Response Brief in Opposition to Petition for Writ of Mandamus

United States Court of Appeals
for the Ninth Circuit
In re:

SYRINGA GENERAL HOSPITAL, a political,
subdivision of the State of Idaho; et. al.,

Defendants/Petitioners,

vs.

UNITED STATES DISTRICT COURT FOR DISTRICT OF IDAHO,

Respondent,

JAMES A. LAURINO, M.D.,

Plaintiff/Real Party in Interest

 No. 02-74044

U.S.D.C. No.: CV-98-00439
RESPONDENT/REAL PARTY IN INTEREST, LAURINO’S, RESPONSE BRIEF IN OPPOSITION TO PETITION FOR WRIT OF MANDAMUS
I. Introduction

Respondent and real party in interest, James Laurino, M.D., the plaintiff in the trial court proceedings in this matter, offers the following in opposition to the Petition for Writ of Mandamus.

II. COUNTER-STATEMENT OF FACTS

The Petitioners’ Statement of “Relevant” Facts inappropriately includes argument and innuendo and attempts to re-argue and re-litigate underlying matters not relevant to the issues before this Court in these proceedings. The relevant facts and this Court’s judgment are set out in the Ninth Circuit’s published opinion, Laurino v. Syringa Gen. Hosp., 279 F.3d 750 (9th Cir. 2002). Below is set forth the relevant procedural history that followed this Court’s reversal of the district court’s order denying Dr. Laurino’s motion to reinstate his case, and the Court’s remand with directions to the district court:

1. On February 26, 2002, the Ninth Circuit issued its decision and mandate in Laurino v. Syringa Gen. Hosp., 279 F.3d 750 (9th Cir. 2002);

2. On February 28, 2002, the Petitioners (the defendants below) submitted to the district court a proposed order and an amended judgment dismissing Dr. Laurino’s case without prejudice (and affirming the award of attorneys’ fees). The proposed amended judgment read, in part, as follows: “All claims asserted by Plaintiff against the Defendants are dismissed without prejudice.” See, defendants’ proposed Amended Order and Amended Judgment, Exhibit A;

3. On March 12, 2002, Dr. Laurino’s attorney of record (John Meienhofer), contacted the district court, (1) objected to defendants’ proposed amended judgment; and, (2) requested a status conference. The status conference was requested to address the underlying statute of limitations issues (which for the first time in the record was being placed before the district court), and whether the district court would reinstate Dr. Laurino’s case. Further, Dr. Laurino’s attorney asked the district court if it would “like some additional research and oral argument regarding the proper procedure for moving forward with this matter in light of the Ninth Circuit’s recent ruling.” See, Letter of March 12, 2002 from Mr. John Meienhofer to the Honorable Edward J. Lodge, United States District Judge, Exhibit B;

4. On March 15, 2002, the Petitioners’ counsel sent a letter to the district court stating, inter alia, “the [defendants’] proposed Order and Judgment which I previously submitted and which dismisses the matter without prejudice are accurate, appropriate, and comply with the Ninth Circuit’s opinion.” See, Letter of March 15, 2002 from Mr. Kim C. Stanger to the Honorable Edward J. Lodge, United States District Judge, Exhibit C;

5. On April 26, 2002, the district court ordered the parties to submit briefing regarding “the Ninth Circuit Decision in this matter and whether the case should be reinstated in light of any statute of limitations problems that prevent the Plaintiff from pursuing his claim.” See, Order dated April 26, 2002, by United States District Court, United States District Judge, Edward J. Lodge, Exhibit D;

6. On May 20, 2002, Dr. Laurino filed his new Fed. R. Civ. P. 60(b) motion, supported by his “Memorandum in Support of Motion Under F.R.C.P. 60(b)(1) to Set Aside Order of Dismissal Without Prejudice [and] To Reinstate Case...” Exhibit E. On May 17, 2002, the Petitioners had filed their “Brief In Support Of Dismissal Without Prejudice Per the Court’s Order Dated 4/26/02.” Exhibit 6 to Petition for Writ of Mandamus;

