[1] SUPREME COURT OF THE UNITED STATES

[2] ANTHONY LEO STUTSON  v.  UNITED STATES

[4] On Petition for Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit.

[5] No. 94-8988.

[6] Decided January 8, 1996

[7] Per Curiam.

[8] Our per curiam opinion issued today in a civil case, Lawrence v.
Chater, No. 94-9323, contains a general discussion of the considerations
which properly influence this Court in deciding whether to grant a
petition for certiorari, vacate the judgement below, and remand the case
(GVR) for further consideration in light of potentially pertinent
matters which it appears that the lower court may not have considered.
Here, we apply that analysis to a criminal case, again finding that the
particularities of the case before us merit a GVR.

[9] Stutson, the petitioner in this case, is currently serving a
federal prison sentence of 292 months for cocaine possession. He has
had no appellate review of his legal arguments against conviction and
sentence. The District Court held that his appeal was untimely and that
the untimeliness was not the result of "excusable neglect" within the
meaning of Rule 4(b) of the Federal Rules of Appellate Procedure,
because his lawyer's office mailed his notice of appeal so that it
arrived one working day late for the 10-day deadline, and at the Court
of Appeals, when it should have been sent to the District Court. The
District Court's opinion did not advert to our decision in Pioneer
Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.
S. 380 (1993), rendered one day before Stutson's brief was due in the
District Court and not cited in the briefs before that court. In
Pioneer, we held that a party could in some circumstances rely on his
attorney's inadvertent failure to file a proof of claim in a timely
manner in bankruptcy proceedings as "excusable neglect" under the
bankruptcy rules.

[10] Stutson appealed the District Court's ruling. In their briefs
to the Court of Appeals for the Eleventh Circuit, the parties disputed
the applicability of Pioneer's liberal understanding of "excusable
neglect" to the Rule 4(b) criminal appeal context, the Government
contending that it applied only in bankruptcy cases. The Court of
Appeals affirmed the District Court and dismissed Stutson's appeal
without hearing oral argument or writing an opinion. Now, in his
response to Stutson's petition for certiorari, the Solicitor General has
reversed the Government's position. This change of position follows the
unanimous view of the six Courts of Appeals that, unlike the Eleventh
Circuit in this case, have expressly addressed this new and important
issue, and have held that the Pioneer standard applies in Rule 4 cases.
See United States v. Clark, 51 F. 3d 42, 44 (CA5 1995) (Rule 4(b));
United States v. Hooper, 9 F. 3d 257, 259 (CA2 1993) (same); Chanute v.
Williams Natural Gas Co., 31 F. 3d 1041, 1045-1046 (CA10 1994) (Rule
4(a)(5)), cert. denied, 513 U. S. ___ (1995); Fink v. Union Central Life
Ins. Co., 65 F. 3d 722 (CA8 1995) (same); Reynolds v. Wagner, 55 F. 3d
1426, 1429 (CA9) (same), cert. denied, 516 U. S. ___ (1995);
Virella-Nieves v. Briggs & Stratton Corp., 53 F. 3d 451, 454, n. 3 (CA1
1995) (same).*footnote 1

[11] In sum, this is a case where (1) the prevailing party below, the
Government, has now repudiated the legal position that it advanced
below; (2) the only opinion below did not consider the import of a
recent Supreme Court precedent which both parties now agree applies; (3)
the Court of Appeals summarily affirmed that decision; (4) all six
Courts of Appeals that have addressed the applicability of the Supreme
Court decision that the District Court did not apply in this case have
concluded that it applies to Rule 4 cases; and (5) the petitioner is in
jail having, through no fault of his own, had no plenary consideration
of his appeal. While "we `should [not] mechanically accept any
suggestion from the Solicitor General that a decision rendered in favor
of the Government by a United States Court of Appeals was in error,' "
Lawrence, ante, at 7 (quoting Mariscal v. United States, 449 U. S. 405,
406 (1981) (Rehnquist, J., dissenting)), this exceptional combination of
circumstances presents ample justification for a GVR order. It appears
to us that there is at least a reasonable probability that the Court of
Appeals will reach a different conclusion on remand, and the equities
clearly favor a GVR order.

[12] If the Court of Appeals here, in its summary affirmance, did not
rely on the Government's primary argument and the lower court's basic
premise-that Pioneer did not apply-it does not seem to us that we place
an excessive burden on it, relative to Stutson's liberty and due process
interests, by inviting it to clarify its ambiguous ruling. A contrary
approach would risk effectively immunizing summary dispositions by
Courts of Appeals from our review, since it is rare that their basis for
decision is entirely unambiguous. See Lawrence, ante, at 7 (discussing
Netherland v. Tuggle, 515 U. S. ___ (Sept. 14, 1995)). If, on the other
hand, the Court of Appeals did not fully consider the applicability of
Pioneer, or if it concluded that Pioneer does not apply under Rule 4, it
might well conclude that while "the law is the law," post, at 9 (Scalia,
J., dissenting), the combination of the Government's change of position
and the subsequent contrary decisions of four other Courts of Appeals
shed light on the law applicable to this case. If it continues to
conclude that Pioneer does not apply, it will be useful for us to have
the benefit of its views so that we may resolve the resulting conflict
between the Circuits.

