author: Justice Kennedy

text:
    BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al. v. ATCHISON, TOPEKA & SANTA FE RAILROAD CO. et al.
    No. 94-1592.
    Argued October 30, 1995
    Decided January 8, 1996

      Kennedy, J., delivered the opinion for a unanimous Court.

      Lawrence M. Mann argued the cause for petitioners. With him on the briefs were Harold A. Ross and Clinton J. Miller III.

      Malcolm L. Stewart argued the cause for the federal respondents. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Leonard Schaitman, John F. Daly, Paul M. Geier, and Daniel Carey Smith. Ronald M. Johnson argued the cause and filed a brief for respondents Atchison, Topeka and Santa Fe Railway Company et al.

        John H. Broadley, Donald B. Verrilli, Jr., Robert W. Blanchette, and James C. Schultz filed a brief for the Association of American Railroads as amicus curiae urging affirmance.

   Justice Kennedy

delivered the opinion of the Court.

We granted certiorari to resolve a division between two Courts of Appeals regarding the correct statutory classification, under the Hours of Service Act, 49 U. S. C. §21101 et seq., of the time that train employees spend waiting for transportation at the end of their shift.

I

Congress enacted the Hours of Service Act (HSA) in 1907. Hours of Service Act, ch. 2939, § 1,34 Stat. 1415. The HSA’s purpose is to promote railroad safety by limiting the number of hours a train crew may remain on duty and by requiring railroads to provide crew members with a certain number of off-duty hours for rest between shifts. Ibid.; Chicago & Alton R. Co. v. United States, 247 U. S. 197, 199 (1918). In particular, the HSA provides that train employees may not remain on duty for more than 12 consecutive hours, and, having worked for that period, must be given at least 10 consecutive hours off duty. 49 U. S. C. § 21103(a).

To comply with the HSA, railroads must schedule operations and crew assignments with some precision, for if operations require the crew to be on duty for more than 12 hours, the railroads may incur substantial penalties. The Federal Railroad Administration (FRA) administers the HSA, and it is authorized to impose a fine of between $500 and $10,000 for each violation of the statute. § 21303(a)(2). For each crew member on duty longer than the statutory maximum there is a separate violation. Missouri, K., & T. R. Co. of Tex. v. United States, 231 U. S. 112, 118-119 (1913); 48 CFR pt. 228, App. A, p. 244 (1994). The statute provides certain exceptions to the rules in cases of emergency. 49 U. S. C. § 21103(c).

At times, of course, a train cannot reach the scheduled crew change point, or even a convenient change point, within the 12 hours. To avoid violating the HSA, the railroad must stop the train so that a new crew can replace the first crew, now called the “outlawed crew.” Transportation of the new crew to the train and the outlawed crew back to the terminal is called “deadhead transportation.” The HSA provides different treatment for the time spent in deadhead transportation, depending on whether the transportation is taking a replacement crew to the train or taking the outlawed crew from the train. The statute provides that time spent in deadhead transportation to a duty assignment is time on duty, while time spent in deadhead transportation from a duty assignment to the place of final release is neither time on duty nor time off duty. § 21103(b)(4). Time that is neither on duty nor off duty is referred to in the industry as “limbo time.” At oral argument, the Court was advised that train employees are paid for limbo time.

We thus know how to treat the time the employee spends in the deadhead vehicle. The issue is how to classify the time the outlawed crew spends waiting for the deadhead transportation to arrive. Petitioners, the Brotherhood of Locomotive Engineers and the United Transportation Union, claim the waiting time is on-duty time that counts against the 12-hour limit. Save for a short-lived period when it changed its policy to acquiesce in a decision of the Court of Appeals for the Ninth Circuit that we shall recount, the FRA for many years has taken the contrary position. In its view, so long as crew members are not required to perform duties for the railroad while they wait, time spent waiting for deadhead transportation from a duty site is to be treated in the same way as the time in the deadhead transportation itself — that is, as limbo time. 58 Fed. Reg. 18163, 18164 (1993). The railroads, who are respondents along with the Secretary of Transportation, agree with the FRA’s position.

In 1990 petitioners brought suit in California and Oregon, challenging the FRA’s position. On appeal, the Court of Appeals for the Ninth Circuit held that the time spent waiting for deadhead transportation from a duty site is time on duty. The court concluded that the time was so defined before Congress amended the HSA in 1969 and that the 1969 amendments disclose no intent to change that result. United Transportation Union v. Skinner, 975 F. 2d 1421, 1426-1428 (1992).

For the sake of uniformity, the FRA decided to apply the Ninth Circuit’s interpretation of the HSA on a nationwide basis. It announced the policy change in an October 28, 1992, letter to Robert W. Blanchette, Vice President of the Association of American Railroads, App. 73, and later published notice in the Federal Register, 58 Fed. Reg. 18163 (1993). In response, nine major railroads instituted the present action, seeking direct review in the United States Court of Appeals for the Seventh Circuit of the FRA’s order changing its interpretation. A three-judge panel of the Seventh Circuit affirmed the FRA’s order, see Atchison, T & S. F. R. Co. v. Peña, 29 F. 3d 324 (1994), but that opinion was superseded when the Seventh Circuit took the case en banc, 44 F. 3d 437 (1994). The en banc court rejected the Ninth Circuit’s interpretation and held that time spent waiting for deadhead transportation is limbo time.