7. On May 31, 2002, the Petitioners filed their “Response To Plaintiff’s [Rule 60(b)] Motion to Set Aside Order of Dismissal Without Prejudice [and] To Reinstate Case...” Exhibit 7 to Petition for Writ of Mandamus;

8. On June 13, 2002, the district court, in compliance with this Court’s mandate and opinion, entered the following order:

UPON REMAND from and as directed by the Opinion of the Ninth Circuit Court of Appeals dated January 30, 2002, IT IS HEREBY ORDERED as follows: 1. All claims asserted by Plaintiff against the Defendants are dismissed without prejudice. * * *.

Exhibit F. Further, the district court filed an Amended Judgment dated June 13, 2002, dismissing all claims asserted by the Plaintiff against the Defendants without prejudice. Exhibit G.

9. The district court, having dismissed Dr. Laurino’s case as directed by this Court, then considered Dr. Laurino’s new motion under Fed. R. Civ. P. 60(b) to “[S]et Aside Order of Dismissal Without Prejudice [and] To Reinstate Case...” filed on May 20, 2002. Exhibit E

10. On September 11, 2002, and after the district court had already dismissed Dr. Laurino’s case without prejudice in compliance with the opinion of the Ninth Circuit Court of Appeals, the district court had “[p]ending before the Court... Plaintiff’s Motion to Set Aside Order of Dismissal Without Prejudice [and] To Reinstate Case...” See Exhibit H. The district court, having considered the merits of the new Fed. R. Civ. P. 60(b) motion to reinstate the case, having reviewed and considered the “letter” and “spirit” of the Ninth Circuit’s published opinion (Laurino v. Syringa Gen. Hosp., 279 F.3d 750 (9th Cir. 2002)), and having received briefing from all parties, entered an order which in relevant part states as follows:

* * *. B. Plaintiff’s Motion to Set Aside Order of Dismissal Without Prejudice [and] To Reinstate the Case... is GRANTED IN PART... The motion is granted to the extent the case is HEREBY REINSTATED pursuant to the Ninth Circuit’s opinion. * * *.

See, Order dated September 10, 2002, and filed September 11, 2002, the United States District Court, United States District Judge, Edward J. Lodge, Exhibit H;

11. The Petitioners then filed a Petition for a Writ of Mandamus to compel the district court to again dismiss Dr. Laurino’s case without prejudice, knowing that the underlying statute of limitations period having run, a dismissal without prejudice is really a dismissal with prejudice - a sanction this Court has already rejected as too harsh under the circumstances. See Laurino, 279 F.3d at 754; and,

12. Currently, Dr. Laurino’s underlying district court case has been placed at “the back of the line” by the actions of the parties and by various orders of the district court. First, the parties stipulated to stay the underlying litigation. See, Stipulation to Stay Litigation dated September 26, 2002, Exhibit I. Second, the district court entered an order on October 2, 2002, granting the stipulation to stay the litigation in its entirety until the district court could either render a decision on the defendants’ motion to reconsider the reinstatement of Dr. Laurino’s case, or pending the defendants filing for a writ of mandamus. See Exhibit J. Finally, all proceedings were further stayed by district court order on November 13, 2002, until the petition for a writ of mandamus is decided by this Court. See Exhibit K. No trial date is on the district court calendar, and no discovery is being conducted by the parties. Dr. Laurino will have to begin anew his reinstated case at the conclusion of these proceedings.

III. COUNTER-STATEMENT OF ISSUES PRESENTED

1. Whether, by entering an order of dismissal without prejudice after remand, the district court had fully complied with this Court’s mandate, and was then free to entertain Dr. Laurino’s new Fed. R. Civ. P. 60(b) motion.

