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,
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 "requir[ing] 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.
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. III, § 2, but leaves to Congress the power to "ordain and establish . . . inferior Courts," Art. III, § 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,
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 "[p]otential 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
Justice Scalia's dissent would confine GVR's to three categories of cases:
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
With regard to confessions of error and other changes of position by litigants, we agree on several points. All Members
In other respects, however, our approaches to changes of position by litigants diverge. Justice Scalia's dissent disapproves (although it acknowledges) this Court's wellestablished 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
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
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,
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 interpreation—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
Accordingly, the motion for leave to proceed in forma pauperis 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
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:
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
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.
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
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 "[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
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 46 Northern Cal. Ctys. Conference Bd., post, p. 802; Doctor's Associates, Inc. v. Casarotto, 515 U.S. 1129
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).
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
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).
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,
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,
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.
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
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 baitand-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
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. III, § 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
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," 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 Pollyannish 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
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