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

T HOMAS
, 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.

J USTICE T HOMAS , 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 appro

priate case. See Mortgage Bankers , 575 U. S., at ___–___ (A LITO , J., concurring) (slip op., at 1–2); id., at ___ (Scalia, J., concurring in judgment) (slip op., at 5); id., at ___ (T HOMAS , J., concurring in judgment) (slip op., at 1–2); Decker, 568 U. S.

, at ___–___ (R OBERTS , 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

T HOMAS
, 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 Semi

nole 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 T HOMAS , 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 inter

pretation of the regulatory scheme it enforces—an inter

pretation 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 regu latory scheme but also defies ordinary English. More broadly, by deferring to an agen

cy’s litigating position under the guise of Seminole Rock

, courts force regulated entities like petitioner here to “di

vine 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 idly3 Cite as: 578 U. S. ____ (2016)

T HOMAS
, 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.