Scenic America, Inc. v. Department of , 199 L. Ed. 2d 271 ( 2017 )

Cite as: 583 U. S. ____ (2017) 1
Statement of GORSUCH, J.
SUPREME COURT OF THE UNITED STATES
SCENIC AMERICA, INC. v. DEPARTMENT
OF TRANSPORTATION, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
No. 16–739. Decided October 16, 2017
The petition for a writ of certiorari is denied.
Statement of JUSTICE GORSUCH, with whom THE CHIEF
JUSTICE and JUSTICE ALITO join, respecting the denial of
certiorari.
Say an administrative agency contracts with an outside
party. Later, the two sides wind up disagreeing over the
meaning of an ambiguous term in their agreement. How
should courts resolve the dispute? Usually, of course,
judges look to the tested and pretty ancient rules of con-
tract construction. For example, we often resolve contrac-
tual ambiguities against the party who wrote the agree-
ment, in part on the theory that the drafter might have
avoided the dispute by picking clearer terms. Sometimes,
too, we consider testimony from the participants or proof
about industry custom to help deduce the contested term’s
meaning. But in relatively recent times some courts have
sought to displace familiar rules like these in favor of a
new one, suggesting that an administrative agency’s
interpretation of an ambiguous contractual term should
always prevail—at least so long as the agency’s in-
terpretation falls within a (generously defined) zone of
“reasonableness.”
Of course, courts sometimes defer to an agency’s inter-
pretations of statutory law under Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837,
2 SCENIC AMERICA, INC. v. DEPARTMENT
OF TRANSPORTATION
Statement of GORSUCH, J.
866 (1984), and its progeny. But whatever one thinks of
that practice in statutory interpretation cases, it seems
quite another thing to suggest that the doctrine (or some-
thing like it) should displace the traditional rules of con-
tract interpretation too.
Indeed, there’s a disagreement among the circuits on
this very question. The court in this case agreed to defer
to an agency’s interpretation of a disputed contractual
term. But other courts have rejected much the same sort
of invitation. See, e.g., Muratore v. Office of Personnel
Management, 222 F. 3d 918, 921 (CA11 2000) (recognizing
split); Koch Gateway Pipeline Co. v. FERC, 136 F. 3d 810,
814, n. 10 (CADC 1998) (same); Mid-Louisiana Gas Co. v.
FERC, 780 F. 2d 1238, 1243 (CA5 1986); Meadow Green-
Wildcat Corp. v. Hathaway, 936 F. 2d 601, 604–605 (CA1
1991) (Breyer, C. J.) (declining to apply Chevron deference
to “agency’s interpretation of a contract that it makes with
an outside party”).
Whether Chevron-type deference warrants a place in the
canons of contract interpretation is surely open to dispute.
For example, Chevron deference is often defended on the
ground that statutory ambiguities reflect a kind of implicit
decision by Congress to delegate lawmaking power to the
agency to handle the problem on its own. But even assum-
ing (without granting) the accuracy and propriety of that
much, what’s the case for supposing that Congress implic-
itly delegates to agencies the power to adjudicate their
own contractual disputes too? Especially when independ-
ent judges in our legal order have traditionally performed
just that job? Some defend Chevron deference in statutory
interpretation cases on the theory that agencies are tech-
nical experts in the fields they are charged with regulat-
ing. But contracts usually represent compromises be-
tween two or more parties. And is it reasonable to
suppose that one side to a compromise always has more
expert insight into its meaning? Sometimes Chevron is
Cite as: 583 U. S. ____ (2017) 3
Statement of GORSUCH, J.
promoted on the premise that agencies have the public
interest at heart when interpreting statutory texts. But
does that logic extend with equal force to contract disputes
where the contending parties are at least usually a little
self-interested? See generally Armstrong, Chevron Defer-
ence and Agency Self-Interest, 13 Cornell J. L. & Pub.
Pol’y 203 (2004). And, for that matter, aren’t our tradi-
tional rules of contract interpretation, at least at some
level of generality, themselves all about promoting the
public interest?
These are but a few of the questions posed by this case.
No doubt good arguments might be presented on both
sides. No doubt, too, the questions presented here are
important ones. At the same time, this particular case
also comes with some rather less significant and consider-
ably more factbound questions. Questions that would, I
fear, only complicate our effort to reach the heart of the
matter, for these attendant questions include “difficult
and close” jurisdictional issues that would have to be
settled first. 983 F. Supp. 2d 170, 173 (DDC 2013). In
this light, I am persuaded that the proper course is to
deny certiorari in this particular case even though the
issues lying at its core are surely worthy of consideration
in a case burdened with fewer antecedent and factbound
questions.