[13] Finally, it is not insignificant that this is a criminal case.
When a litigant is subject to the continuing coercive power of the
Government in the form of imprisonment, our legal traditions reflect a
certain solicitude for his rights, to which the important public
interests in judicial efficiency and finality must occasionally be
accommodated. We have previously refused to allow technicalities which
caused no prejudice to the prosecution to preclude a remand under 28 U.
S. C. Section(s) 2106 (1988 ed.) "in the interests of justice." Wood v.
Georgia, 450 U. S. 261, 265, n. 5 (1981). And procedural accommodations
to prisoners are a familiar aspect of our jurisprudence. See, e.g., 28
U. S. C. Section(s) 2255 (1988 ed.) (habeas review in spite of an
adverse final appellate decision); Evitts v. Lucey, 469 U. S. 387 (1985)
(relief for ineffective assistance of retained counsel on appeal);
Schacht v. United States, 398 U. S. 58, 63-64 (1970) (unlike in civil
cases, time limits for petitions for certiorari in criminal cases are
not jurisdictional). To the extent that the dissent suggests that it is
inconsistent with our "traditional practice," post, at 2 (Scalia, J.,
dissenting), to call upon a Court of Appeals to reconsider its dismissal
of a prisoner's appeal because his lawyer filed it one day late, in
circumstances where the Court of Appeals' decision may have been
premised on the assumption, unanimously rejected by other Courts of
Appeals, that more stringent rules as to filing deadlines apply to
prisoners than to creditors filing claims in a bankruptcy proceeding, we
must respectfully disagree.

[14] Judicial efficiency and finality are important values, and our
GVR power should not be exercised for "[m]ere convenience," cf. Adams v.
United States ex rel. McCann, 317 U. S. 269, 274 (1942). "But dry
formalism should not sterilize procedural resources which Congress has
made available to the federal courts." Ibid. In this case, as in
Lawrence v. Chater, a GVR order guarantees to the petitioner full and
fair consideration of his rights in light of all pertinent
considerations, and is also satisfactory to the Government. In this
case, as in Lawrence, a GVR order both promotes fairness and respects
the dignity of the Court of Appeals by enabling it to consider
potentially relevant decisions and arguments that were not previously
before it.

[15] Accordingly, the motion for leave to proceed in forma pauperis
and the petition for a writ of certiorari are granted. The judgement is
vacated and the case is remanded to the United States Court of Appeals
for the Eleventh Circuit for further consideration in light of Pioneer
Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.
S. 380 (1993).

[16] Justice Stevens, concurring.

[17] The Court persuasively explains why we have "the power to remand
to a lower federal court any case raising a federal issue which is
properly before us in our appellate capacity." No. 94-9323, at 3. That
conclusion comports with a primary characteristic--and, I believe,
virtue--of our discretionary authority to manage our certiorari docket:
our ability to apply the "totality-of-the-circumstances" approach that
Justice Scalia finds objectionable. Post, at 15. The Court's wise
disposition of these petitions falls squarely within the best traditions
of its administration of that docket. I therefore join the Court's
opinions.

[18] Chief Justice Rehnquist, concurring in No. 94-9323 and
dissenting in No. 94-8988.

[19] I agree, for the reasons given by Justice Scalia, that the Court
is mistaken in vacating the judgement in No. 94-8988, Stutson v. United
States. I also agree with much of the rest of Justice Scalia's dissent,
but I do not agree with that portion post, at 3-4, dealing with what he
describes as "situations calling forth the special deference owed to
state law and state courts in our system of federalism." Of the three
cases which he cites for this proposition, one, Missouri ex rel. Wabash
R. Co. v. Public Serv. Comm'n, 273 U. S. 126 (1927), came to this Court
on writ of error and therefore was required to be decided on the merits.
The second, State Farm Mut. Automobile Ins. Co. v. Duel, 324 U. S. 154
(1945), came to us on appeal from a State Supreme Court, and was thus
also required to be decided on the merits. The third, Huddleston v.
Dwyer, 322 U. S. 232 (1944), was a case in which certiorari had already
been granted, and the case argued on the merits. None of them, then,
involved a choice between denying certiorari, on the one hand, and
simply vacating the judgement of the lower court without any opinion, on
the other. Vacating a judgement without explanation when the alternative
is to simply deny certiorari involves at best the correction of
perceived error made by the lower courts. In this connection, we would
do well to bear in mind the admonition of Chief Justice William Howard
Taft, one of the architects of the Certiorari Act of 1925, as described
by his biographer:

[20] "It was vital, he said in opening his drive for the Judges'
bill, that cases before the Court be reduced without limiting the
function of pronouncing `the last word on every important issue under
the Constitution and the statutes of the United States.' A Supreme
Court, on the other hand, should not be a tribunal obligated to weigh
justice among contesting parties.

