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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 appropriate 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-
 

2 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 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 ___ (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 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 ___ 

(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 
Cite as: 578 U. S. ____ (2016) 3 

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.