Because of the importance of uniform nationwide application of the HSA’s regulatory scheme, we granted certiorari. 515 U. S. 1141 (1995).

II

In determining how time spent waiting for deadhead transportation should be classified, we begin with the text and design of the statute. As first enacted, the HSA divided all time into two categories — -on duty and off duty — but it did not define either term. Congress amended the HSA in 1969, reducing the number of permissible on-duty hours and providing some specific rules for determining if a given period of time should be considered on duty or off duty. These statutory provisions are the controlling guide in the case before us, and are as follows:

“(1) Time on duty begins when the employee reports for duty and ends when the employee is finally released from duty.
“(2) Time the employee is engaged in or connected with the movement of a train is time on duty.
“(3) Time spent performing any other service for the railroad carrier during a 24-hour period in which the employee is engaged in or connected with the movement of a train is time on duty.
“(4) Time spent in deadhead transportation to a duty assignment is time on duty, but time spent in deadhead transportation from a duty assignment to the place of final release is neither time on duty nor time off duty.
“(5) An interim period available for rest at a place other than a designated terminal is time on duty.
“(6) An interim period available for less than 4 hours rest at a designated terminal is time on duty.
“(7) An interim period available for at least 4 hours rest at a place with suitable facilities for food and lodging is not time on duty when the employee is prevented from getting to the employee’s designated terminal by any of the following:
“(A) a casualty
“(B) a track obstruction
“(C) an act of God
“(D) a derailment or major equipment failure resulting from a cause that was unknown and unforeseeable to the railroad carrier or its officer or agent in charge of that employee when that employee left the designated terminal.” 49 U. S. C. §21103(b).

Although these provisions do not specify time spent waiting for deadhead transportation as a separate category, § 21103(b)(4) does classify the “time spent in deadhead transportation.” That phrase, as a matter of common usage, can be read to include the time spent waiting for the deadhead transportation, but we need not confine our examination to those words alone. When we consider the question in light of the purpose of the HSA and all the quoted provisions, we conclude that the time spent waiting for deadhead transportation is of the same character as the time spent in the deadhead transportation itself.

The purpose of the HSA is to promote the safe operation of trains, and the statutory classification must be understood in accord with that objective. The statute, in effect, makes the determination that a train employee who remains on duty for more than 12 consecutive hours will be too fatigued to operate a train in a safe manner. In consequence, the provisions delineate as on-duty time those hours which will contribute to an employee’s fatigue during his or her work assignment. In some instances, the relationship between the time at issue and the employee’s fatigue is apparent, for example, the command of § 21103(b)(2) that the “[t]ime the employee is engaged in or connected with the movement of a train is time on duty.”

The classification of other time periods is not quite as straightforward, but we think still apparent from the statutory design. What if a train employee is permitted to take a lengthy break between periods of work? If the train employee is not working at all during this time, is it time off duty? The statute answers the question by reference to the likelihood of employee fatigue in the ensuing period of work without the mandated rest interval. The statute specifies that an “interim period available for less than 4 hours rest at a designated terminal,” § 21103(b)(6), and an “interim period available for rest at a place other than a designated terminal,” § 21103(b)(5), are to be considered on-duty hours. It follows from the statutory scheme that these rest periods are not sufficient to alleviate fatigue.

The treatment of deadhead transportation follows the same scheme. Section 21103(b)(4) provides that “[t]ime spent in deadhead transportation to a duty assignment is time on duty, but time spent in deadhead transportation from a duty assignment to the place of final release is neither time on duty nor time off duty.” The distinction between transportation to a duty assignment and transportation from a duty assignment makes perfect sense, given the statute’s purpose of promoting train safety. Time spent deadheading to a duty site contributes to the fatigue that a train employee is likely to have during the 12-hour shift. By defining the time spent deadheading to a duty assignment as on-duty time, Congress ensured that an employee will not operate a train more than 12 hours after reporting for duty. The time employees spend deadheading from the duty site does not give rise to these safety concerns, for no matter how much time the employees must spend deadheading away from the duty site, they will still receive the requisite off-duty rest time once they reach the terminal and before beginning a new shift involving train operations.

The same reasoning applies to the time spent waiting for deadhead transportation. Time spent waiting for deadhead transportation to a duty site should be classified as on-duty time because, along with the time spent in the transportation itself, it contributes to employee fatigue during the work assignment. Time spent waiting for deadhead transportation away from a duty site does not cause the fatigue that implicates these safety concerns and so, like the deadhead transportation which the wait precedes, the waiting time must be deemed limbo time to effect the statutory design.

It is common ground, moreover, that at the beginning of a shift, the wait for transportation and the transportation itself are treated alike; that is, the time spent waiting for deadhead transportation after reporting for duty at the required hour and the time spent in the deadhead transportation itself are both on-duty time. A consistent interpretation of the statute requires that the parallelism between the wait and the transportation when the shift begins carry over to the wait and the transportation when it ends.