[21] `They have had all they have a right to claim,' Taft said, `when
they have had two courts in which to have adjudicated their
controversy.'" 2 H. Pringle, The Life and Times of William Howard Taft
997-998 (1939).

[22] I agree with the decision announced in the per curiam to vacate
the judgement of the Court of Appeals for the Fourth Circuit in No.
94-9323, Lawrence v. Chater. Whether or not the change of position by
the Social Security Administration is "cognizable," in the words of
Justice Scalia, post, at 11, it is perfectly reasonable to request the
Court of Appeals to answer that question in the first instance.

[23] Justice Scalia, with whom Justice Thomas joins, dissenting.

[24] I dissent because I believe that the dispositions in both No.
94-8988 and No. 94-9323 are improper extensions of our limited power to
vacate without first finding error below.

[25] It sometimes occurs that, after having considered the lower
court decision and found error, an appellate court merely reverses or
vacates and then remands-that is, it sets the judgement aside and sends
the case back to the lower court for further proceedings, rather than
entering or directing entry of judgement for the appellant or petitioner.
That is the appropriate course whenever the finding of error does not
automatically entitle the appellant or petitioner to judgment, and the
appellate court cannot conduct (or chooses not to conduct) the further
inquiry necessary to resolve the questions remaining in the litigation.
Our books are full of such cases, from Glass v. Sloop Betsey, 3 Dall. 6
(1794), and Clarke v. Russel, 3 Dall. 415 (1799), to Vernonia School
Dist. 47J v. Acton, 515 U. S. ___ (1995), and Tuggle v. Netherland, 516
U. S. ___ (1995).

[26] What is at issue here, however, is a different sort of creature,
which might be called "no-fault V&R": vacation of a judgement and remand
without any determination of error in the judgement below. In our
discretionary certiorari system of review, such an order has acquired
the acronym "GVR"-for the Court grants certiorari, vacates the judgment
below, and remands for further proceedings.*footnote 2 The question presented
by today's cases is whether there is any limitation (other than the
mandate "do what is fair") upon this practice. The Court's per curiam
opinions answer "no"; I disagree.

[27] Title 28 U. S. C. Section(s) 2106 provides that "[t]he Supreme
Court or any other court of appellate jurisdiction may affirm, modify,
vacate, set aside or reverse any judgment, decree, or order of a court
lawfully brought before it for review, and may remand the cause and
direct the entry of such appropriate judgment, decree, or order, or
require such further proceedings to be had as may be just under the
circumstances." This facially unlimited statutory text is subject to the
implicit limitations imposed by traditional practice and by the nature
of the appellate system created by the Constitution and laws of the
United States. The inferior federal courts (to say nothing of state
courts) are not the creatures and agents of this body-as are Masters,
whose work we may reject and send back for redoing at our own pleasure.
Inferior courts are separately authorized in the Constitution, see Art.
I, Section(s) 8; Art. III, Section(s) 1, created by Acts of Congress,
see, e.g., Judiciary Act of 1789, 1 Stat. 73; Evarts Act, Act of Mar. 3,
1891, 26 Stat. 826, and staffed by judges whose manner of appointment
and tenure of office are the same as our own, see U. S. Const., Art. II,
Section(s) 2; Art. III, Section(s) 1; 28 U. S. C. Section(s) 44, 133,
134. Despite the unqualified language of Section(s) 2106, we cannot,
for example, "reverse" a judgement of one of these courts "and direct the
entry" of a different judgement whenever we disagree with what has been
done, but only when we can identify a controlling error of law. And I
think we cannot "vacate" and "remand" in the circumstances here.

