1 Cite as: 583 U. S. ____ (2018)

T HOMAS , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

GARCO CONSTRUCTION, INC. v. ROBERT M. SPEER, ACTING SECRETARY OF THE ARMY

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 17–225. Decided March 19, 2018
The petition for a writ of certiorari is denied.
J USTICE T HOMAS , with whom J USTICE G ORSUCH joins, dissenting from the denial of certiorari. Petitioner Garco Construction, Inc. (Garco), had a con

tract with the Army Corps of Engineers to build housing units on Malmstrom Air Force Base. As part of its con

tract, Garco agreed to comply with all base access policies. After construction began, the base denied access to certain employees of Garco’s subcontractor. Although the text of the base’s access policy required only a “wants and war

rants” check, App. to Pet. for Cert. 105a, the base clarified that the policy also required background checks and ex

cluded many individuals with criminal histories—even if those individuals did not have any wants or warrants. Garco’s request for an equitable adjustment of the contract was denied, and the Armed Services Board of Contract Appeals denied Garco’s appeal. The Court of Appeals for the Federal Circuit affirmed . Despite acknowledging “some merit” to Garco’s argument that “ ‘wants and war

rants’ ” means only wants and warrants, the Federal Cir

cuit deferred to the base’s interpretation of its access policy under Auer v. Robbins , 519 U. S. 452 (1997). 856 F. 3d 938, 943 (2017). Garco filed a petition for ce rtiorari, asking whether this Court’s decisions in Auer

, supra , and Bowles v. Seminole Rock & Sand Co. , 325 U. S. 410 (1945), should be over

ruled. I would have granted certiorari to address that2 GARCO CONSTRUCTION, INC. v. SPEER

T HOMAS , J., dissenting
question. Seminole Rock and Auer require courts to give “control

ling weight” to an agency’s inte rpretation of its own regu

lations. Seminole Rock

, supra , at 414; accord, Auer

, supra , at 461. To qualify, an agency’s interpretation need not be “the best” reading of the regulation. Decker v. Northwest Environmental Defense Center , 568 U. S. 597, 613 (2013). It need only be a reading that is not “plainly erroneous or inconsistent with the regulation.” Ibid. (internal quota

tion marks omitted). Although Seminole Rock deference was initially applied exclusively “in the price control con

text and only to official ag ency interpretations,” Knudsen & Wildermuth, Unearthing the Lost History of Seminole Rock , 65 Emory L. J. 47, 52–53 (2015), this Court has since expanded it to many contexts and to informal inter

pretations. See id., at 52–53, 68–77, 86–92 (2015); Perez v. Mortgage Bankers Assn. , 575 U. S. ___, ___–___ (2015) (T HOMAS , J., concurring in judgment) (slip op., at 3–4). Seminole Rock deference is constitutionally suspect. See Mortgage Bankers , 575 U. S., at ___–___ (slip op., at 8–16). It transfers “the judge’s exerci se of interpretive judgment to the agency,” which is “not properly constituted to exer

cise the judicial power.” Id., at ___ (slip op., at 13). It also undermines “the judicial ‘check’ on the political branches” by ceding the courts’ authority to independently interpret and apply legal texts. Id., at ___ (slip op., at 14). And it results in an “accumulation of governmental powers” by allowing the same agency t hat promulgated a regulation to “change the meaning” of that regulation “at [its] discre

tion.” Id., at ___ (slip op., at 16). This Court has never “put forward a persuasive justification” for Seminole Rock deference. Decker

, supra , at 617 (Scalia, J. concurring in part and dissenting in part); see also Mortgage Bankers

, supra , at ___–___ (opinion of T HOMAS , J.) (slip op., at 18– 23) (explaining why each of the proffered explanations for the doctrine is unpersuasive).3 Cite as: 583 U. S. ____ (2018)

T HOMAS , J., dissenting
By all accounts, Seminole Rock deference is “on its last gasp.” United Student Aid Funds, Inc. v. Bible , 578 U. S. ___, ___ (2016) (T HOMAS , J., dissenting from denial of certiorari) (slip op., at 1). Several Members of this Court have said that it merits reconsideration in an appropriate case. See, e.g., Mortgage Bankers , 575 U. S., at ___–___ (A LITO , J., concurring in part and concurring in judgment) (slip op., at 1–2); id., at ___ (opinion of T HOMAS , J.) (slip op., at 23); Decker

, supra , at 615–616 (R OBERTS , C. J., concurring). Even the author of Auer came to doubt its correctness. See Mortgage Bankers

, supra , at ___–___ (Scalia, J., concurring in judgment) (slip op., at 2–5); Decker

, supra , at 616–621 (opinion of Scalia, J.); Talk America, Inc. v. Michigan Bell Telephone Co. , 564 U. S. 50, 68–69 (2011) (Scalia, J., concurring). This would have been an ideal case to reconsider Semi

nole Rock deference, as it illustrates the problems that the doctrine creates. While Garco was performing its obliga

tions under the contract, the base adopted an interpreta

tion of its access policy that read “wants and warrants” to include “wants or warrants, sex offenders, violent offend

ers, those who are on probation, and those who are in a pre-release program.” App. to Pet. for Cert. 60a. The Federal Circuit deferred to t hat textually dubious inter

pretation. 856 F. 3d, at 945. Thus, an agency was able to unilaterally modify a contract by issuing a new “ ‘clarifica

tion’ with retroactive effect.” Decker

, supra , at 620 (opin

ion of Scalia, J.). This type of conduct “frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.” Talk America

, supra , at 69 (opinion of Scalia, J.). True, the agency here is part of the military, and the military receives substantial deference on matters of policy. See Orloff v. Willoughby , 345 U. S. 83, 94 (1953). But nothing about the military context of this case affects the legitimacy of Seminole Rock deference. “The proper4 GARCO CONSTRUCTION, INC. v. SPEER

T HOMAS , J., dissenting question faced by courts in inte rpreting a regulation is . . . what the regulation means .” Mortgage Bankers , 575 U. S., at ___ (opinion of T HOMAS , J.) (slip op., at 18) (emphasis added). While the military is far better equipped than the courts to decide matters of tactics and security, it is no better equipped to read le gal texts. Pointing to the military’s policy expertise “misidentifies the relevant inquiry.” Ibid. Because this Court has passed up another opportunity to remedy “precisely the accumulation of governmental powers that the Framers warned against,” id., at ___ (slip op., at 16), I respectfully dissent from the denial of certiorari.