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Mandate or Remand

A mandate is the official notice of action of the appellate court given to the lower court, advising it of the action of the appellate court which directs the lower court to recognize, obey, and execute the judgment of the appellate court.[i] Generally, a mandate is not considered as a judgment, but only constitutes an official communication of the appellate court to the subordinate court.  However, an appellate court retains control over an appeal until it issues a mandate and the decision is not final until a mandate is issued.  Thus, the lower court order remains in effect until the mandate is issued.[ii]

A mandate is effective when it is issued.  The duty to issue a mandate is the responsibility of the court clerk who must execute certain established procedures which themselves constitute the issuance of the mandate.  The effect of the mandate is to bring the proceedings in a case on appeal in the court of appeals to an end and to remove it from the jurisdiction of the court.[iii] The timely filing of a petition for motion for stay of mandate stays the mandate until disposition of the petition or motion, unless the court orders otherwise.[iv]

A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court.  The motion must be served on all parties and must show that the certiorari petition will present a substantial question and that there is good cause for a stay.  However, generally the stay must not be extended more than 90 days.[v] Proceedings in the trial court on remand have to be in accordance with both the mandate of the appellate court and the result contemplated in the appellate opinion.[vi]

If a reviewing court remands a cause with specific instructions, they must be followed exactly.  Whereas, if specific instructions are not given, the trial court can examine the opinion of the court and determine proper and consistent proceedings.  Finally, the correctness of an action by the trial court on remand is normally determined from the mandate of the appellate court.[vii]

The immediate issuance of a mandate generally precludes a motion for rehearing.  When a case is once decided by an appellate court on appeal and remanded to the trial court, whatever was before the appellate court, and disposed of by its decree, is considered as finally settled under the mandate rule.[viii] The rule of mandate requires a lower court to act on the mandate of an appellate court without any variance or examination.[ix]

The trial court proceedings on remand must be in accordance with the mandate and the result contemplated in the appellate court’s opinion.  Therefore, a trial court must follow the mandate of the appellate court.[x] Moreover, a lower court cannot give any further relief beyond the scope of the mandate and also it cannot review the mandate.  Any proceedings on remand that seems to be contrary to the directions contained in the mandate will be considered as null and void.[xi]

However, under some extra ordinary circumstances, a court can deviate from the mandate of the appellate court.  An intervening ruling by the state Supreme Court can be considered as an extraordinary circumstance.  A trial court on remand can enforce its judgment as modified by the appellate court.  So also, a federal appellate court has the power to issue mandamus to a district judge to compel compliance with its mandate.[xii] However, even after the issuance of a mandate, a federal court of appeals has the power to set aside a mandate that was procured by fraud or to preserve the integrity of the judicial process.[xiii]

Whereas, the term remand can be used to describe an action by an appellate court in which it remands, or sends back, a case to the trial court or lower appellate court for action.  It is completely court’s discretion to decide the proceedings and whether or not a particular case must be remanded.  It is not necessary for an appellate court to specify the nature of the further proceedings.  A trial court can make any order or direction on remand but not inconsistent with decision of appellate court.[xiv] While remanding for further proceedings, an appellate court generally have the discretion to order a new trial on all or some issues.  If a case is tried under an incorrect law, the appropriate action will be reversal and remand for new trial.

[i] Tex. Parks & Wildlife Dep’t v. Dearing, 240 S.W.3d 330 (Tex. App. Austin 2007)

[ii] Bridge C.A.T. Scan Associates v. Technicare Corp., 710 F.2d 940 (2d Cir. N.Y. 1983)

[iii] United States v. Owen, 553 F.3d 161 (2d Cir. N.Y. 2009)

[iv] USCS Fed Rules App Proc R 41

[v] USCS Fed Rules App Proc R 41(d)

[vi] Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302 (Mo. 1991)

[vii] In re Marriage of Head, 273 Ill. App. 3d 404 (Ill. App. Ct. 1st Dist. 1995)

[viii] United States v. Thrasher, 483 F.3d 977 (9th Cir. Or. 2007)

[ix] Morgan v. Chi. Title Ins. Co., 2009 U.S. App. LEXIS 23435 (9th Cir. Haw. Oct. 23, 2009)

[x] Jerry Bennett Masonry Contr., Inc. v. Crossland Constr. Co., 213 S.W.3d 733 (Mo. Ct. App. 2007)

[xi] State v. Washington, 249 S.W.3d 255 (Mo. Ct. App. 2008)

[xii] General Atomic Co. v. Felter, 436 U.S. 493 (U.S. 1978)

[xiii] Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 114 F.3d 1513 (10th Cir. Utah 1997)

[xiv] Casey v. Planned Parenthood, 14 F.3d 848 (3d Cir. Pa. 1994)

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