2. Whether, by reinstating Laurino’s case, the district court implemented both the letter and the spirit of this Court’s mandate, since to do otherwise would have amounted to a dismissal with prejudice, due to the statute of limitations bar to re-filing.

IV. ARGUMENT

A. Standard Of Review

Although the decision to issue a writ of mandamus is largely committed to the discretion of the issuing court, Citibank, N.A. v. Fullam, 580 F.2d 82, 90 (3d Cir. 1978), the writ is an extraordinary remedy, and should be issued only in exceptional circumstances. Delgrosso v. Spang & Co., 903 F.2d 234, 237 (3rd Cir.), cert. denied, 498 U.S. 967 (1990). Thus, the party seeking the writ has the burden of demonstrating a “clear and indisputable” right to the writ. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 98 L. Ed. 106, 74 S. Ct. 145 (1953); and, see also Delgrosso, 903 F.2d at 237. Courts have been understandably reluctant to issue writs because the action has “the undesirable consequence of making a district court judge a litigant.” Citibank, 580 F.2d at 86 (citing Kerr v. United States District Court, 426 U.S. 394, 402 (1976)).

Furthermore, granting the writ in less than exceptional circumstances could encourage piecemeal litigation that would frustrate the intent of Congress that appellate courts review only the final judgments of the district courts. See Delgrosso, 903 F.2d at 237. Traditionally, therefore, writs of mandamus have only been used to confine a district court to the lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it has a duty to do so. Delgrosso, 903 F.2d at 237 (citations omitted). To do otherwise “would severely jeopardize the supervisory role of the courts of appeals within the federal judicial system.” Citibank, 580 F.2d at 87.

Thus, the district court must be given a meaningful opportunity to follow the directive of the circuit court in resolving issues that arise following remand, and should not be reversed for failing to follow the mandate if the district court’s decision is within the scope of the remand. Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th Cir.), cert. denied, 510 U.S. 815 (1993).

B. The District Court Fully Complied With The Mandate By Dismissing Dr. Laurino’s Case, As Directed, Without Prejudice. The Court Was Then Free To Entertain The New Fed. R. Civ. P. 60(b)(1) Motion.

Dr. Laurino does not quarrel with the Petitioners’ contention that the district court was obliged to follow this Court’s mandate. This merely begs the question, however, of whether, by first dismissing the matter without prejudice as directed, the district court had, in fact, fully implemented the mandate, before the district court then considered and subsequently granted Dr. Laurino’s new Fed. R. Civ. P. 60(b) motion to set aside the dismissal. Dr. Laurino submits that the district court in no way exceeded its jurisdiction or contravened the express or implied directive of the Ninth Circuit by reinstating his case.

Since the purpose of the law of the case doctrine is to promote judicial finality, “it necessarily follows that the [doctrine] acts as a bar only when the issue in question was actually considered and decided by the first court.” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995). Therefore, once the mandate issues from the appellate court, “[t]hereafter, the [lower] court may consider and decide any matters left open by the mandate of [the] court.” In re Sanford Fork & Tool Co., 160 U.S. 247, 256, 40 L. Ed. 414, 16 S. Ct. 291 (1895); See also Edlin v. M/V Truthseeker, 69 F.3d 392, 393 (9th Cir. 1995); and, Herrington v. County of Sonoma, 12 F.3d 901, 904-5 (9th Cir. 1993) (“rule of mandate allows a lower court to decide anything not foreclosed by the mandate”).

In the case at bar, the Ninth Circuit essentially concluded on appeal that (1) the district court had abused its discretion under the circumstances by denying Dr. Laurino’s motion to vacate its order of dismissal with prejudice; and, (2) that dismissal of Dr. Laurino’s case with prejudice was too harsh a sanction in the first place. Accordingly, the Ninth Circuit reversed and remanded the matter to the district court “for entry of an order dismissing the action without prejudice.” Laurino, 279 F.3d at 754.

