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For most lawyers, the mandate is an abstract concept that they seldom consider. But the law of mandates provides a number of principles that can be of use to the appellate practitioner. In most instances, the mandate involves only ministerial actions. It is issued by the clerk of the appellate court. See U.S. v. Rivera, 844 F.2d 916 (2d Cir. 1988). The applicable court rules define the content of the mandate and the procedure and timing for its issuance. See Sup. Ct. R. 45; Fed. R. App. P. 41; D.C. Cir. R. 41. The mandate as a jurisdictional concept Although perhaps obscured by these formalities, the mandate reflects an important jurisdictional concept. Issuance of the mandate is the official act that concludes the jurisdiction of the court of appeals and returns jurisdiction to the district court. Just as the notice of appeal serves to transfer jurisdiction from the trial to the appellate court, the mandate reinstates jurisdiction in the lower court. See Ostrer v. U.S., 584 F.2d 594 (2d Cir. 1978). Under this jurisdictional rule, judicial acts taken by the district court before issuance of the mandate are a nullity. See Kusay v. U.S., 62 F.3d 192 (7th Cir. 1995); In re Thorp, 655 F.2d 997 (9th Cir. 1981). The mandate is effective when it is issued irrespective of its receipt or implementation by the lower court. See Fed. R. App. P. 41(c) and advisory committee’s 1998 note. By the same token, the appellate court’s judgment is not final until the mandate is issued, and the parties’ obligations become fixed at that time. Id.; 16 Wright, Miller & Cooper, Federal Practice and Procedure � 3987 (2d ed. 1996). Thus, prior to issuance of the mandate, the court of appeals retains plenary authority to amend its opinion or modify its judgment. See Wilson v. Ozmint, 357 F.3d 461 (4th Cir. 2004); U.S. v. Craigo, 993 F.2d 1086 (4th Cir. 1993). Moreover, until the mandate is issued, the case is still pending in the court of appeals for purposes of applying a new Supreme Court decision or statute. Id. Some circuits hold that an appeal is not mooted by events occurring after the date of the opinion even though the time for rehearing has not expired and the mandate has not issued. See Bastien v. Campbell, 409 F.3d 1234 (10th Cir. 2005); Manufacturers Hanover Trust Co. v. Yanakas, 11 F.3d 381 (2d Cir. 1993). Other courts disagree. See Key Enters. v. Venice Hosp., 9 F.3d 893 (11th Cir. 1993) (en banc). Once the mandate has issued, it is binding on the court below under the well-established “mandate rule.” This rule extends to all issues that the court of appeals decided expressly or by necessary implication. See South Atlantic Ltd. Partnership v. Riese, 356 F.3d 576 (4th Cir. 2004); U.S. v. Ben Zvi, 242 F.3d 89 (2d Cir. 2001). In a hierarchical judicial system, a lower court must faithfully follow the controlling mandate of a superior court. The case law demonstrates that strict adherence is required. See South Atlantic; Huffman v. Saul Holdings Ltd. Partnership, 262 F.3d 1128 (10th Cir. 2001); Litman v. Massachusetts Mut. Life Ins. Co., 825 F.2d 1506 (11th Cir. 1987), cert. denied, 484 U.S. 1006 (1988). The mandate can be enforced by mandamus in appropriate circumstances, by an appeal from the trial court’s judgment or by recall of the mandate (as discussed below). See Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425 (1978) (mandamus); New England Ins. Co. v. Healthcare Underwriters, 352 F.3d 599 (2d Cir. 2003) (subsequent appeal); DeWeerth v. Baldinger, 38 F.3d 1266 (2d Cir. 1994), and Dilley v. Alexander, 627 F.2d 407 (D.C. Cir. 1980) (recall of mandate). Courts have recognized three exceptions to the mandate rule. The lower court does not have to follow the mandate where: (1) there has been a dramatic change in controlling legal authority; (2) previously unavailable new evidence has come to light; or (3) the appellate decision involved blatant error that would result in manifest injustice. See South Atlantic; Huffman. The third of these seems problematic. It appears inconsistent with the very notion of a superior court, and a recipe for much confusion and additional litigation, for a lower court to decide whether the appellate decision is blatantly erroneous. It also seems inconsistent with the stringent admonition, often stated together with the third exception in the very same opinions, that the district court must strictly comply with the mandate and may not alter or re-examine it. See South Atlantic; Litman (lower court cannot “vary” or “review” the mandate “even for apparent error”). Where a district court later considers a motion for relief from judgment under Fed. R. Civ. P. 60 based on subsequent developments, the mandate rule does not require it to obtain leave from the appellate court that previously issued the mandate in the case. See Standard Oil Co. v. U.S., 429 U.S. 17 (1976). If, however, there are no subsequent developments and the lower court simply believes the previous ruling was mistaken, Rule 60 does not provide a means for evading the mandate rule. See Eutectic Corp. v. Metco Inc., 597 F.2d 32 (2d Cir. 1979). A timely rehearing petition in the appellate court automatically stays issuance of the mandate. See Fed. R. App. P. 41(d)(1). In addition, a circuit court can stay its mandate pending a petition for certiorari in the Supreme Court. See Fed. R. App. P. 41(d)(2). However, a stay is not necessary and the Supreme Court can grant review even if the court of appeals’ mandate has issued. Without a stay of mandate, though, the party seeking cert runs the risk that the case could become moot in light of further proceedings in the trial court or compliance with the appellate decision. See Stern, et al., Supreme Court Practice 770 (8th ed. 2002). A court of appeals also can direct immediate issuance of the mandate without waiting for the generally prescribed time to expire. See Fed. R. App. P. 41(b). This ordinarily is done where either time is of the essence or there is no realistic prospect of further review. If immediate issuance of the mandate is ordered, the time to seek rehearing automatically lapses. See Johnson v. Bechtel Assocs. Prof. Corp., 801 F.2d 412 (D.C. Cir. 1986). To regain jurisdiction over the case after the mandate has issued, the court of appeals must recall the mandate. The Supreme Court recently confirmed the inherent authority of appellate courts to recall a mandate. See Calderon v. Thompson, 523 U.S. 538 (1998); id. at 567 (Souter, J., dissenting). See also Bell v. Thompson, 125 S. Ct. 2825 (2005). Recall of the mandate is entrusted to the discretion of the court of appeals and has been analogized to the district court’s broad authority to grant relief from judgment under Fed. R. Civ. P. 60. See Northern Calif. Power Agency v. NRC, 393 F.3d 223 (D.C. Cir. 2004); Burris v. Parke, 130 F.3d 782 (7th Cir. 1997). But the power is to be exercised “sparing[ly]” and “ in extraordinary circumstances” in view of ” ‘the profound interests in repose’ attaching to the mandate of a court of appeals.” Calderon, 523 U.S. at 550. Among the recognized grounds for recalling the mandate are clerical error, ambiguity in the mandate and fraud on the court. See 16 Wright, Miller & Cooper � 3938. Appellate courts can recall the mandate In its nature, this discretion of the appellate courts cannot be exhaustively catalogued. By way of illustration, the mandate has been recalled where the clerk’s office had erroneously dismissed an appeal as moot. See Northern Calif. Power Agency. Recall also has been ordered where the appeal became moot before the decision was released but the court learned of that fact only after the mandate had issued. See IAL Aircraft Holding Inc. v. FAA, 216 F.3d 1304 (11th Cir. 2000). More substantively, one court recalled its mandate to modify a prospective order against a government agency that had been undermined by subsequent decisions. See American Iron & Steel Inst. v. EPA, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914 (1978). For similar reasons, another court directed the recall of the mandate in a case where the prior vacation of an injunction was error in light of later rulings. See Zipfel v. Halliburton Co., 861 F.2d 565 (9th Cir. 1988). Likewise, recall of the mandate was ordered in a case in which a subsequent decision of the Supreme Court conflicted with the court of appeals’ earlier ruling on a boundary dispute involving an Indian reservation. See Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997), cert. denied, 522 U.S. 1107 (1998). And a mandate was recalled where an intervening Supreme Court decision established that the previous denial of a jury trial, in a case that had not yet been tried, was erroneous. See In re Union Nacional de Trabajadores, 527 F.2d 602 (1st Cir. 1995). Courts generally agree that a final monetary judgment should not be reopened because of a subsequent change in the substantive law (and particularly a change in state law). See McGeshick v. Choucair, 72 F.3d 62 (7th Cir. 1995), cert. denied, 517 U.S. 1212 (1996); DeWeerth v. Baldinger, 38 F.3d 1266 (2d Cir. 1994); but see Sargent v. Columbia Forest Products Inc., 75 F.3d 86 (2d Cir. 1996). However, where multiple suits arise out of the same occurrence and lead to divergent outcomes because the cases were tried at different times or in different courts, recall of the mandate has been more liberally allowed to reach fair and consistent results for the litigants. See Gondeck v. Pan American World Airways, 382 U.S. 25 (1965); Pierce v. Cook & Co., 518 F.2d 720 (10th Cir. 1975). Mark I. Levy is the chairman of the Supreme Court and appellate advocacy practice in the Washington office of Atlanta’s Kilpatrick Stockton.

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