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that “[t]he practical effect of the mandate’s Content and Timing. For all its force, the for rehearing en banc, or motion for stay of rent, 709 F.3d 140, 142 (2d Cir. 2013) (“Our

issuance, at least with respect to appellants mandate is usually a simple document. Rule mandate, stays the mandate until disposition power to recall a mandate ‘can be exercised
facing criminal sentences, is to authorize 41 provides: “Unless the court directs that a of the petition or motion, unless the court only in extraordinary circumstances” and
the executive branch to insure compliance formal mandate issue, the mandate consists of orders otherwise.”). The party seeking a “is one of last resort, to be held in reserve
with whatever sentence was imposed”); Con- a certiied copy of the judgment, a copy of the stay “must show that the certiorari petition against grave, unforeseen contingencies.’”)
cept Design Elec. & Mfg. v. Duplitronics, 104 court’s opinion, if any, and any direction about would present a substantial question and that (quoting Calderon); Sargent v. Columbia
F.3d 376, at *4 (Fed. Cir. 1996) (Table) (“our costs.” Fed. R. App. P. 41(a). In the Second there is good cause for a stay.” Fed. R. App. Forest Products, 75 F.3d 86, 89 (2d Cir. 1996)
decision on all of the issues in the appeal Circuit, “[t]he mandate is a copy of the order P. 41(d)(2)(A). In the Second Circuit, “[e]ven (“The reason for parsimony in the exercise
decided January 17 . was inal and law of or judgment that terminates the case with if the movant makes the required showing, of our power to recall a mandate is the need
the case in light of our March 6 mandate”); the word ‘Mandate’ inscribed”; “[t]here is no [the court’s] decision to grant the stay is a to preserve inality in judicial proceedings.”).

United States v. Henry, 709 F.2d 298, 313-14 separate document.” “How to Appeal a Civil matter of discretion.” Khulumani v. Barclay There is no time limitation on a motion to
(5th Cir. 1983) (noting that “a sentence long Case to the United States Court of Appeals Nat’l Bank, 509 F.3d 148, 152 (2d Cir. 2007) recall the mandate. See Sargent, 75 F.3d at 89
ago imposed [was] made inal on appeal by for the Second Circuit” at 14.2
(citing 20A Moore’s Federal Practice §341.14 (“we . have the power to reopen a case at
a mandate of this court”). Rule 41 makes this “The court’s mandate must issue 7 days (3d ed. 1997)).
any time”).
corollary explicit: “The mandate is effective after the time to ile a petition for rehear- If the Court of Appeals denies the motion While a motion to recall the mandate is
when issued.” Fed. R. App. P. 41(c). “[A]t that ing expires,” assuming no such petition is for a stay, the mandate will issue seven days uncommon under any circumstances, it is
time the parties’ obligations become ixed” iled. Fed. R. App. P. 41(b). The deadline for later. Fed. R. App. P. 41(b). On the other hand, most frequently iled in diversity cases when
by the appellate court’s judgment, Fed. R. a rehearing petition is “14 days after entry if the court grants the motion, the stay “must a decision was based on a prediction of how

App. P. 41(c), 1998 Adv. Comm. Note, and of judgment,” Fed. R. App. P. 40(a)(1) (panel
not exceed 90 days, unless the period is
a state’s high court would apply governing
no additional action is necessary to enable state law, and the relevant
interested parties to act in accord with it. state court subsequently
The mandate’s “effectiveness is not delayed rules to the contrary. The
until receipt of the mandate by the trial court Rule 41 lays out when the mandate issues and what it contains, Second Circuit has identi-
or agency, or until the trial court or agency ied four factors to deter-
acts upon it.” Id.
but says nothing about what it does.
mine whether a recall of the
“Mandate Rule” on Remand. By ixing mandate is warranted: “(1)
the governing law, the mandate deinitively Filling this gap, the federal courts of appeals have explained that the whether the governing law

