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S18 | MONDAY, AUGUST 25, 2014 | Court of Appeals and Appellate Practice
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APPELLATE PRACTICE: DECISIONS

By Gregory Silbert
And Kami Lizarraga

he Appellate Mandate:

A Critical Step

W

hen a federal court of appeals appellate decision is non-final and, some
rules in your favor, your irst courts have held, is not effective or enforce-
instinct may be to open a bottle able. The Advisory Committee Notes to Rule
of champagne. But you might want to keep it 41 allude to the mandate’s role in inality,

on ice a little longer. Until the mandate issues, observing that “[a] court of appeals’ judg-
the appellate court’s decision is non-inal and ment or order is not inal until issuance of
you rely on it at your own risk.
the mandate.” Fed. R. App. P. 41(c), 1998 Adv.
The mandate is an often ignored step in Comm. Note (emphasis added). Circuit prec-
appellate procedure, but one of potentially edents equate inality in this context with
great signiicance. Understanding the man- enforceability.
date can be critical for determining when an For example, the Ninth Circuit has
appellate court has jurisdiction and whether explained that “[n]o opinion of this circuit
an appellate decision supplies the law of the becomes inal until the mandate issues.” Natu-

case.
ral Res. Defense Council v. Cnty. of Los Ange-
les, 725 F.3d 1194, 1203 (9th Cir. 2013). Thus,
Substantive Efects of the Mandate
“[a] court of appeals may modify or revoke
its judgment at any time prior to issuance
The Federal Rules of Appellate Procedure of the mandate, sua sponte or by motion of
provide little guidance about the function of the parties.” United States v. Foumai, 910 F.2d
the mandate. Rule 41 lays out when the man- 617, 620 (9th Cir. 1990). As a result, “[u]ntil
date issues and what it contains, but says the mandate issues, an opinion is not ixed

nothing about what it does. Filling this gap, as settled Ninth Circuit law, and reliance on
the federal courts of appeals have explained the opinion is a gamble.” Natural Res. Defense
that the mandate has three important con- Council, 725 F.3d at 1203 (emphasis added);
sequences.
accord Carver v. Lehman, 558 F.3d 869, 878
Transferring Jurisdiction. First, as the n.16 (9th Cir. 2009). In short, “the mandate is
Second Circuit has noted, “[t]he issuance of required to enforce the order” of the court of
the mandate from this Court terminate[s] this appeals. Foumai, 910 F.2d at 620.
Court’s jurisdiction.” United States v. DiLapi, The Eleventh Circuit likewise has held that
651 F.2d 140, 144 (2d Cir. 1981). Speciically, when “the panel’s mandate had not issued, 180, 186 (2d Cir. 2010). Despite the Sixth Cir-

“[t]he effect of the mandate is to bring the the panel’s decision was never the ‘law of the cuit’s decision striking down the rule, the
proceedings in a case on appeal in our Court case.’” Key Enters. of Del. v. Venice Hosp., 9 Second Circuit concluded that, “in light of
to a close and to remove it from the jurisdic- F.3d 893, 898 (11th Cir. 1993). Thus, “[p]ending the Sixth Circuit’s stay of mandate, the Final
tion of this Court, returning it to the forum issuance of the mandate, the district court’s Rule remains in force.” Id. at 187; see also Dor
whence it came.” Ostrer v. United States, 584 judgment . remain[s] intact.” Id. (emphasis v. Dist. Dir., I.N.S., 891 F.2d 997, 999-1000 (2d
F.2d 594, 598 (2d Cir. 1978). The mandate thus added). And “[d]uring [a] stay of the panel’s Cir. 1989) (when the court afirmed a depor-
reverses the transfer of jurisdiction brought mandate . the panel’s decision [i]s inopera- tation order “but then stayed the issuance
about by the iling of a notice of appeal. An tive.” Id. Similarly, the Fourth Circuit instructs of its mandate,” it was “this Court’s stay of
appeal divests the district court of jurisdic- in its online Appellate Procedure Guide that mandate alone [that] has kept [petitioner]

tion over the judgment or order appealed “[t]he court of appeals issues a formal man- from being deported”).
from and establishes jurisdiction in the court date on the date its decision takes effect.” The other side of the coin, of course, is
of appeals. See, e.g., Griggs v. Provident Con- Fourth Circuit website, “Appellate Procedure that the appellate court’s decision is inal
sumer Discount, 459 U.S. 56, 58 (1982) (per Guide: Mandate” (emphasis added).1 In other once the mandate issues. See, e.g., Ostrer, 584
curiam). The mandate restores jurisdiction words, the mandate, not the decision, is the F.2d at 598 (holding, in the criminal context,
in the lower court.
effective instrument.
Establishing Law of the Case. The man- As a result, until the mandate issues, the
date’s second function is lesser known but governing law may be quite different from
GREGORY SILBERT is a partner in Weil, Gotshal &
arguably more important, at least in the what an appellate decision declares it to be. Manges’ appellate practice group. KAMI LIZARRAGA
sometimes heady days immediately fol- For example, in Peconic Baykeeper v. Suf-
lowing an appellate decision: The mandate folk County, the Second Circuit considered is an associate in the irm’s appellate and complex
renders the court of appeals’ decision inal the status of an EPA Final Rule, after “the commercial litigation practices.
and ixes it as law of the case. Conversely, Sixth Circuit vacated the [] Final Rule” but
unless and until the mandate issues, the
“stayed issuance of the mandate.” 600 F.3d