifies as an important one. After
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`all, Skidmore deference only makes a difference when the
`court would not otherwise reach the same interpretation
`as the agency. And a number of scholars and amici have
`raised thoughtful questions about the propriety of afford-
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`ing that kind of deference to agency litigation positions.
`For example, how are people to know if their conduct is
`permissible when they act if the agency will only tell them
`later during litigation? Don’t serious equal protection
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`concerns arise when an agency advances an interpretation
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`only in litigation with full view of who would benefit and
`who would be harmed? Might the practice undermine the
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`Administrative Procedure Act’s structure by incentivizing
`agencies to regulate by amicus brief, rather than by rule?
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`Should we be concerned that some agencies (including the
`one before us) have apparently become particularly ag-
`gressive in “attempt[ing] to mold statutory interpretation
`and establish policy by filing ‘friend of the court’ briefs in
`private litigation”? Eisenberg, Regulation by Amicus: The
`Department of Labor’s Policy Making in the Courts, 65
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`Fla. L. Rev. 1223, 1223 (2013); see also, e.g., Hickman &
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`Krueger, In Search of the Modern Skidmore Standard, 107
`Colum. L. Rev. 1235, 1303 (2007); Pierce, Democratizing
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`the Administrative State, 48 Wm. & Mary L. Rev. 559,
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`606–607 (2006); Merrill, Judicial Deference to Executive
`Precedent, 101 Yale L. J. 969, 1010–1011 (1992).
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`Respectfully, I believe this circuit split and these ques-
`tions warrant this Court’s attention. If not in this case
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`then, hopefully, soon.
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