Finally, the concerns that surfaced during the 1969 amendment process lend additional support to our conclusion. As noted, before the 1969 amendments time under the HSA fell into one of two categories — on duty or off duty. The binary scheme created a problem, however. The hours spent deadheading from the duty site to the terminal counted as off-duty rest time, see United States v. Great Northern R. Co., 285 F. 152, 153 (CA9 1922), and, as a consequence, employees often spent much of their off-duty time not resting, but deadheading to the terminal. S. Rep. No. 91-604, p. 7 (1969); H. R. Rep. No. 91-469, p. 7 (1969). The railroad unions responded to the problem during the amendment process by advocating that all time spent deadheading be classified as time on duty, and the original bill proposed in the House so provided. Ibid. The railroad industry opposed the change, however, particularly with respect to time spent deadheading from the duty site because of the operating difficulties that would result. Hearings on H. R. 8449, H. R. 84, and H. R. 9515 before the House Committee on Interstate and Foreign Commerce, 91st Cong., 1st Sess., 134-135 (1969). If time spent deadheading from a duty site were to be on-duty time, railroads would have to calculate the approximate deadheading time and stop the train early enough to take account of that interval. Any miscalculation would lead to a violation of the HSA.

The enacted statute reflects a compromise in the treatment of deadhead transportation: on-duty time at the shift’s beginning, limbo time at its end. The creation of limbo time solved the problem of the employee who was forced to spend much of his or her off-duty rest time in deadhead transportation, but it did so without imposing scheduling difficulties on the railroads. If we were now to classify the waiting time as on-duty, as petitioners request, we would impose on railroads the same scheduling problems that Congress sought to avoid.

Petitioners try to escape the force of the argument by attempting to fit the time at issue here within other HSA provisions. For instance, because an “interim period available for rest at a place other than a designated terminal is time on duty,” 49 U. S. C. § 21103(b)(5), petitioners reason that all waiting time at a place other than a designated terminal must be time on duty. But, as we have said, interim periods available for rest occur, by definition, between periods of service for the railroad. Because the employee must return to work immediately after an interim rest period, Congress had to determine whether such a rest period would be sufficient to alleviate fatigue. Its conclusions on that score have no bearing when the time spent waiting for deadhead transportation is followed not by renewed service but by the statutory off-duty rest time. Petitioners next argue that because the HSA provides that “[t]ime on duty begins when the employee reports for duty and ends when the employee is finally released from duty,” §21103(b)(1), time on duty must always continue until the employee reaches his designated terminal. But that cannot be, for the HSA is express in providing that deadhead transportation from a duty site is limbo time, § 21103(b)(4).

Petitioners also point to § 21103(b)(3), which classifies as on duty any “[t]ime spent performing any other service for the railroad carrier during the 24-hour period in which the employee is engaged in.or connected with the movement of a train.” They say that because employees may be required to perform services for the railroad while they wait for the deadhead transportation to arrive, waiting time must be considered time on duty pursuant to § 21103(b)(3). Petitioners’ argument begs the question, however. If employees are required to perform services covered by § 21103(b)(3), the time is on-duty time by definition. The question presented here, however, is how to treat the time spent waiting for deadhead transportation when no additional services are required, and § 21103(b)(3) cannot answer that question.

Petitioners, like the Ninth Circuit in United Transportation Union v. Skinner, 975 F. 2d, at 1426, point to numerous cases, most of them decided during the early part of this century, that they believe support their interpretation of the statute. See Missouri, K, & T R. Co. of Tex. v. United States, 231 U. S. 112 (1913); Northern Pacific R. Co. v. United States, 220 F. 108 (CA9 1915); United States v. Southern Pacific Co., 245 F. 722 (CA9 1917); United States v. Pennsylvania R. Co., 275 F. Supp. 345 (WD Pa. 1967); United States v. Chicago, M. & P. S. R. Co., 195 F. 783 (WD Wash. 1912). We need not determine whether the Ninth Circuit’s reading of these cases was the correct one, cf. Atchison, T. & S. F. R. Co. v. Peña, 44 F. 3d 437, 444 (CA7 1994) (opinion below) (distinguishing the above cases because they addressed “the categorization of time spent by a railroad crew waiting for repairs to be made or for some other delay before resuming its duties of operating the train”), because they were all decided before Congress amended the HSA. Thus, even if the time at issue here had been treated as on-duty time before 1969, that conclusion would have no bearing on how the time should now be defined because the 1969 amendments addressed this question.

For these reasons, we reject petitioners’ construction of the HSA. The text, structure, and purposes of the statute persuade us that Congress intended that time spent waiting for deadhead transportation from a duty site should be limbo time. The judgment of the Court of Appeals is affirmed.

It is so ordered.


source: Caselaw Access Project

author: Per Curiam. Justice Stevens, Chief Justice Rehnquist, Justice Scalia,

license: Public Domain

text:
    LAWRENCE, guardian and next friend on behalf of LAWRENCE, a minor v. CHATER, COMMISSIONER OF SOCIAL SECURITY
    No. 94-9323.
    Decided January 8, 1996
   Per Curiam.

