PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.
for writ of certiorari to the United States Court of Appeals
for the Seventh Circuit denied.
THOMAS, dissenting from the denial of certiorari.
petition asks the Court to overrule Auer v.
Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79
(1997), and Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945).
For the reasons set forth in my opinion concurring in the
judgment in Perez v. Mortgage Bankers
Assn., 575 U.S. ___, ___, 135 S.Ct. 1199, 191 L.Ed.2d
186 (2015), that question is worthy of review.
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.
___, ___, 133 S.Ct. 1326, 185 L.Ed.2d 447, 462 (2013)
(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."
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 appropriate
case. See Mortgage Bankers, 575 U.S. at ___-___, 135
S.Ct. 1199, 191 L.Ed.2d 186, 202-203 (ALITO, J., concurring);
id., at ___, 135 S.Ct. 1199, 191 L.Ed.2d 186, 203
(Scalia, J., concurring in judgment); id., at ___,
135 S.Ct. 1199, 191 L.Ed.2d 186, 205 (THOMAS, J., concurring
in judgment); Decker, 568 U.S. , at
___-___, 133 S.Ct. 1326, 185 L.Ed.2d 447, 463 (ROBERTS, C.
J., concurring); id., at ___-___, 133 S.Ct. 1326,
185 L.Ed.2d 447, 463-470 (Scalia, J., concurring in part and
dissenting in part); Talk America, Inc. v.
Michigan Bell Telephone Co., 564 U.S. 50, 68-69, 131
S.Ct. 2254, 180 L.Ed.2d 96 (2011) (Scalia, J., concurring);
see also Christopher v. SmithKline Beecham
Corp., 567 U.S. ___, ___-___, 132 S.Ct. 2156, 183
L.Ed.2d 153, 169-173 (2012) (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 Seminole 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 ___, 135
S.Ct. 1199, 191 L.Ed.2d 186, 212 (opinion of THOMAS, J.).
" Enough is enough." Decker,
supra, at ___, 133 S.Ct. 1326, 185 L.Ed.2d 447, 463
(opinion of Scalia, J.).
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 interpretation
of the regulatory scheme it enforces--an interpretation 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
agency's litigating position under the guise of
Seminole Rock, courts force regulated entities like
petitioner here to " divine 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 ___, 132 S.Ct. 2156, 183 L.Ed.2d 153, 172. 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,
131 S.Ct. 2254, 180 L.Ed.2d 96 (Scalia, J., concurring).
the appropriate case in which to reevaluate Seminole
Rock and Auer. But the Court chooses to sit
idly by, content to let " [h]e who writes a law"
also " adjudge its violation." Decker,
supra, at ___, 133 S.Ct. 1326, 185 L.Ed.2d 447, 467
(opinion of ...