[28] The Court today seeks to portray our "no-fault V&R" practice as
traditionally covering a kaleidoscopic diversity of situations. See No.
94-9323, at 3-4. That is in my view a misportrayal; the practice has
always been limited to a few discrete categories of cases. It began,
apparently, in situations calling forth the special deference owed to
state law and state courts in our system of federalism. In Missouri ex
rel. Wabash R. Co. v. Public Serv. Comm'n, 273 U. S. 126 (1927), for
example, rather than find error on the basis of the federal
constitutional claims raised, this Court set aside the judgement of the
Missouri Supreme Court and remanded the case to that court for further
proceedings so that it could consider the meaning and effect of a state
statute that had been enacted after its judgement had been entered. We
reasoned that "[w]hile this Court may decide these [state-law]
questions, it is not obliged to do so, and in view of their nature, we
deem it appropriate to refer the determination to the state court." Id.,
at 131. In other words, we left it to the state court to decide the
effect of the intervening event, rather than follow our usual practice
of deciding that question for ourselves, see, e.g., Steamship Co. v.
Joliffe, 2 Wall. 450, 456-458 (1865). See generally United States v.
Schooner Peggy, 1 Cranch 103, 110 (1801) ("if, subsequent to the
judgment [entered by a lower court], and before the decision of the
appellate court, a law intervenes and positively changes the rule which
governs, the law must be obeyed, or its obligation denied"). Later
cases took the same deferential approach to state courts when the
intervening event consisted of one of our own opinions. See, e.g.,
State Tax Comm'n v. Van Cott, 306 U. S. 511 (1939). By 1945, we could
state that it was "[a] customary procedure" for the Court "to vacate the
judgment of [a] state court where there has been a supervening event
since its rendition which alters the basis upon which the judgment
rests, and to remand the case so that the court from which it came might
reconsider the question in light of the changed circumstances." State
Farm Mut. Automobile Ins. Co. v. Duel, 324 U. S. 154, 161 (1945).
Similarly, where a federal court of appeals' decision on a point of
state law had been cast in doubt by an intervening state supreme court
decision, it became our practice to vacate and remand so that the
question could be decided by judges "familiar with the intricacies and
trends of local law and practice." Huddleston v. Dwyer, 322 U. S. 232,
237 (1944).

[29] The "intervening event" branch of our "no-fault V&R" practice
has been extended to the seemingly analogous situation (though not one
implicating the special needs of federalism) in which an intervening
event (ordinarily a postjudgment decision of this Court) has cast doubt
on the judgement rendered by a lower federal court or a state court
concerning a federal question. See, e.g., Amer v. Superior Court of
Cal., County of Los Angeles, 334 U. S. 813 (1948); Goldbaum v. United
States, 348 U. S. 905 (1955); Henry v. City of Rock Hill, 376 U. S. 776
(1964). This is undoubtedly the largest category of "GVRs" that now
exists. See, e.g., Exxon Corp. v. Youell, 516 U. S. ___ (1995); Kapoor
v. United States, 516 U. S. ___ (1995); Edmond v. United States, 516 U.
S. ___ (1995); Pacesetter Constr. Co. v. Carpenters 46 Northern Cal.
Ctys. Conference Bd., 516 U. S. ___ (1995); Doctor's Assocs., Inc. v.
Casarotto, 515 U. S. ___ (1995); Calamia v. Singletary, 514 U. S. ___
(1995). We regularly hold cases that involve the same issue as a case
on which certiorari has been granted and plenary review is being
conducted in order that (if appropriate) they may be "GVR'd" when the
case is decided. More recently, we have indulged in the practice of
vacating and remanding in light of a decision of ours that preceded the
judgment in question, but by so little time that the lower court might
have been unaware of it. See, e.g., Grier v. United States, 419 U. S.
989 (1974). These applications of "no-fault V&R" have nothing to do
with federalism, but they are appropriate to preserve the operational
premise of a multitiered judicial system (viz., that lower courts will
have the first opportunity to apply the governing law to the facts) and
to avoid the unseemliness of holding judgments to be in error on the
basis of law that did not exist when the judgments were rendered below.
They thus serve the interests of efficiency and of concern for the
dignity of state and lower federal tribunals.

[30] An entirely separate branch of our "no-fault V&R" jurisprudence,
but again one that originates in the special needs of federalism,
pertains to decisions of state supreme courts that are ambiguous as to
whether they rest on state-law or federal-law grounds. Rather than run
the risk of improperly reversing a judgement based on state law, we
adopted the practice of vacating and remanding so that the state court
could make the reasons for its judgement clear. See, e.g., Minnesota v.
National Tea Co., 309 U. S. 551 (1940); Department of Mental Hygiene of
Cal. v. Kirchner, 380 U. S. 194 (1965).*footnote 3

[31] We have "GVR'd" with increasing frequency in recent years on the
basis of suggestions or representations made by the Solicitor General.
Some of these cases are nothing more than examples of the
"intervening-event GVR" discussed above, the Solicitor General pointing
out that a case or statute has intervened since the judgement below.
See, e.g., Woods v. Durr, 336 U. S. 941 (1949); Altiere v. United
States, 382 U. S. 367 (1966). We have also announced "no-fault GVRs,"
however, when there has been no intervening development other than the
Solicitor General's confession of error in the judgment. That is a
relatively new practice. As recently as 1942 a unanimous Court (two
Justices not participating) wrote the following:

[32] "The public trust reposed in the law enforcement officers of the
Government requires that they be quick to confess error when, in their
opinion, a miscarriage of justice may result from their remaining
silent. But such a confession does not relieve this Court of the
performance of the judicial function. The considered judgement of the
law enforcement officers that reversible error has been committed is
entitled to great weight, but our judicial obligations compel us to
examine independently the errors confessed. . . . Furthermore, our
judgments are precedents, and the proper administration of the criminal
law cannot be left merely to the stipulation of the parties . . . ."
Young v. United States, 315 U. S. 257, 258-259 (1942).