Under the Social Security Act, the unmarried minor “child” of a deceased individual who was insured under the Act may receive survivors’ benefits if she was “dependent upon such individual” prior to his death. 49 Stat. 623, as amended, 42 U. S. C. § 402(d)(1)(C) (1988 ed.). In order to determine whether a claimant is, for these purposes, the “child” of the deceased, and, as such, eligible to receive benefits, the Commissioner of Social Security “shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the] insured individual. . . was domiciled at the time of his death.” 42 U. S. C. § 416(h)(2)(A) (1988 ed.).

The petitioner in this case, Lawrence, asserts an entitlement to benefits under these provisions. In so doing, she acknowledges that the relevant state law, that of North Carolina, appears on its face to defeat her claim by imposing procedural requirements on proof of paternity (which it requires as a prerequisite for intestate succession) that she cannot meet. She contends, however, that these difficulties can be overcome in her case as they were in Handley v. Schweiker, 697 F. 2d 999 (1983). In that case, the Court of Appeals for the Eleventh Circuit held that state-law requirements of proof of paternity can only be applied against a claimant for benefits under § 416(h)(2)(A) insofar as they are constitutional, and that an Alabama law similar to the North Carolina law involved here was unconstitutional. In contrast, in the case before us, the Court of Appeals for the Fourth Circuit upheld the Social Security Administration’s Appeals Council’s denial of benefits to Lawrence. The Court of Appeals expressly adopted the rationale for rejecting her claim that the Government advanced in its brief to that court: that the constitutionality of a state paternity law need not be considered before applying it to determine entitlement to benefits under the federal statutory scheme. Lawrence petitioned for certiorari to review that decision.

In his response, the Solicitor General advises us that the “Social Security Administration has re-examined” the role of state paternity and intestacy laws in the federal benefits scheme, and now interprets the Social Security Act as “requiring] a determination, at least in some circumstances, of whether the state intestacy statute is constitutional.” Brief for Respondent 8. He also correctly notes that the Act directs the Commissioner of Social Security — not, in the first instance, the courts — to “apply such law as would be applied . . . by the courts of the State” concerned. § 416(h)(2)(A). Without conceding Lawrence’s ultimate entitlement to benefits, he invites us to grant certiorari, vacate the judgment below, and remand the case (GVR) so that the Court of Appeals may either decide it in light of the Commissioner’s new statutory interpretation or remand the case to the Commissioner for reconsideration in light of that interpretation. We conclude both that we have the power to issue a GVR order, and that such an order is an appropriate exercise of our discretionary certiorari jurisdiction.

Title 28 U. S. C. § 2106 appears on its face to confer upon this Court a broad power to GVR: “The Supreme Court or any other court of appellate jurisdiction may . . . vacate . . . any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and ... require such further proceedings to be had as may be just under the circumstances.” In his dissent issued today in this case and in Stutson v. United States, post, p. 193, another case in which we issue a GVR order, Justice Scalia contends that “traditional practice” and “the Constitution and laws of the United States” impose “implicit limitations” on this power. Post, at 178. We respectfully disagree. We perceive no textual basis for such limitations. The Constitution limits our “appellate Jurisdiction” to issues of “[federal] Law and Fact,” see Art. Ill, § 2, but leaves to Congress the power to “ordain and establish ... inferior Courts,” Art. Ill, § 1, and to make “Exceptions” and “Regulations” limiting and controlling our appellate jurisdiction. Insofar as Congress appears to have authorized such action, we believe that this Court has the power to remand to a lower federal court any case raising a federal issue that is properly before us in our appellate capacity.

Our past practice affirms this conclusion. Although, as Justice Scalia’s dissent explains, post, at 179-183, the exercise of our GVR power was, until recent times, rare, its infrequent early use may be explained in large part by the smaller size of our certiorari docket in earlier times. Regardless of its earlier history, however, the GVR order has, over the past 50 years, become an integral part of this Court’s practice, accepted and employed by all sitting and recent Justices. We have GVR’d in light of a wide range of developments, including our own decisions, see post, at 180 (Scalia, J., dissenting), State Supreme Court decisions, see, e. g., Conner v. Simler, 367 U. S. 486 (1961), new federal statutes, see, e. g., Sioux Tribe of Indians v. United States, 329 U. S. 685 (1946), administrative reinterpretations of federal statutes, see, e. g., Schmidt v. Espy, 513 U. S. 801 (1994), new state statutes, see, e. g., Louisiana v. Hays, 512 U. S. 1230 (1994), changed factual circumstances, see, e.g., NLRB v. Federal Motor Truck Co., 325 U. S. 838 (1945) (demilitarization of employees), and confessions of error or other positions newly taken by the Solicitor General, see, e.g., Wells v. United States, 511 U. S. 1050 (1994); Reed v. United States, 510 U. S. 1188 (1994); Ramirez v. United States, 510 U. S. 1103 (1994); Chappell v. United States, 494 U. S. 1075 (1990); Polsky v. Wetherill, 403 U. S. 916 (1971), and state attorneys general, see, e. g., Cuffle v. Avenenti, 498 U. S. 996 (1990); Nicholson v. Boles, 375 U. S. 25 (1963).