As the one court aptly observed:

“On remand, a trial court should attempt to put the parties back to the place where the error identified on appeal occurred, in order that the parties may proceed forward from that point as they would have had we ruled in the manner that the appellate court deemed would have been appropriate.”

In re Mazzocone, 183 B.R. 402, 409 (Bankr., E.D. Pa. 1995), aff’d, 200 B.R. 568 (E.D. Pa. 1996).

Thus, following the remand in the case at bar, the district court did precisely what it had been instructed to do, it entered an order of dismissal without prejudice. Having done so, the district court was then free to entertain Dr. Laurino’s new motion to vacate the dismissal of his case and for reinstatement, pursuant to Fed. R. Civ. P. 60(b)(1). And, in view of the fact that the Ninth Circuit had determined the district court had erred previously in denying the motion to vacate, it was both logical and appropriate that the district court grant the Respondent’s motion the second time around.

For the district court to do otherwise would have been to ignore this Court’s opinion, and would have also failed to put Dr. Laurino in the same position he would have been had the district court “ruled in the manner that the appellate court deemed would have been appropriate” in the first place. In re Mazzocone, 183 B.R. at 409.

Thus, Dr. Laurino respectfully submits there is no basis for the issuance of a Writ of Mandamus, given the fact that the district court has already fully implemented this Court’s mandate.

C. Assuming, Arguendo, That By Reinstating Dr. Laurino’s Case The District Court Was Interpreting The Mandate, The Court Nevertheless Implemented Both The Letter And The Spirit Of The Court’s Mandate.

The purpose of the mandate is to communicate the judgment of the appellate court to the lower court. The mandate includes both the judgment and the court’s opinion. Fed. R. App. P. 41(a). Thus, the lower court need not read the mandate in a vacuum. Exxon Chemical Patents, Inc. v. The Lubrizol Corp., 137 F.3d 1475 (Fed. Cir.), cert. denied, 525 U.S. 877 (1998); and, Jerome v. Farmers Produce Exchange, 826 S.W.2d 3, 7 (Mo. App. 1991). Rather, the lower court has the opinion of the appellate court as a device to aid the court in interpreting the mandate. In re Sanford Fork & Tool Co., 160 U.S. 247 (1895); Board of Regents for Southwest Mo. State Univ. v. Harriman, 857 S.W.2d 445, 449 (Mo. App. 1993); and, Water Technologies Corporation v. Calco Ltd., 694 F. Supp. 1328, 1330 (ND Ill. 1988).

A mandate, moreover, should be interpreted in accordance with the context of the proceedings, and if possible, so as not to cause injustice. Supervisors v. Kennicott, 94 U.S. 498, 499 (1877). Both the letter and the spirit of the mandate are to be implemented, “taking into account the appellate court’s opinion and the circumstances it embraces,” so as to reach the result contemplated by the appellate court. Delgrosso, 903 F.2d at 240, quoting Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943 (3d Cir. 1985); and, Pelletier v. Zweifel, 987 F.2d 716, 718 (11th Cir.), cert. denied, 510 U.S. 918 (1993). In fact, an order issued by the district court after remand may even deviate from the mandate “if it is not counter to the spirit of the circuit court’s decision. Lindy Pen Co., 982 F.2d at 1404.[1]

As the Petitioners correctly point out, now that the district court has reinstated Dr. Laurino’s case, it is as if the case had never been dismissed. On the other hand, had the district court denied the Respondent’s new motion for reinstatement, Dr. Laurino could not simply re-file his case, since it would now be barred by the statute of limitations. See Petitioners’ Brief at page 9. Consequently, had the district court either denied the new Fed. R. Civ. P. 60(b)(1) motion, or declined to hear the motion at all, the district court’s entry of the order of dismissal without prejudice would have amounted, in effect, to a dismissal with prejudice.