[33] Cf. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513
U. S. ___ (1994) (setting aside of a valid judicial judgement should not
turn upon agreement of the parties). Many of the early "GVRs" based
upon the Government's confession of error appear not to have been
"no-fault V&Rs" at all, but rather summary decisions on the merits, with
remand for further proceedings. See, e.g., Chiarella v. United States,
341 U. S. 946 (1951) ("[u]pon consideration of the record and the
confession of error by the Solicitor General," remanding to the District
Court for resentencing) (emphasis added); Penner v. United States, 399
U. S. 522 (1970) ("[o]n the basis of a confession of error by the
Solicitor General and of an independent review of the record," remanding
to the District Court "with instructions to dismiss the indictment").

[34] Our recent practice, however, has been to remand in light of the
confession of error without determining the merits, leaving it to the
lower court to decide if the confession is correct. As late as 1981,
the current Chief Justice, joined by Justice White, objected to this
practice. See Mariscal v. United States, 449 U. S. 405, 407 (1981)
(Rehnquist, J., dissenting) ("I harbor serious doubt that our adversary
system of justice is well served by . . . routinely vacating judgments
which the Solicitor General questions without any independent
examination of the merits on our own"). I agree with that position. The
practice is by now well entrenched, however. See, e.g., Reed v. United
States, 510 U. S. ___ (1994); Ramirez v. United States, 510 U. S. ___
(1994). It may be considered a separate category of "no-fault V&R."
Finally (and most questionably) we have in very recent years "GVR'd"
where the Solicitor General has not conceded error in the judgment
below, but has merely acknowledged that the ground, or one of the
grounds, on which the lower court relied was mistaken. See, e.g.,
Alvarado v. United States, 497 U. S. 543 (1990); Chappell v. United
States, 494 U. S. 1075 (1990). That is in my view a mistaken practice,
since we should not assume that a Court of Appeals has adopted a legal
position only because the Government supported it. Four Justices now
sitting on the Court have disapproved this sort of "GVR." See Alvarado,
supra, at 545 (Rehnquist, C. J., joined by O'Connor, Scalia, and
Kennedy, JJ., dissenting).*footnote 4

[35] Today's cases come within none of these categories of "no-fault
V&R," not even the questionable last one. In No. 94-8988, the decision
"in light of" which we vacate the judgement and remand, Pioneer
Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.
S. 380 (1993), had been on the books for well more than a year before
the Eleventh Circuit announced the judgement under review, and for almost
two years before that court denied rehearing. Moreover, the parties
specifically argued to the Court of Appeals the question whether Pioneer
established the standard applicable to petitioner's claim of "excusable
neglect" under Federal Rule of Appellate Procedure 4(b), with the United
States disagreeing with petitioner and taking the position that Pioneer
was not controlling. The Eleventh Circuit ruled against petitioner on
the merits of his claim; its one-sentence order contained neither a
reference to Pioneer nor any suggestion that the court viewed the case
as turning on which party's proffered standard was applied.

[36] The United States has now revised its legal position and--though
it makes no suggestion that the Court of Appeals' judgement was
incorrect--is of the view that Pioneer does establish the standard
governing petitioner's claim. But the fact that the party who won below
repudiates on certiorari its position on a particular point of law does
not give rise to any "intervening," postjudgment factor that must be
considered. The law is the law, whatever the parties, including the
United States, may have argued. As described above, we have sometimes
"GVR'd" where the Government has, while still supporting the judgement in
its favor, conceded the error of a legal point on which the lower court
explicitly relied. As I have explained, see supra, at 7-8, in my view
even that practice denies valid judgments the respect to which they are
entitled. But the "GVR" in the present case goes still further. We do
not know in this case whether the Eleventh Circuit even agreed with the
Government's position that has now been repudiated; for all we know, the
court applied Pioneer and found against petitioner under that standard.
The judgement is declared invalid because the Eleventh Circuit might (or
might not) have relied on a standard (non-Pioneer) that might (or might
not) be wrong, that might (or might not) have affected the outcome, and
that the Eleventh Circuit might (or might not) abandon (whether or not
it is wrong) because the Government has now abandoned it. This seems to
me beyond all reason.

