GARCO CONSTRUCTION, INC.
ROBERT M. SPEER, ACTING SECRETARY OF THE ARMY
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
petition for a writ of certiorari is denied. Justice
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, dissenting
from the denial of certiorari.
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).
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 question.
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).
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).
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).
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.).
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 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."
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 ...