The gist of this Court’s holding, however, was that dismissal with prejudice was too harsh a sanction under the circumstances, and the district court had erred in not vacating its order of dismissal with prejudice. Instead, had the district court granted the motion to vacate when it was originally made in December 1999, Dr. Laurino could have proceeded with the merits of his reinstated case. Consequently, the Ninth Circuit’s decision to remand the case for entry of an order of dismissal without prejudice was made in the broader context of the overall conclusion that Dr. Laurino should be entitled to proceed with his claims against the Petitioners. To now deny Dr. Laurino that opportunity following the Ninth Circuit’s reversal of the district court would render the appeal a mere exercise in futility, by denying the Respondent the substantive benefit of the Ninth Circuit’s decision.

The Petitioners point out that Dr. Laurino argued on appeal for reinstatement of his case, and instead, the Ninth Circuit remanded the case for dismissal without prejudice. And, the Petitioners argue, the Court’s reliance in its opinion on Ash v. Cvetkov, 739 F.2d 493 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985), demonstrates the Court concluded that dismissal without prejudice was the appropriate sanction regardless of whether the statute of limitations might have run on some of Dr. Laurino’s claims. Therefore, the Petitioners maintain, by reinstating the Respondent’s case, the district court “violated and nullified” the mandate of the Ninth Circuit. See Petitioners’ Brief at pages 10-13.

To begin with, however, there is no indication that, before now, this Court was even aware of the statute of limitations issue. The issue was not discussed in the parties’ briefs to the Court, and is not specifically mentioned anywhere in the Ninth Circuit opinion. So far as the record reveals, in fact, the statute of limitations issue was only brought to the district court’s attention for the first time after the matter was remanded following appeal.

Therefore, without presuming to know the Court’s mind on this subject, Dr. Laurino submits that, if the Ninth Circuit had intended that his case be effectively dismissed with prejudice, it was an entirely pointless exercise to reverse and remand the matter, when the Court could have achieved the same result by simply affirming the district court. Furthermore, there is no way to reconcile the Ninth Circuit’s holding that dismissal with prejudice was too harsh a sanction, with the Petitioners’ contention that the mandate prohibited the district court from subsequently reinstating Dr. Laurino’s case in order to avoid the same harsh result.

The Petitioners also contend that, by citing as authority for its decision Ash v. Cvetkov, this Court demonstrated it “knew and understood that dismissal might result in statute of limitations problems’” for Dr. Laurino. See Petitioners’ Brief at page 13. To support this contention, the Petitioners quote at length from Ash, including a passage wherein the Ash court acknowledges that one of the inherent dangers of dismissal without prejudice is the statute of limitations. See Ash, 739 F.2d 496-7, quoted at page 13 of Petitioners’ Brief.

However, although the Ninth Circuit did cite in its opinion to Ash, the Court did not quote the passage to which Petitioners refer. Furthermore, Ash is clearly distinguishable from the case at bar. In Ash, unlike here, nothing prevented the plaintiff from refilling his case. This was a key factor in the decision to affirm the district court’s dismissal without prejudice in that case:

Second, the dismissal of this case was without prejudice giving the plaintiff an opportunity to return and prosecute his claims another day. * * *. A relatively brief period of delay is sufficient to justify the district court’s sending a litigant to the back of the line.

Ash, 739 F.2d at 496-7.

Again, without purporting to know the Ninth Circuit’s mind on the subject, it would appear the Court concluded that, under the circumstances, the appropriate sanction was to require Dr. Laurino to re-file his case and go “to the back of the line.” Ash, 739 F.2d at 497. Accordingly, unaware of the statute of limitations bar, the Court simply remanded the case for a dismissal without prejudice.[2]

The Petitioners argue that, since Dr. Laurino did not raise any new or different arguments in his new Fed. R. Civ. P. 60(b) motion, and since this Court had already considered those issues and determined that the appropriate remedy was dismissal without prejudice, the Respondent could not “re-litigate” the same issues on remand, citing Donovan v. Burlington Northern, Inc., 781 F.2d 680 (9th Cir. 1986). See Petitioners’ Brief at pages 17-19.