[37] The Court justifies its setting aside of the judgement on the
ground that "we [do not] place an excessive burden on [the Eleventh
Circuit], relative to [petitioner's] liberty and due process interests,
by inviting it to clarify its ambiguous ruling." No. 94-8988, at 3.
Vacating for ambiguity may be justifiable, as I have noted, when the
ambiguity calls into question our very power to take and decide the
case, see supra, at 5, and n. 2. But where that power is (as it is
here) beyond doubt, it seems to me quite improper to vacate merely in
order to get a better idea of whether the case is "worth" granting full
review. If this is appropriate with respect to court of appeals'
summary dispositions of criminal cases, I see no reason why it is not
appropriate with respect to criminal dispositions accompanied by
opinions as well. Or, for that matter, why it is not appropriate for
civil cases. "GVR'd for clarification of _____" should become a common
form of order, drastically altering the role of this Court. In my view
we have no power to make such a tutelary remand, as to a schoolboy made
to do his homework again.*footnote 5 The Court insists that declining to
remand for clarification would risk "immunizing summary dispositions
. . . from our review," No. 94-8988, at 3. That is not so. It is fully
within our power to review this case, and any other case summarily
decided below, by granting certiorari and proceeding to consider the
merits; or indeed, where the circumstances warrant, to summarily
reverse. Cf. Hellman, "Granted, Vacated, and Remanded"-Shedding Light
on a Dark Corner of Supreme Court Practice, 67 Judicature 389, 391-392
(1984) (noting that in the 1970's as the Court's "GVR" practice
"increased far beyond what it had been in earlier years," its use of
summary reversal based on intervening precedents decreased
dramatically).

[38] In No. 94-9323, the Court again "GVRs" because the Government
has changed a legal position: the Commissioner of Social Security
informs us that she now agrees with petitioner on a preliminary point of
law that the Court of Appeals found in the Government's favor. And here
again, respondent does not concede that the judgement below was in error,
for she "ha[s] not . . . reached a firm conclusion" as to her position
on the subsequent point of law that will (if her recantation on the
preliminary point is accepted) control the outcome of the case. Brief
for Respondent in No. 94-9323, p. 13.*footnote 6 There is, however, a special
factor in this second case: respondent is an agency head, whose view on
the legal point in question is in some circumstances entitled to
deference, see Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837 (1984). If it were clear that respondent's
change in position were entitled to deference, I would have no problem
with the "GVR"; the new position would then constitute an intervening
postjudgment factor whose effect the Court of Appeals should be allowed
to consider. But even if we allow deference to an agency view first
expressed in pending litigation (as some think we should not, see
Anthony, Which Agency Interpretations Should Bind Citizens and the
Courts?, 7 Yale J. Reg. 1, 60-61 (1990); cf. Merrill, Judicial Deference
to Executive Precedent, 101 Yale L. J. 969, 1023 (1992)), surely a
decent concern for those litigating against the Government and for our
lower court judges should induce us to disregard, for Chevron purposes,
a litigating position first expressed at the certiorari stage. The
United States is the most frequent, and hence the most calculating, of
our litigants. If we accord deference in the circumstances here, we can
expect the Government to take full advantage of the opportunity to wash
out, on certiorari, disadvantageous positions it has embraced below; and
we can expect it to focus less of its energy upon getting its position
"right" in the Courts of Appeals.

[39] The Court, however, thinks it unnecessary to decide the
deference question. It is enough, as the Court sees it, that its
summary review has led it to "believe that [the] agency interpretation
is reasonably probably entitled to deference and potentially
determinative." No. 94-9323, at 9. I do not agree. It seems to me our
"intervening-event GVRs" should not be extended to the situation where
(1) the intervening event consists of a party's going back on what it
argued to the court of appeals, and (2) it is not even certain that the
change in position is legally cognizable. That seems to me to accord
inadequate respect to the work of our colleagues below. Moreover, it is
not clear to me that the question before us (should an agency change of
position at the certiorari stage be accorded deference?) can even be
reached by the Court of Appeals. Surely we do not expect the Court of
Appeals to declare our vacation and remand invalid. Thus, the Court of
Appeals will have before it the somewhat different question whether the
agency change of position before it is entitled to deference. I suppose
it may conclude that, since a change of position on certiorari is not
entitled to deference, a change of position on a remand triggered by
change of position on certiorari is not entitled to deference-but that
would assuredly be a convoluted holding. The question of what is
permissible on certiorari seems to me peculiarly within the domain of
this Court. Since we are in doubt on the deference point in the present
case, we should either deny the petition, or grant it and have the
deference point argued.

