Thomas v. American Home Products, 519 U.S. 913 (1996)

JUSTICE SCALIA, concurring.

Since I have been critical of the Court’s excessive use of the GVR mechanism, I think it appropriate to explain why I think it proper to GVR here.

As I described in Lawrence v. Chater, 516 U.S. 163, 177 (1996) (SCALIA, J., dissenting), our practice of granting certiorari, vacating the judgment below, and remanding for further proceedings in light of intervening developments apparently began when we first set aside the judgments of state supreme courts to allow those courts to consider the impact of state statutes enacted after their judgments had been entered. E.g., Missouri ex rel. Wabash R. Co. v. Public Serv. Comm’n, 273 U.S. 126 (1927). By 1945, the practice of vacating state judgments in light of supervening events had become so commonplace that we could describe it as "[a] customary procedure." State Farm Mut. Automobile Ins. Co. v. Duel, 324 U.S. 154, 161.

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."

Stutson, supra, at 180 (SCALIA, J., dissenting) (quoting Huddleston v. Dwyer, 322 U.S. 232, 237 (1944)). See also Conner v. Simler, 367 U.S. 486 (1961); cf. Omaha Nat. Bank v. Nebraskans for Independent Banking, Inc., 426 U.S. 310 (1976) (GVR’ing in light of an intervening state statute).

Thus, the present case falls squarely within our historical use of the GVR mechanism. The Supreme Court of Georgia’s decision in Banks v. ICI Americas, Inc., 266 Ga. 607, 609-610, 469 S.E.2d 171, 174 (1996) (Banks II), handed down after the Court of Appeals for the Eleventh Circuit’s decision, makes clear that the Eleventh Circuit’s interpretation of Georgia law was incorrect. The sequence of events was as follows: After the Court of Appeals had issued its per curiam opinion affirming the District Court’s entry of summary judgment against petitioners, the Georgia Supreme Court, in Banks v. I. C. I., 264 Ga. 732, 450 S.E.2d 671 (1994) (Banks I), in effect overruled the Georgia case that was the basis for the District Court’s holding. Petitioners’ petition to the Eleventh Circuit for rehearing was denied, the only explanation given being "that the holding of the Georgia Supreme Court in [Banks I] would not apply to the injuries involved in this case" because that holding had no retroactive application. Thomas v. American Home Products, Inc., No. 93-9214 (CA11 1996), App. to Pet. for Cert. 28a. Shortly before the present petition for writ of certiorari was filed, the Supreme Court of Georgia held in Banks II that Banks I was retroactive.

THE CHIEF JUSTICE points out that "[p]etitioners’ request for relief meets none of the tests set forth in our Rule 10, `considerations governing review on writ of certiorari.’" Post, at 916. That is certainly so. Of course, as this Court’s Rule 10 itself makes plain, those tests "neither control[] nor fully measur[e] the Court’s discretion," but rather merely "indicate the character of the reasons the Court considers" in deciding whether to grant certiorari. More importantly, however, we have never regarded Rule 10, which indicates the general character of reasons for which we will grant plenary consideration, as applicable to our practice of GVR’ing. See, e.g., Lawrence v. Chater, supra, at 166-167. Indeed, most of the cases in which we exercise our power to GVR plainly do not meet the "tests" set forth in Rule 10. See, e.g., Schmidt v. Espy, 513 U.S. 801 (1994) (GVR in light of administrative reinterpretations of federal statutes); Crouse v. United States, ante, p. 801 (GVR in light of Koon v. United States, 518 U.S. 81 (1996)); Greater N.O. Broadcasting v. United States, ante, p. 801 (1996) (GVR in light of 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)).

We are not remanding this state law case, as THE CHIEF JUSTICE suggests, because the Eleventh Circuit failed to prophesy the course that the Supreme Court of Georgia would ultimately take, see post, at 917, any more than we remand federal law cases in light of intervening decisions of this Court because the court of appeals failed adequately to predict how we would decide. In both instances, we are vacating the decision below to allow the court of appeals to consider an intervening decision of the court that is the final expositor of a particular body of law -- with federal questions, the Supreme Court of the United States, and with questions of Georgia law, the Supreme Court of Georgia. We assuredly would not decline to GVR a case affected by one of our own intervening decisions merely because the case "is of no general importance beyond the interest of the parties." Post at 917. Almost all of our GVR’s fit this description -- for example, the many cases GVR’d in recent months in light of our decision in Bailey v. United States, 516 U.S. 137 (1995), e.g., Cuellar v. United States, 518 U.S. 1014 (1996). I can think of no possible reason why we would routinely GVR "unimportant" cases in light of our own opinions but not in light of state supreme court opinions, unless, of course, we have less regard for the federal courts’ correct application of state law than for their correct application of federal law -- an attitude we should certainly not acknowledge.

I do not share THE CHIEF JUSTICE’s fear that our action today will flood the Court with applications to review questions of state law by petitioners "unhappy" with the result below. Post, at 917. As I have described, today’s action breaks no new ground, but merely continues a longstanding practice. It does not involve us in an intensive review of state law, but requires only the simple determination (rarely available) that the federal court decision on state law appears to contradict a subsequent decision of the state supreme court. When the conflict is of "far more dubious . . . relevance" than the one at issue here, ibid., we can and should exercise our discretion to deny the petition for writ of certiorari.