Appellate Mandate Rule Requires Strict Compliance

District courts cannot disregard a specific mandate on remand, regardless of whether the court believed the appellate court had erred or had insufficiently explained its rationale. A federal appellate court reasoned that its mandate established the law of the case and prevented an issue it decided from being relitigated on remand. ABA Litigation Section leaders say this decision highlights the important balance between zealous advocacy and the nature of judicial hierarchy.

District Court Ignores Appellate Court Mandate on Remand

In United States v. Dutch, the defendant pleaded guilty to federal firearms crimes. At the defendant’s first sentencing hearing, the government argued that the defendant’s sentence should be enhanced under the Armed Career Criminals Act (ACCA) because of previous criminal firearms convictions. However, the district court agreed with the defendant, concluding that the ACCA should not govern because the government had not met its burden in proving the defendant’s previous crimes occurred on separate occasions.

On appeal, the U.S. Court of Appeals for the Tenth Circuit agreed with the federal government, holding that the ACCA applied because the government had proved that the defendant’s crimes had occurred on separate occasions. The Tenth Circuit reversed and remanded for resentencing in accordance with the ACCA. The defendant moved for an en banc review, as well as relief before the Supreme Court of the United States, both of which were denied.

Despite the Tenth Circuit’s findings, on remand, the defendant again argued that the ACCA should not govern. The district court agreed with the defendant, concluding that the argument against the ACCA enhancement was not “fully-developed and not fully addressed.” The federal government challenged the district court’s resentencing, arguing that the district court violated the Tenth Circuit’s directions for resentencing on remand.

Appellate Court’s Express Instructions Limit District Court Discretion

The Tenth Circuit reversed the district court’s decision. It explained that the district court went beyond the scope of the mandate rule, which requires district courts to strictly comply with instructions given to them. A decision by the appellate court establishes the law of the case and prevents an issue decided by it from being relitigated on remand, the Tenth Circuit said. When remanding for resentencing, the Tenth Circuit stated there is a presumption in favor of general remands, allowing a district court to expand its considerations absent an express limitation by the appellate court. However, because the appellate court gave specific instructions to the district court, that limited the court’s discretion on remand.

Generally, appellate courts look to the previous mandate’s language to determine whether the district court’s discretion was limited by the prior appellate panel, the Tenth Circuit noted. However, when a district court is faced with exceptional circumstances, several exceptions to the mandate rule may apply: “a dramatic change in controlling legal authority, significant new evidence that was not obtainable earlier through due diligence, or a blatant error from the prior sentencing decision that would result in serious injustice if left uncorrected.” None of the exceptions applied, according to the appellate court.

The Tenth Circuit concluded that the mandate rule required the district court to strictly comply with its instructions, which bound the district court to its determination that the ACCA governed the defendant’s sentencing. The appellate court further explained that the district court erred because lacked any discretion to disregard the appellate findings, which were a specific mandate and not a general remand.

Noting that appellate courts are not infallible, the Tenth Circuit pointed out that recourse still exists in the event of an appellate error. It explained, “[w]e have processes in place to ensure parties can have errors corrected; petitions for panel rehearings, rehearings en banc, and writs of certiorari to the United States Supreme Court.” That process means that even if a district court disagrees with a mandate, or thinks it is insufficiently explained, it cannot disregard a specific mandate, according to the appellate court.

Zealous Advocacy in Perceived Wrongs

“As a general rule, district judges need to follow mandates from the appellate courts, otherwise litigants will bounce between the courts on decisions that the appellate courts have already addressed and decided,” observes Kenneth M. Klemm, New Orleans, LA, cochair of the Litigation Section’s Trial Evidence Committee. “The system works properly when the appellate courts make a decision, and the district court adheres to that decision,” he adds.

“The practical risk of the district court ignoring an appellate court mandate is being chastised in a published opinion, given the government could once again pursue an appellate remedy,” cautions Darryl A. Goldberg, Chicago, IL, chair of the Trial Subcommittee of the Section’s Criminal Litigation Committee. “While some could argue that urging the district court to ignore the Tenth Circuit’s mandate was ethically inappropriate, as long it was done in good faith, with a belief that one of the carved-out exceptions or exceptional circumstances existed, it would be better characterized as zealous advocacy,” adds Goldberg.

“As long as you are cognizant of being transparent to the court, being professional and ethical while making arguments for your clients as well in the pleadings you file, that is considered zealous advocacy,” Klemm concludes.