[40] The Court's failure to comprehend why it should make any
difference that the Government's changed litigating position may not be
entitled to deference, see No. 94-9323, at 9, displays a lamentable lack
of appreciation of the concept of adding insult to injury. It is
disrespectful enough of a lower court to set its considered judgment
aside because the Government has altered the playing field on appeal; it
is downright insulting to do so when the Government's bait-and-switch
performance has not for a certainty altered any factor relevant to the
decision. In that situation, at least, we should let the Government
live with the consequences of its fickleness or inattention. The Court
claims that it would "defeat the purpose of GVR'ing" to determine the
deference issue on the merits, since that issue is "based on a
circumstance . . . that will not be present in any other case brought
under the statute at issue." Ibid. That is true enough (barring the
unlikely event that the Government in a later case under this very
statute again switches its position at the certiorari stage). But the
issue of whether Chevron deference should be accorded to a
certiorari-stage switch of litigating position is not at all unique to
the individual case or bound up with the underlying statute. It always
arises, of course, in an individual case involving a particular statute,
as do most questions of law. But the issue itself is thoroughly
generalizable, and of general importance. In any event, I do not urge
that we determine the deference issue on the merits; my vote in these
cases is to deny the petitions. Finally, I must remark upon the Court's
assertion that we issued "just such a GVR order last Term, without
recorded dissent," No. 94-9323, at 10, citing Schmidt v. Espy, 513 U. S.
___ (1994): It is not customary, but quite rare, to record dissents from
grants of certiorari, including "GVRs." It would be wrong to conclude
from the unsigned order in Schmidt that the vote to "GVR" was unanimous,
or even close to unanimous. Thus, Schmidt does not demonstrate that
bait-and-switch-deference "GVRs" are an accepted practice; but the fact
that Schmidt was apparently the first-ever such "GVR," combined with the
fact that the Government is back one Term later for another helping,
demonstrates the accuracy of my prediction that the Solicitor General
will be quick to take advantage of this new indulgence.

[41] What is more momentous than the Court's judgments in the
particular cases before us-each of which extends our prior practice just
a little bit-is its expansive expression of the authority that supports
those judgments. It acknowledges, to begin with, no constitutional
limitation on our power to vacate lower court orders properly brought
before us. No. 94-9323, at 3. This presumably means that the
constitutional grant of "appellate Jurisdiction" over "Cases . . .
arising under [the] Constitution [and] Laws of the United States," Art.
III, Section(s) 2, empowers the Court to vacate a state supreme court
judgment, and remand the case, because it finds the opinion, though
arguably correct, incomplete and unworkmanlike; or because it observes
that there has been a postjudgment change in the personnel of the state
supreme court, and wishes to give the new state justices a shot at the
case. I think that is not so. When the Constitution divides our
jurisdiction into "original Jurisdiction" and "appellate Jurisdiction,"
I think it conveys, with respect to the latter, the traditional
accoutrements of appellate power. There doubtless is room for some
innovation, particularly such as may be necessary to adapt to a novel
system of federalism; but the innovation cannot be limitless without
altering the nature of the power conferred.

[42] Not only does the Court reject any constitutional limitation
upon its power to vacate; it is unwilling to submit to any prudential
constraint as well. Even while acknowledging the potential for
"unfair[ness] or manipulat[ion]" and professing to agree that "our GVR
power should be exercised sparingly," No. 94-9323, at 4, 10, the Court
commits to no standard that will control that power, other than that
cloak for all excesses, "the equities," id., at 4; see id., at 10,
11-12; No. 94-8988, at 3. We may, as the Court now pronounces, set
aside valid judgments not merely when they are wrong, not merely when
intervening events require that someone (either the lower court or we)
reconsider them on new facts or under new legal criteria, not merely
when it is ambiguous whether we have power to review them, not merely
when the United States concedes that the judgement below (or one of the
points of law relied upon below, or even one of the points of law
possibly relied upon below) is wrong; but whenever there is "a
reasonable probability that the decision below rests upon a premise that
the lower court would reject if given the opportunity for further
consideration." No. 94-9323, at 4. The power to "revis[e] and
correc[t]" for error, Marbury v. Madison, 1 Cranch 137, 175 (1803), has
become a power to void for suspicion. Comparing the modest origins of
the Court's "no-fault V&R" policy with today's expansive d‚nouement
should make even the most Pollyannish reformer believe in camel's noses,
wedges, and slippery slopes.

