184
Scalia, J., 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,
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.
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