Cite as: 520 U. S. 893 (1997)
Rehnquist, C. J., dissenting
quest was "without merit" does not establish that it actually considered and rejected petitioner's Sheets argument. In opposing petitioner's motion, respondent argued that a court of appeals lacks authority to recall its mandate, and the Court of Appeals may have rested its denial of petitioner's motion on this procedural ground. Respondent does not argue otherwise. Indeed, the procedural ground is by far the most likely, given Sheets' explicit repudiation of the precedent on which the Court of Appeals' original judgment hinged. Moreover, we have at least once before issued a GVR order where petitioners notified the Federal Court of Appeals of an intervening State Supreme Court's opinion in a second petition for rehearing, which the Court of Appeals denied. See Huddleston, supra, at 235.
In these circumstances, we now grant certiorari, vacate the judgment below, and remand the case to the Court of Appeals for further consideration.
Chief Justice Rehnquist, with whom Justice Breyer joins, dissenting.
In Thomas v. American Home Products, Inc., 519 U. S. 913 (1996), the Court granted, vacated, and remanded a decision of the Court of Appeals for the Eleventh Circuit for reconsideration in the light of a decision of the Georgia Supreme Court that was handed down after the Court of Appeals had denied a petition for rehearing. The lower court there had had no opportunity to consider the impact of the new state-law decision.
Here, by contrast, Sheets v. Brethren Mutual Ins. Co., 342 Md. 634, 679 A. 2d 540 (1996), was expressly considered by the court below. Although Sheets was not brought to the attention of the Fourth Circuit until after it had rendered its decision and denied rehearing, petitioner raised it nonetheless before that court in a motion to recall or stay the mandate. Petitioner's motion did not fall on deaf ears; indeed, the Fourth Circuit went to the unusual lengths of requesting
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