This practice has some virtues. In an appropriate case, a GVR order conserves the scarce resources of this Court that might otherwise be expended on plenary consideration, assists the court below by flagging a particular issue that it does not appear to have fully considered, assists this Court by procuring the benefit of the lower court’s insight before we rule on the merits, and alleviates the “[potential for unequal treatment” that is inherent in our inability to grant plenary review of all pending cases raising similar issues, see United States v. Johnson, 457 U. S. 537, 556, n. 16 (1982); cf. Griffith v. Kentucky, 479 U. S. 314, 323 (1987) (“[W]e fulfill our judicial responsibility by instructing the lower courts to apply the new rule retroactively to cases not yet final”). Where intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation, a GVR order is, we believe, potentially appropriate. Whether a GVR order is ultimately appropriate depends further on the equities of the case: If it appears that the intervening development, such as a confession of error in some, but not all, aspects of the decision below, is part of an unfair or manipulative litigation strategy, or if the delay and further cost entailed in a remand are not justified by the potential benefits of further consideration by the lower court, a GVR order is inappropriate. This approach is similar in its flexibility to this Court’s longstanding approach to applications for stays and other summary remedies granted without determining the merits of the case under the All Writs Act, 28 U. S. C. §1651. See, e. g., Heckler v. Lopez, 463 U. S. 1328 (1983) (Rehnquist, J., in chambers) (staying a District Court order pending the decision on the merits of the Court of Appeals). (Naturally, because GVR orders are premised on matters that we have reason to believe the court below did not fully consider, and because they require only further consideration, the standard that we apply in deciding whether to GVR is somewhat more liberal than the All Writs Act standard, under which relief is granted only upon a showing that a grant of certio-rari and eventual reversal are probable, see id., at 1330.) Used in accordance with this approach, the GVR order can improve the fairness and accuracy of judicial outcomes while at the same time serving as a cautious and deferential alternative to summary reversal in cases whose precedential significance does not merit our plenary review.

Justice Scalia’s dissent would confine GVR’s to three categories of cases:

“(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) . . . where the respondent or appel-lee confesses error in the judgment below.” Post, at 191-192.

While a large proportion of this Court’s GVR orders fall within these categories, we find that, especially as the dissent construes them, they are too narrow to account for the full extent of our actual practice. We find two aspects in particular of the dissent’s approach too restrictive. First, the dissent would insist that only matters that the lower court had no “opportunity” to consider can be the basis for GVR orders. Second, it would impose special restrictions as to when the Court may GVR in light of changes of position by litigants.

Justice Scalia’s dissent concedes — correctly, we believe — that its first category — “intervening factor[s]”— must be extended to include at least Supreme Court decisions rendered so shortly before the lower court’s decision that the lower court had no “opportunity” to apply them. Post, at 181. The dissent does not explain, however, why what the lower court had an “opportunity” to consider should be decisive, or how its “opportunity” is to be assessed. In Robinson v. Story, 469 U. S. 1081 (1984), we GVR’d for further consideration in light of a Supreme Court decision rendered almost three months before the summary affirmance by the Court of Appeals that was the subject of the petition for certiorari. Were those three months sufficient “opportunity” for the court to apprise itself (or be apprised by the parties) of the new, potentially relevant Supreme Court decision? If Robinson was properly GVR’d, we have difficulty understanding the dissent’s objection to our GVR order today in Stutson, where, as in Robinson, the Court of Appeals wrote no opinion to show whether or how it considered a precedent of ours that the District Court had had no opportunity to consider. In both cases, the Court of Appeals “might (or might not) have relied on a standard [nonapplication of the prior Supreme Court decision] that might (or might not) be wrong [and] that might (or might not) have affected the outcome.” Post, at 185 (Scalia, J., dissenting). The only pertinent difference that we can discern between the two eases is that the recent Supreme Court precedent was briefed to the Court of Appeals in Stutson, but we have never held lower court briefing to bar our review and vacatur where the lower court’s order shows no sign of having applied the precedents that were briefed. Compare post, at 185-186 (asserting that “we have no power” to vacate and remand in Stutson after relevant briefing and a summary-order below), with, e. g., Netherland v. Tuggle, 515 U. S. 951 (1995) (per curiam) (vacating Court of Appeals’ summary order staying execution for probable failure to apply a 12-year-old Supreme Court precedent that the parties briefed to the Court of Appeals; this Court itself granted a stay a week later, applying that precedent, see Tuggle v. Netherland, 515 U. S. 1188 (1995)). As the prevalence of summary dispositions by the Courts of Appeals continues to increase with the burgeoning federal docket — in 1994, over 11% of Court of Appeals decisions on the merits, and many more procedural decisions, were summary — such cases will, no doubt, arise more frequently. In this context, it is important that the meaningful exercise of this Court’s appellate powers not be precluded by uncertainty as to what the court below “might. . . have relied on.” And we are well aware, as are Supreme Court practitioners and lower courts, that while not immune from our plenary review, ambiguous summary dispositions below tend, by their very nature, to lack the precedential significance that we generally look for in deciding whether to exercise our discretion to grant plenary review. We are therefore more ready than the dissent to issue a GVR order in cases in which recent events have cast substantial doubt on the correctness of the lower court’s summary disposition.