Again, however, this argument ignores the fact that the Ninth Circuit was apparently unaware of the statue of limitations issue, which was first brought to the district court’s attention, in fact, after remand. The Donavan case is also distinguishable from the case at bar. In Donavan, the appellate court had remanded the case for the determination of contempt sanctions as of a certain date upon which the appellate court had determined the contempt had occurred. The district court, however, conducted additional proceedings to determine when the contempt had occurred - the precise issue the Ninth Circuit had already decided.

Here, unlike Donovan, where the appellate court had already ruled on the precise date when the contempt at issue had occurred, it cannot be said that the effect of the statute of limitations was either expressly or impliedly taken into account in the Ninth Circuit’s decision. In fact, unlike Donovan, the issue was not even specifically mentioned by the Court. Rather, it was a new issue raised for the first time after remand.

Likewise, the Petitioners’ reliance upon Stamper v. Baskerville, 724 F.2d 1106 (4th Cir. 1984), is misplaced. Stamper involved an appeal from the district court’s denial of a habeas corpus petition that included claims for which the petitioner had not yet exhausted all of his state court remedies. None of the claims were denied by the district court, however, for failure to exhaust state remedies, but instead the entire petition was denied on the merits.

The appellate court reversed and remanded the case, with instructions to the district court to dismiss the entire petition for failure to exhaust state court remedies. The appellate court based its opinion on a Supreme Court decision, which had been entered shortly after the district court’s ruling, that required the dismissal of habeas petitions containing both exhausted and unexhausted claims. In other words, until Stamper first exhausted his state court remedies on all of his claims, the district court lacked jurisdiction, and therefore, could only dismiss the matter.

On remand, instead of entirely dismissing the petition as instructed, the district court in Stamper accepted the state’s waiver of all exhaustion requirements. The district court then reinstated its prior order denying the habeas petition on the merits. By doing so, the appellate court held that the district court had contravened the mandate, stating:

Compliance with an order to relinquish jurisdiction necessarily precludes the lower court from taking any further action other than dismissal, for to do so would involve retaining jurisdiction.

Stamper, 724 F.2d at 1108. Accordingly, the appellate court vacated the district court’s judgment and remanded the matter again for the district court to dismiss the petition. Stamper, 724 F.2d at 1107-8.

In the case at bar, the district court dismissed Dr. Laurino’s case without prejudice, precisely as mandated. Dismissal without prejudice did not divest the district court of jurisdiction or preclude the court from hearing Dr. Laurino’s new Fed. R. Civ. P. 60(b) motion. By contrast, in Stamper, the district court simply refused to comply with the mandate to entirely divest itself of jurisdiction.

Moreover, by reversing the district court’s denial of the habeas petition in Stamper, the net effect of the appellate court’s decision was to allow the petitioner to return to the state court and continue to pursue his remedies there. Similarly, in the case at bar, the district court’s reinstatement of Dr. Laurino’s case allows him to pursue his claims against the Petitioners, although he is essentially starting over from a procedural standpoint. That result is entirely consistent with this Court’s opinion.

In conclusion, therefore, the district court followed the letter of this Court’s mandate when it entered an order dismissing Dr. Laurino’s case without prejudice. The district court followed the spirit of the mandate when it subsequently reinstated the case, to avoid the harsh result of the statute of limitations bar to re-filing.

D. Even Assuming, Arguendo, That The Ninth Circuit Was Aware Of The Statute Of Limitations Issue, The District Court Did Not Violate The Court’s Mandate When It Reinstated Dr. Laurino’s Case.

