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

                      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 appro-
priate 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 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 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 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 regulatory 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 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.