With regard to confessions of error and other changes of position by litigants, we agree on several points. All Members of the Court are agreed that 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,” Mariscal v. United States, 449 U. S. 405, 406 (1981) (Rehnquist, J., dissenting). And the dissent acknowledges as “well entrenched,” post, at 183 (opinion of Scalia, J.), our practice of GVR’ing in light of plausible confessions of error without determining their merits. Moreover, the dissent is ready in principle to GVR in light of a new agency interpretation of a statute that is entitled to deference under the rule of Chevron U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Post, at 186-187.

In other respects, however, our approaches to changes of position by litigants diverge. Justice Scalia’s dissent disapproves (although it acknowledges) this Court’s well-established practice of GVR’ing based on confessions of error that do not purport to concede the whole case. Post, at 183, 184-185; cf., e. g., Moore v. United States, 429 U. S. 20 (1976) (GVR’ing based on the Solicitor General’s confession of error, notwithstanding the Solicitor General’s unresolved claim that the error was harmless). The dissent would apparently insist that such GVR’s be confined to cases in which the confession of error concerns a “legal point on which the lower court explicitly relied,” or on which we otherwise “know” for certain that the lower court’s judgment rested. Post, at 185. But, given the legitimacy of GVR’s on the basis of confessions of error without determining the merits, we do not understand why a reasonable probability that the lower court relied on the point at issue should not suffice. As we have explained, supra, at 167, we have GVR’d on the basis of a reasonable probability of a change in result in nonconfession of error cases, see, e. g., Robinson v. Story, supra. We see no special reason why, in a confession of error case, a certainty that the lower court relied on the point in question should be necessary before we may GVR on the basis of a reasonable probability that giving the lower court the opportunity to consider that point anew will alter the result.

Similarly, we reject Justice Scalia’s dissent’s other requirement of certainty for GVR’s founded on a change of position by the Government. The dissent accepts in principle that a new interpretation of a statute adopted by the agency charged with implementing it may be entitled to deference in the context of litigation to which the Government is a party. But the dissent would require that before such new interpretation may be the basis for a GVR order, we must be “certain that the change in position is legally cognizable,” post, at 187 (emphasis added), in the sense that it is “entitled to deference,” post, at 188, despite its timing, in that particular case. This requirement, too, appears to be confined to cases in which the event on which the GVR is based is a change of position by the Government, see post, at 187; we do not, for example, understand the dissent to contend that a similar requirement of “lega[l] cognizab[ility]” should apply to GVR’s in habeas corpus cases in which the procedural bar that we recognized in Teague v. Lane, 489 U. S. 288 (1989), might apply. Again, we do not understand the rationale for imposing such special requirements on GVR’s based on a change of position. If it appears reasonably probable that a confession of error reveals a genuine and potentially determinative error by the court below, a GVR may be appropriate; similarly, we believe that if an agency interpretation is reasonably probably entitled to deference and potentially determinative, we may GVR in light of it. It is precisely because of uncertainty that we GVR. We do not see why uncertainty as to the “lega[l] cognizab[ility]” of an agency interpretation in a particular case should be treated differently from uncertainty as to its application in that case. Indeed, to determine on the merits whether deference is owed to the agency interpretation, based on a circumstance — i. e., its timing with respect to the case at hand — that will not be present in any other case brought under the statute at issue, when the Court of Appeals has had no “opportunity” to consider the new agency interpretation, appears to us to defeat the purpose of GVR’ing. Rather, we think it appropriate to apply our normal “reasonable probability” test, and to defer any special concerns about strategic litigating behavior that are raised by changes in the Government’s position to consideration of the equities. Under our approach, neither uncertainty as to whether the Government’s change of position, if accepted, would be outcome determinative, nor uncertainty as to the “lega[l] cog-nizab[ility]” of an administrative interpretation, preclude a GVR if the overall probabilities and equities support the GVR order. Indeed, we issued just such a GVR order last Term, without recorded dissent. See Schmidt v. Espy, 513 U. S. 801 (1994) (GVR on the basis of the Solicitor General’s representation that “[ajfter further examination of the regulation and its application in the present case,... the Department of Agriculture has determined that petitioners’ lease-baek/buybaek application should be reconsidered without respect to the good faith requirement,” Brief for Respondent in Schmidt v. Espy, O. T. 1994, No. 93-1707, p. 7; see also id., at 10, n. 5 (maintaining that other obstacles to petitioners’ application might remain)).