As the district court accurately observed in its September 11, 2002, Order reinstating Dr. Laurino’s case:

In compliance with the Ninth Circuit’s mandate this Court entered an order dismissing the case without prejudice and continuing the award of attorney fees. As to the Plaintiff’s Rule 60(b) motion, the opinion fails to direct this Court’s action on that specific order. The body of the Ninth Circuit’s opinion, however, held that this Court erred in denying the motion. Thus, while this Court may disagree with the Ninth Circuit’s findings, the Court cannot ignore that the “spirit” of the Ninth Circuit’s order determined that this Court erred in denying Plaintiff’s Rule 60(b) motion.

See, Order dated Sept. 10, 2002, and filed Sept. 11, 2002, Exhibit H.

Stated another way, the Ninth Circuit did not direct what action the trial court could or should take following entry of the order of dismissal without prejudice. Consequently, when the district court was presented with the Respondent’s new Fed. R. Civ. P. 60(b) motion, the only way it could rule consistent with the “spirit” of the Ninth Circuit’s opinion was to grant the new motion to reinstate the case, given this Court’s holding that the district court had previously erred in denying the motion.

Thus, even assuming this Court was somehow aware of the statute of limitations issue, since the mandate did not direct the district court how to proceed once a dismissal without prejudice was entered, not only was the district court free to entertain Dr. Laurino’s new motion, but reinstatement of his case was the only way the district court could put Dr. Laurino back in the same position he would have been in, had the motion been granted the first time around.

V. CONCLUSION

In summary, the district court fully complied with the mandate by entering an order of dismissal in this matter without prejudice. The mandate did not prescribe in any way what, if any, action the district court could or should take with regard to that order after it was entered. Regardless, the district court fulfilled both the “letter” and the “spirit” of this Court’s mandate when it reinstated the Respondent’s case.

Accordingly, Dr. Laurino respectfully requests that the Petition for a Writ of Mandamus be denied.

RESPECTFULLY submitted this 31st day of January 2003.

ROBERT A. ZIELKE, WSBA #21220
Attorney for Respondent/Real Party in Interest
James A. Laurino, M.D.

KENNETH W. HART, WSBA #15511
Attorney for Respondent/Real Party in Interest
James A. Laurino, M.D.

[1]

The application of the foregoing general concepts was explained by the court as follows in Exxon Chemical Patents, Inc.:

Interpretation of an appellate mandate entails more than examining the language of the court’s judgment in a vacuum. See Fed. R. App. P. 41(a) (appellate court’s mandate includes both the judgment and the opinion of the court). As an initial matter, every appellate court judgment vests jurisdiction in the district court to carry out some further proceedings. In some cases, those further proceedings may be purely ministerial, as when a judgment for the plaintiff is reversed and the only matters that remain for the district court are to dismiss the complaint and enter the judgment in the docket. Frequently, however, the disposition of a case in the court of appeals will require the district court to undertake more significant proceedings. In either case, the nature of the district court’s remaining tasks is discerned not simply from the language of the judgment, but from the judgment in combination with the accompanying opinion.

Exxon Chemical Patents, Inc., 137 F.3d at 1483 (citations omitted).

[2]

The Petitioners, in addition argue that, if the Ninth Circuit had intended to remand the case for reinstatement, as the Respondent requested, it would have issued a different mandate; consequently, Dr. Laurino’s remedy was to move this Court for reconsideration of its mandate, citing as authority Hilton Int’l Co. v. Union de Trabajadores, 833 F.2d 10 (2d Cir. 1987). See, Petitioners’ Brief at pp. 14-15. The Petitioners’ reliance upon Hilton is misplaced, however, since that case discussed a motion for reconsideration of a district court’s dismissal, not reconsideration of an appellate court mandate. In fact, it is inappropriate to file a motion seeking clarification of an appellate court’s mandate. Instead, a writ of mandamus is the correct procedure to follow. Vendo Co. v. Lakto-Vend Corp., 434 U.S. 425 (1978). In any event, the issue is now squarely before the Court anyway on this Petition.