circumscribes the actions the district court mandate has three important consequences.
is unquestionably inconsis-
is permitted to take on remand. This so-called tent with the earlier deci-
“mandate rule is a branch of the law-of-the- sion; (2) whether the mov-
case doctrine.” Burrell v. United States, 467 ant brought to the court’s
F.3d 160, 165 (2d Cir. 2006). “This rule holds rehearing), Fed. R. App. P. 35(c) (en banc extended for good cause or unless the par- attention that a dispositive decision [contrary
‘that where issues have been explicitly or rehearing), which typically occurs on the ty who obtained the stay iles a petition for to the mandate] was pending in another court;
implicitly decided on appeal, the district same day that the court’s opinion is entered the writ and so notiies the circuit clerk in (3) whether there was a substantial lapse in
court is obliged, on remand, to follow the on the docket, see Fed. R. App. P. 36(a)(1) writing within the period of the stay.” Fed. time between the issuing of the mandate
decision of the appellate court.’” Id. (quoting (the clerk must enter judgment “after receiv- R. App. P. 41(d)(2)(B). In the latter case, the and the motion to recall the mandate; and

United States v. Minicone, 994 F.2d 86, 89 (2d ing the court’s opinion”). Thus, the mandate stay will continue “until the Supreme Court’s (4) whether the equities ‘strongly favor’
Cir. 1993)). The “rule that the district court’s generally will issue 21 days after the date on inal disposition.” Id. If the Supreme Court relief.” Christian Louboutin, 709 F.3d at 142;
authority on remand is limited to those issues which the court enters judgment, though the denies the certiorari petition, the Court of cf. McGeshick v. Choucair, 72 F.3d 62, 63-65
left open by the mandate is a irm one and court may direct that the mandate should Appeals “must issue the mandate immedi- (7th Cir. 1995) (denying motion to recall man-
rigidly binds the district court.” Id.; see also issue sooner.
ately.” Fed. R. App. P. 41(d)(2)(D). A motion date, despite subsequent controlling state
City of Cleveland, Ohio v. Fed. Power Comm’n, Staying the Mandate. The mandate is to stay the mandate must be iled, if at all, court authority, in light of “the importance
561 F.2d 344, 346 (D.C. Cir. 1977) (the lower stayed automatically by the timely iling of before the mandate issues. See Meredith v. of inality in judicial proceedings”).
court “is without power to do anything which either a petition for panel rehearing or a peti- Fair, 306 F.2d 374, 376 (5th Cir. 1962) (“when

is contrary to either the letter or spirit of the tion for rehearing en banc until the petition is a mandate has been issued, it is logically and Conclusion
mandate construed in the light of the opinion decided, unless the court orders otherwise. legally too late to stay it”).
of (the) court deciding the case”).
Fed. R. App. P. 41(d)(1). In addition to the Recalling the Mandate. It is theoretical- Because of the rarity of Supreme Court
automatic stay resulting from a rehearing ly possible, though unlikely, that a court of review, a decision by the court of appeals
Procedural Aspects of the Mandate
petition, a party may file a motion in the appeals could recall a mandate after it issues. is often viewed as the last word in federal
court of appeals for a “stay [of] the mandate “[T]he courts of appeals are recognized to litigation. But the court of appeals’ decision is
In many cases, the mandate issues routine- pending the iling of a petition for a writ of have an inherent power to recall their man- not inal unless and until the mandate issues.
ly and with little fanfare. But in some cases, it certiorari in the Supreme Court.” Fed. R. App. dates.” Calderon v. Thompson, 523 U.S. 538,
will be crucial to know as of a particular date P. 41(d)(2)(A). The iling of this motion also 549 (1998). “In light of the profound interests • ••
••••••••••••••••••••••••••
whether an appellate decision has become results in a brief automatic stay; it temporarily in repose attaching to the mandate of a court 1. Available at http://www.ca4.uscourts.gov/Appel-
inal or which court has jurisdiction. For those stays the mandate until the motion is decided, of appeals, however, the power can be exer- lateProcedureGuide/Decision___Post_Decision/APG-
watching closely for a mandate to issue, it is again unless the court orders otherwise. See cised only in extraordinary circumstances.” mandate.pdf (last visited July 25, 2014).
important to know what to expect and when Fed. R. App. P. 41(d)(1) (“The timely iling Id. at 550 (internal quotation marks omitted); 2. Available at http://www.ca2.uscourts.gov/clerk/ case_filing/appealing_a_case/pdf/How%20to%20Ap-
to expect it.
of a petition for panel rehearing, petition
see also Christian Louboutin v. Yves St. Lau-
peal%20a% 20Civil%20Case.pdf (last visited July 28, 2014).

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