U.S. Supreme Court declines case related to contract for housing at Malmstrom AFB

Last week, the U.S. Supreme Court declined to consider an appeal from Garco Construction Inc. over a 2006 contract for housing construction at Malmstrom Air Force Base.

The company hired a subcontractor, James Talcott Construction, and the subcontractor began having workers denied access due to criminal records.

Garco argued that base officials changed their policy after the contract was issued, but multiple courts deferred to the base’s interpretation of its access policy under Auer v. Robbins.

Justice Clarence Thomas wrote the dissenting opinion for denying the case. He and Justice Neil Gorsuch would have accepted the case to consider whether the Auer decision, as well as Bowles v. Seminole Rock and Sand Co., should be overruled.

Those cases require courts to give “controlling weight” to an agency’s interpretation of its own regulations, Thomas wrote.

“This would have been an ideal case to reconsider Seminole Rock deference, as it illustrates the problems that the doctrine creates,” Thomas wrote. “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.'”

Last year, the U.S. Court of Appeals for the Federal Circuit found in favor of the government based on the base’s policy at the time of the contract indicating access for contractors would be permitted on a case by case basis if unfavorable information was found in the check for “wants and warrants” which the Air Force testified was a background check.

According to the appeals court decision, testimony from Talcott during the relevant time period supported the Air Force’s interpretation and meeting minutes from around the time Talcott executed the subcontract with Garco stated “names will be sent to dispatch for background checks…No one with outstanding warrants, felony convictions, or on probation will be allowed on base.”

In his dissenting opinion, Thomas wrote that the military is better than courts when it comes to deciding tactics and security, but “it is no better equipped to read legal texts. Because this Court has passed up another opportunity to remedy ‘precisely the accumulation of governmental powers that the Framers warned against,’ I respectfully dissent from the denial of certiorari.”