- 18 - limited by any action taken by the appellate court with respect to those issues during the appeal. On remand, a trial court may not deviate from the mandate of an appellate court * * * “[w]hen a case has been decided by an appellate court and remanded, the court to which it is remanded must proceed in accordance with the mandate and such law of the case as was established by the appellate court.” Firth v. United States, 554 F.2d 990, 993 (9th Cir. 1977) * * * The Supreme Court long ago emphasized that when acting under an appellate court’s mandate, an inferior court “cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided upon appeal; or intermeddle with it, further than to settle so much as has been remanded.” In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895). [Commercial Paper Holders v. Hine (In re Beverly Hills Bancorp), 752 F.2d 1334, 1337 (9th Cir. 1984); alteration in the original.] The “law of the case” doctrine requires a decision on a legal issue by an appellate court to be followed in all subsequent proceedings in the same case. Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993). The doctrine generally precludes reexamination of issues decided either expressly or by necessary implication by the appellate court upon appeal and applies to the trial court on remand and even to the appellate court itself upon a subsequent appeal. Pollei v. Commissioner, supra at 601. The law of the case acts as a bar only when the issue in question was actually considered and decided by the first court and does not extend to issues an appellate court did not address. United States v. Cote, supra at 181-182.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: May 25, 2011