Our differences with Justice Scalia’s dissent should not overshadow the substantial level of agreement shared by all Members of this Court. On the one hand, all are agreed that a wide range of intervening developments, including confessions of error, may justify a GVR order. On the other hand, all are agreed that our GVR power should be exercised sparingly. This Court should not just GVR a 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.” Post, at 189 (Scalia, J., dissenting); accord, Alvarado v. United States, 497 U. S. 543, 545 (1990) (Rehnquist, C. J., dissenting). Respect for lower courts, the public interest in finality of judgments, and concern about our own expanding certiorari docket all counsel against undisciplined GVR’ing. It remains to apply these principles to the facts of this case.

The feature of this case that, in our view, makes a GVR order appropriate is the new interpretation of the Social Security Act that the Solicitor General informs us that the Social Security Administration, the agency charged with implementing that Act, has adopted. As Justice Scalia’s dissent notes, post, at 187, we have not settled whether and to what extent deference is due to an administrative interpre-ation — its “lega[l] cognizab[ility]” — in a case that has already reached the appeal or certiorari stage when that interpretation is adopted. But in our view, see supra, at 172-173, such uncertainty does not preclude a GVR. Indeed, it is precisely because we are uncertain, without undertaking plenary analysis, of the legal impact of a new development, especially one, such as the present, which the lower court has had no opportunity to consider, that we GVR. Here, as in Schmidt, supra, the Solicitor General has recommended judicial reconsideration of the merits, while not conceding the petitioner’s ultimate entitlement to statutory benefits, based on a new statutory interpretation that will apparently be applied, and will probably be entitled to deference, in future cases nationwide. Here, as in Schmidt, our summary review leads us to the conclusion that there is a reasonable probability that the Court of Appeals would conclude that the timing of the agency’s interpretation does not preclude the deference that it would otherwise receive, and that it may be outcome determinative in this case. A GVR order is, therefore, appropriate, subject to the equities.

As to the equities, it seems clear that they favor a GVR order here. That disposition has the Government’s express support, notwithstanding that its purpose is to give the Court of Appeals the opportunity to consider an administrative interpretation that appears contrary to the Government’s narrow self-interest. And the Government has informed us that it intends to apply that interpretation to future cases nationwide. Giving Lawrence a chance to benefit from it furthers fairness by treating Lawrence like other future benefits applicants. We acknowledge the dissent’s concern that postlitigation interpretations may be the product of unfair or manipulative Government litigating strategies, see post, at 187, and we therefore view late changes of position by the Government with some skepticism. That general concern does not, however, appear to us to require that we deprive Lawrence of the benefit of a favorable administrative reinterpretation in these particular circumstances. We believe, therefore, that the equities and legal uncertainties of this case together merit a GVR order.

Accordingly, the motion for leave to proceed in forma pau-peris and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the position taken in the brief for respondent filed by the Solicitor General, August 17,1995.

Justice Stevens,

concurring.

The Court persuasively explains why we have “the power to remand to a lower federal court any case raising a federal issue that is properly before us in our appellate capacity.” Ante, at 166. 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 191. 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.

Chief Justice Rehnquist,

concurring in No. 94-9323 and dissenting in No. 94-8988, post, p. 193.

I agree, for the reasons given by Justice Scalia, that the Court is mistaken in vacating the judgment in No. 94-8988, Stutson v. United States, post, p. 193. I also agree with much of the rest of Justice Scalia’s dissent, but I do not agree with that portion, post, at 179, 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 that 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 judgment of the lower court without any opinion, on the other. Vacating a judgment 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:

“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.
“ ‘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).

I agree with the decision announced in the per curiam to vacate the judgment 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 187, it is perfectly reasonable to request the Court of Appeals to answer that question in the first instance.

Justice Scalia,

with whom Justice Thomas joins,

dissenting.

I dissent because I believe that the dispositions in both No. 94-8988, post, p. 193, and No. 94-9323, ante, p. 163, are improper extensions of our limited power to vacate without first finding error below.

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 judgment aside and sends the case back to the lower court for further proceedings, rather than entering or directing entry of judgment 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. 646 (1995), and Tuggle v. Netherland, ante, p. 10.

What is at issue here, however, is a different sort of creature, which might be called “no-fault V&R”: vacation of a judgment and remand without any determination of error in the judgment 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. 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.

Title 28 U. S. C. § 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, § 8; Art. Ill, § 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, §2; Art. Ill, §1; 28 U. S. C. §§44, 133, 134. Despite the unqualified language of § 2106, we cannot, for example, “reverse” a judgment of one of these courts “and direct the entry” of a different judgment 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.

The Court today seeks to portray our no-fault V&R practice as traditionally covering a kaleidoscopic diversity of situations. See Lawrence v. Chater, ante, at 166-167. 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 judgment 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 judgment had been entered. We reasoned that “[wjhile 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).

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 judgment 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, post, p. 801; Kapoor v. United States, post, p. 801; Edmond v. United States, post, p. 802; Pacesetter Constr. Co. v. Carpenters 16 Northern Cal. Ctys. Conference Bd., post, p. 802; Doctor’s Associates, Inc. v. Casarotto, 515 U. S. 1129 (1995); Calamia v. Singletary, 514 U. S. 1124 (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.

