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

THOMAS, 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. 

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

dissenting from the denial of certiorari. 

Petitioner Garco Construction, Inc. (Garco), had a contract with the Army Corps of Engineers to build housing

units on Malmstrom Air Force Base. As part of its contract, 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 warrants” check, App. to Pet. for Cert. 105a, the base clarified 

that the policy also required background checks and excluded 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 warrants’” means only wants and warrants, the Federal Circuit 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 certiorari, asking whether this

Court’s decisions in Auer, supra, and Bowles v. Seminole 

Rock & Sand Co., 325 U. S. 410 (1945), should be overruled. I would have granted certiorari to address that 
 

 

 

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THOMAS, J., dissenting 

question.

 Seminole Rock and Auer require courts to give “controlling weight” to an agency’s interpretation of its own regulations. 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 quotation marks omitted). Although Seminole Rock deference 

was initially applied exclusively “in the price control context and only to official agency 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 interpretations. See id., at 52–53, 68–77, 86–92 (2015); Perez v. 

Mortgage Bankers Assn., 575 U. S. ___, ___–___ (2015) 

(THOMAS, 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 exercise of interpretive judgment

to the agency,” which is “not properly constituted to exercise 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 that promulgated a regulation

to “change the meaning” of that regulation “at [its] discretion.” 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 THOMAS, J.) (slip op., at 18–

23) (explaining why each of the proffered explanations for

the doctrine is unpersuasive). 
Cite as: 583 U. S. ____ (2018) 3 

THOMAS, J., dissenting 

By all accounts, Seminole Rock deference is “on its last 

gasp.” United Student Aid Funds, Inc. v. Bible, 578 U. S. 

___, ___ (2016) (THOMAS, 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 ___–___ 

(ALITO, J., concurring in part and concurring in judgment) 

(slip op., at 1–2); id., at ___ (opinion of THOMAS, J.) (slip 

op., at 23); Decker, supra, at 615–616 (ROBERTS, 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 Seminole Rock deference, as it illustrates the problems that the

doctrine creates. While Garco was performing its obligations under the contract, the base adopted an interpretation of its access policy that read “wants and warrants” to 

include “wants or warrants, sex offenders, violent offenders, 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 that textually dubious interpretation. 856 F. 3d, at 945. Thus, an agency was able to

unilaterally modify a contract by issuing a new “ ‘clarification’ with retroactive effect.” Decker, supra, at 620 (opinion 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 proper 
 

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THOMAS, J., dissenting 

question faced by courts in interpreting a regulation is . . .

what the regulation means.” Mortgage Bankers, 575 U. S., 

at ___ (opinion of THOMAS, 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 legal 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.