Parties often disagree about what to do at the district court on remand following an appeal. While the law of the case doctrine and the mandate rule guide the issue, sometimes reasonable 10th Circuit Spotlightminds can differ on what an appellate court actually intended. Such was the case in Harte v. Board of Commissioners, — F.3d —, No. 18-3091, 2009 WL 4892274 (10th Cir. Oct. 4, 2019) (Harte II). During its second visit to the Tenth Circuit (and probably not its last), Harte II answered the question of what to do when none of the appellate judges on a panel agree on the reasoning for and scope of a remand.

‘Operation Constant Gardener’

The Hartes, former federal intelligence officers, settled in Leawood, Kans. to enjoy their indoor tomato garden and loose-leaf tea. Unbeknownst to them, a highway patrol officer was running his “Operation Constant Gardener” where he tracked the license plate numbers of customers leaving a local garden store on the theory that marijuana growers require garden supplies. Mr. Harte had the misfortune of visiting the garden store one day when the officer was running his operation.

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