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 judgment based on state law, we adopted the practice of vacating and remanding so that the state court could make the reasons for its judgment 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).

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 judgment 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 GVR’s, 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:

“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 judgment 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).

Cf. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18 (1994) (setting aside of a valid judicial judgment should not turn upon agreement of the parties). Many of the early GVR’s based upon the Government’s confession of error appear not to have been no-fault V&R’s 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”).

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. 1188 (1994); Ramirez v. United States, 510 U. S. 1103 (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).

Today’s cases come within none of these categories of no-fault V&R, not even the questionable last one. In Stutson v. United States, post, p. 193, the decision “in light of” which we vacate the judgment 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 judgment 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.

The United States has now revised its legal position and— though it makes no suggestion that the Court of Appeals’ judgment 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 judgment in its favor, conceded the error of a legal point on which the lower court explicitly relied. As I have explained, see supra, at 183, 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 judgment 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.

The Court justifies its setting aside of the judgment 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.” Stutson, post, at 196. 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 181, 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. The Court insists that declining to remand for clarification would risk “immunizing summary dispositions ... from our review,” Stutson, post, at 196. 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. Heilman, “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).

In No. 94-9323, the Court again GVR’s 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 judgment 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. 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.

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.” Ante, at 172. I do not agree. It seems to me our “intervening-event GVR’s” 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.

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 ante, at 172-173, 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,” ante, at 173, citing Schmidt v. Espy, 513 U. S. 801 (1994): It is not customary, but quite rare, to record dissents from grants of certiorari, including GVR’s. 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 GVR’s 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.

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. Ante, at 166. This presumably means that the constitutional grant of “appellate Jurisdiction” over “Cases . . . arising under [the] Constitution [and] Laws of the United States,” Art. Ill, §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.

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 manipulation]” and professing to agree that “our GVR power should be exercised sparingly,” ante, at 168, 173, the Court commits to no standard that will control that power, other than that cloak for all excesses, “the equities,” ante, at 168; see ante, at 173, 174, 175; post, at 196. 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 judgment 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.” Ante, at 167. 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 dénouement should make even the most Polly-annish reformer believe in camel’s noses, wedges, and slippery slopes.

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.” Ante, at 167 (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 Stutson, post, at 196, or today’s calculation of “the overall probabilities and equities,” ante, at 173 — 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 denial of petition for writ of certiorari). Moreover, even if we tried applying the Court’s “totality-of-the-circumstanees” 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.

Henceforth, I shall vote for an order granting certiorari, vacating the judgment 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 judgment below. (I shall not necessarily note my dissent from GVR’s 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.

       See Administrative Office of United States Courts, Reports of Proceedings of Judicial Conference of the United States, 1994, table S-3 (3,080 out of 27,219 decisions on the merits).

       In a letter filed on October 24,1995, the Solicitor General advised this Court of a July 1995 amendment to the North Carolina paternity statute, N. C. Gen. Stat. §49-14(c). We find it unnecessary to decide whether this development independently justifies our GVR order. The Court of Appeals is free to consider its significance on remand.

      [This opinion applies also to No. 94-8988, Stutson v. United States, post, p. 193.]

      [This opinion applies also to No. 94-8988, Stutson v. United States, post, p. 193.]

       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 175. 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 176.

       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. 1, 6-9 (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 without opinion).

       The Court misdescribes my position when it states that I would limit GVR’s “based on confessions of error that do not purport to concede the whole case” to “eases in which the confession of error concerns a ‘legal point on which the lower court explicitly relied.’” Ante, at 171 (quoting infra, at 185). Both the text above and the sentence immediately following the phrase that the Court quotes from my dissent, see ibid., 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 judgment but merely to an aspect of the reasoning below or of respondent’s argument below.

        Netherland v. Tuggle, 515 U. S. 951 (1995), upon which the Court relies, see ante, at 170, 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.

       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.


author: Per Curiam.

text:
    STUTSON v. UNITED STATES
    No. 94-8988.
    Decided January 8, 1996
   Per Curiam.

Our per curiam opinion issued today in a civil case, Lawrence v. Chafer, ante, p. 163; contains a general discussion of the considerations that properly influence this Court in deciding whether to grant a petition for certiorari, vacate the judgment 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.

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.

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. 1191 (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, post, p. 932; Virella-Nieves v. Briggs & Stratton Corp., 53 F. 3d 451, 454, n. 3 (CA1 1995) (same).

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 that 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 171 (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.

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 170 (discussing Netherland v. Tuggle, 515 U. S. 951 (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 “[t]he law is the law,” ante, at 184 (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.

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 that caused no prejudice to the prosecution to preclude a remand under 28 U. S. C. §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. § 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,” ante, at 178 (opinion of Scalia, J.), 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.

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.

Accordingly, the motion for leave to proceed informa pau-peris and the petition for a writ of certiorari are granted. The judgment 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).

[For concurring opinion of Justice Stevens, see ante, p. 175; for dissenting opinion of The Chief Justice, see ante, p. 176; for dissenting opinion of Justice Scalia, see ante, p. 177.]

        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.