SUPREME COURT OF THE UNITED STATES


                      D. L. THOMAS ET UX. v. AMERICAN HOME
                                         ____
                              PRODUCTS, INC. ET AL.

        ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
                                 APPEALS FOR THE
                                 ELEVENTH CIRCUIT
                     No. 95-1826.  Decided October 15, 1996

  The petition for a writ of certiorari is 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 Banks v. ICI Americas, Inc., 266
                                              _____    ___________________
Ga. 607, 469 S. E. 2d 171 (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 Stutson v. United States, 516 U. S. ___, ___ (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

2                       THOMAS v. AMERICAN HOME PRODUCTS
                              ____

remand so that the question could be decided by judges `familiar with the
intricacies and trends of local law and practice.'"   Stutson, supra, at___
                                                      _______  _____
(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 ___.  That is certainly so.  Of course as this
                       ____
Court's Rule 10 itself makes plain, those tests "neither controll[] nor fully
measur[e] the Court's discretion," but rather merely "indicate the character of

                        THOMAS v. AMERICAN HOME PRODUCTS                       3
                              ____

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, 516 U. S.
                                             ____  ________    ______
___, ___ (1996).  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. ___ (1994) (GVR in light of administrative reinterpretations of
____
federal statutes); Crouse v. United States, 519 U. S. ___ (1996) (GVR in light
                   _______   _____________
of Koon v. United States, 518 U. S. ___ (1996)); Greater N.O. Broadcasting v.
   ____    _____________                         _________________________
United States, 519 U. S. ___ (1996) (GVR in light of 44 Liquormart, Inc. v.
_____________                                        ___________________
Rhode Island, 517 U. S. ___ (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 ___, 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 ___.  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. ___ (1995), e.g., Cuellar v.
            ______    _____________                        ____  _______
United States, 518 U. S. ___ (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

4                       THOMAS v. AMERICAN HOME PRODUCTS
                              ____

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 ___.  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, post, at ___, we can and should exercise our discretion to deny the
      ____
petition for writ of certiorari.
  CHIEF JUSTICE REHNQUIST, with whom JUSTICE BREYER joins, dissenting.

  This is a personal-injury, products-liability case which is in the federal
court system by virtue of diversity of citizenship.  The Court of Appeals for
the Eleventh Circuit affirmed a grant of summary judgment against petitioners by
the district court, and petitioners have sought review here.  In a supplemental
brief filed after their petition, they have called attention to the decision of
the Supreme Court of Georgia, Banks v. ICI Americas, Inc., 266 Ga. 607, 469
                              _____    __________________
S.E.2d 171, 174 (1996), handed down on April 29, 1966, two-and-one half months
after the Court of Appeals denied rehearing.  
  Petitioners' request for relief meets none of the tests set forth in our Rule
10, "considerations governing review on writ of certiorari."  The first of these
considerations, as outlined in the Rule, is if a court of appeals has rendered a
decision in conflict with the decision of another United States court of
appeals, or has decided a federal question in a way which conflicts with the

                        THOMAS v. AMERICAN HOME PRODUCTS                       5
                              ____

decision of a state court of last resort, or "has so far departed from the
accepted and usual course of judicial proceedings . . . as to call for an
exercise of this Court's power of supervision."  There is clearly no conflict
between courts of appeals in this case, nor does petitioner claim that the Court
of Appeals for the Eleventh Circuit has decided a federal question in a way
which conflicts with a state court of last resort.  Nor could it be claimed that
the Court of Appeals departed from the accepted and usual course of judicial
proceedings, since the decision of the Supreme Court of Georgia in Banks was
                                                                   ______
handed down more than two months after the Court of Appeals denied rehearing.  
  The other considerations governing review of certiorari likewise have no
application to this case.  The Court of Appeals here has not decided an
important question of federal law which should be settled by this Court, or
decided a federal question in a way that conflicts with applicable decisions of
this Court.
  Thus, one must ask, why is this Court intervening to vacate and remand this
case to the Court of Appeals?  The Court's answer, I suspect, would be that
Banks suggests that the Court of Appeals may have wrongly decided an issue of
______
Georgia law in the case.  But this Court's function, generally speaking, is not
to correct federal courts' misapplications of state law, except, perhaps, in
exceptional cases with importance beyond the parties' particular dispute.  This
is not such an exceptional case; there is no reason to think that the Eleventh
Circuit will not apply Banks faithfully in future cases.  Nor is this a case
                       ______
which we must, for one reason or another, decide on the merits and where the
views of another court as to the intervening state-law decision might be useful,
or a case where certiorari has already been granted and the case argued on the
merits.  See Stutson v. United States, ___ U. S. ___, 116 S. Ct. 611 (1996)
             _______    _____________
(Rehnquist, C.J., concurring in No. 94-9323 and dissenting in No. 94-8988)
(citing and distinguishing cases).  

6                       THOMAS v. AMERICAN HOME PRODUCTS
                              ____

  To be sure, there is a "special deference owed to state law and state courts
in our system of federalism," Stutson, supra, at 613 (Scalia, J., dissenting),
                              _______  _____
but by failing to predict the Georgia Supreme Court's Banks decision the
                                                      ______
Eleventh Circuit has in no way slighted the State of Georgia or upset the
balance of our federalism.  I do not believe that this Court has a stake in the
correctness of discrete state-law decisions by federal courts, nor, in such
cases, any "obligat[ion] to weigh justice among contesting parties."  Stutson,
                                                                      _______
supra, at 611 (Rehnquist, J., concurring in No. 94-9323 and dissenting in No.
_____
94-8988) (quoting 2 H. Pringle, The Life and Times of William Howard Taft
997-998 (1939)).    
  I trust I am correct in thinking that the Court would not grant certiorari in
this case to decide whether or not the decision of the Supreme Court of Georgia
in Banks requires a different outcome than that reached below.  I am equally
   ______
sanguine that the Court would not summarily reverse the decision of the Court of
Appeals on a question of Georgia law, a subject about which that court knows a
great deal more than we do.  Because we are only granting, vacating, and
remanding to the Court of Appeals, the Court's action may seem more palatable
here.  But I believe it is just as incorrect as would be our deciding the merits
of a question of state law in some other diversity case which is of no general
importance beyond the interest of the parties.  The decision to vacate and
remand in this case doubtless seems an easy one to those who join it; the Court
of Appeals specifically mentioned the retroactivity issue later decided in Banks
                                                                           _____
in its opinion denying rehearing, and respondent has filed no response to
petitioners' supplemental brief.  But today's action will encourage numerous
similar requests from other parties unhappy with the decision of a court of
appeals in their diversity cases, and the relevance of the intervening factors
which they urge may be far more dubious than is the relevance of Banks to this
                                                                 _____
case.

                        THOMAS v. AMERICAN HOME PRODUCTS                       7
                              ____

  Finally, requiring the Court of Appeals to delve into the facts and law of the
case again, months after it denied rehearing, is not without cost.  The typical
active judge of the Court of Appeals for the Eleventh Circuit participates in
somewhere between 150 and 200 panel decisions each year.  For us to require a
busy court to once more revisit the merits of this state law dispute gives these
petitioners more of the time and resources of the federal judicial system than
they deserve.
  I dissent from the Court's disposition of this case.