[43] The Court justifies its approach on the ground that it
"alleviates the potential for unequal treatment that is inherent in our
inability to grant plenary review of all pending cases raising similar
issues." No. 94-9323, at 4 (internal quotation marks omitted). I do
not see how it can promote equal treatment to announce a practice that
we cannot possibly pursue in every case. If we were to plumb the
"equities" and ponder the "errors" for all the petitions that come
before us-if we were to conduct, for example, in all cases involving
summary decisions, today's balancing of the "burden" to the Court of
Appeals against the litigant's "interests" in having clarification of
the ruling, see No. 94-8988, at 3, or today's calculation of "the
overall probabilities and equities," No. 94-9323, at 10-we would have no
time left for the cases we grant to consider on the merits. Of course
we do not purport to conduct such inquiries, not even the basic one of
whether the decision below is probably in "error"-which is why we insist
that our denial of certiorari does not suggest a view on the merits,
see, e.g., Teague v. Lane, 489 U. S. 288, 296 (1989); Singleton v.
Commissioner, 439 U. S. 942 (1978) (Stevens, J., respecting the denial
of the petition for writ of certiorari). Moreover, even if we tried
applying the Court's "totality-of-the-circumstances" evaluation to all
the petitions coming before us, we would be unlikely to achieve equal
treatment. Such a plastic criterion is liable to produce inconsistent
results in any series of decisions; it is virtually guaranteed to do so
in a series of decisions made without benefit of adversary presentation
(whether we should "GVR" is rarely briefed, much less argued-as it has
not been here) and announced without accompaniment of a judicial opinion
(we almost never give reasons as the Court has done today). The need to
afford equal treatment argues precisely against the
"totality-of-the-circumstances" approach embraced by the Court, and in
favor of a more modest but standardized "GVR" practice.

[44] Henceforth, I shall vote for an order granting certiorari,
vacating the judgement below without determination of the merits, and
remanding for further consideration, only (1) where an intervening
factor has arisen that has a legal bearing upon the decision, (2) where,
in a context not governed by Michigan v. Long, 463 U. S. 1032 (1983),
clarification of the opinion below is needed to assure our jurisdiction,
and (3) (in acknowledgment of established practice, though not
necessarily in agreement with its validity) where the respondent or
appellee confesses error in the judgement below. (I shall not
necessarily note my dissent from "GVRs" where those conditions do not
exist.) As I have discussed, neither of the present cases meets these
standards. Accordingly, I respectfully dissent from today's orders and
would deny both petitions.

***** BEGIN FOOTNOTE(S) HERE *****

[45] *footnote 1 Clark, Fink, Reynolds and Virella-Nieves were decided after
the Court of Appeals in this case denied Stutson's petition for
rehearing. Chanute and Hooper were decided after the District Court's
decision in this case but before that of the Court of Appeals.

[46] *footnote 2 I emphasize that what is at issue here is our power to set
aside a valid judgment-not, as Justice Stevens' concurrence would have
it, "our discretionary authority to manage our certiorari docket."
Ante, at 1. We do the latter by accepting or declining review. But
"[w]henever this Court grants certiorari and vacates a court of appeals
judgment in order to allow that court to reconsider its decision . . . ,
the Court is acting on the merits." Board of Trustees of Keene State
College v. Sweeney, 439 U. S. 24, 25-26 (1978) (Stevens, J., dissenting)
(emphasis added). Thus, today's orders go far beyond what Justice
Stevens now refers to as "administration of [our certiorari] docket."
Ante, at 1.

[47] *footnote 3 In Michigan v. Long, 463 U. S. 1032 (1983), we largely
supplanted this policy with the rule that state-court decisions
discussing federal law will be presumed to be based on federal law
unless the contrary is clear from the face of the opinion. Id., at
1037-1044; see also Arizona v. Evans, 514 U. S. ___, ___-___ (1995)
(reaffirming this approach). But cf. Capital Cities Media, Inc. v.
Toole, 466 U. S. 378 (1984) (post-Long decision vacating and remanding
for clarification of state supreme court decision rendered
withoutopinion).

[48] *footnote 4 The Court misdescribes my position when it states that I
would limit "GVRs" "based on confessions of error that do not purport to
concede the whole case" to "cases in which the confession of error
concerns a `legal point on which the lower court explicitly relied.'"
No. 94-9323, at 8 (quoting infra, at 9). Both the text above and the
sentence immediately following the phrase that the Court quotes from my
dissent, see infra, at 9, make my position clear. The line of
distinction I would draw-and the one long established in our practice-is
between a respondent's concession of error in the lower court's judgment
and a respondent's concession of error that goes not to the judgement but
merely to an aspect of the reasoning below or of respondent's argument
below.

[49] *footnote 5 Netherland v. Tuggle, 515 U. S. ___ (1995), upon which the
Court relies, see No. 94-9323, at 6-7, is not to the contrary. That was
not a "no-fault V&R," but a reversal of the lower court for abuse of
discretion in its entry of a stay order.

[50] *footnote 6 Because the Commissioner is not prepared to say that she
disagrees with petitioner as to the proper disposition of this case, it
is questionable whether any case or controversy subsists. Quite apart
from the other difficulties with the course the Court has chosen, it
seems to me we should not permit the Commissioner to trouble the Fourth
Circuit again until she makes up her mind on this issue.

***** END FOOTNOTE(S) HERE *****

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19960108

1996.SCT.11