REEXAMINING RECALL OF MANDATE: LIMITATIONS ON THE INHERENT POWER TO CHANGE FINAL JUDGMENTS.

• Author: Fritz, Elizabeth M.

The federal courts of appeals exercise a rare power: the power to turn back the clocks and fix their past mistakes. This power--the "power to recall mandate"--allows courts to reassert jurisdiction after mandate has issued and reconsider a judgment on the merits. Much like Hermione Granger's time-turner, the power to recall mandate can be used innocuously to manage scheduling errors, or for more weighty purposes, like setting prisoners free. (1)

The power to recall mandate is one of the inherent powers of the judiciary. It existed at English common law subject to strict limitations that, in the modern era, have largely eroded. A court may recall mandate sua sponte or on a litigant's motion. (2) And there are various reasons why recall might be appropriate: because the court itself made a clerical or procedural error, because one of the parties engaged in fraud on the court, or because the court's decision erred on the merits. Yet if courts were willing to recall mandate every time one of these errors occurred, the recall power would eviscerate public interests in finality and repose.

For this reason, the power to recall mandate was conceived as an "extraordinary remedy." (3) But ever since then-Justice Rehnquist acknowledged that the recall power "probably lies within the inherent power of the Court of Appeals," (4) courts of appeals have received scores of recall motions. In 2020 alone, federal courts of appeals decided at least 138 recall motions. (5) The pace of recall motions has vastly outstripped scholarship into the recall power, (6) with the result that the disposition of these motions can vary from circuit to circuit--and worse, from panel to panel. (7) Wright and Miller observe that "no formal rules have yet emerged to define and cabin the power." (8)

This Article conducts a review of recall jurisprudence to suggest that courts are developing both formal and informal rules to define and cabin the recall power--even if those rules are inconsistently applied. Part I explores the nature and origins of the recall power. Part II lays out when courts have occasion to consider the recall power, including when the mandate includes a clerical or procedural error, when the mandate is based on fraud on the court, or when intervening binding court precedent reveals that the case in which the mandate issued was wrongly decided. It then delineates factors that weigh into the recall analysis. Part III harmonizes the recall power with statutory restrictions on habeas and post-conviction relief. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricted courts' power to grant recall motions as an alternative to habeas relief or, I argue, federal post-conviction relief. Even so, I demonstrate that recall motions remain a viable route to post-conviction relief for some state and federal prisoners.

1. ORIGINS AND HISTORY OF THE POWER

   An appellate court's "mandate" is the order that conveys its decision, directs the lower court's entry of judgment, and, if necessary, requires the lower court to engage in further proceedings. (9) Federal Rule of Appellate Procedure 41(a) dictates that, in general, an appellate court's mandate consists of "a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs." A "mandate," however, includes only "matters actually decided." (10) An opinion's "mere recital of matters assumed for purposes of decision and dicta are not part of the mandate." (11)

   An appellate court will issue its mandate after the deadline to file a petition for rehearing expires, after such petition has been denied, or, if the court stays its mandate pending a petition for certiorari, after the Supreme Court issues its final disposition. (12) Mandate becomes effective as soon as it issues. (13) Once mandate issues, jurisdiction returns to the lower court, (14) which "has no power or authority to deviate from the mandate." (15) Still, an appellate court retains the power to recall its own mandate and to reassert appellate jurisdiction over a case. (16)

   The power to recall mandate is one of the "inherent" (17) powers of the judiciary "necessary to the exercise of" Article III functions. (18) The recall power arises from the control that the Constitution "vest[s] in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases," (19) as well as from appellate courts' statutory authority to "affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review." (20) Exercised properly, the recall power can promote judicial order by preventing the ongoing effects of an unjust mandate, (21) serving as a check on parties wishing to "tamper[] with the administration of justice," (22) and enabling circuits to remove clearly erroneous precedent without becoming bound by such precedent. (23)

   A court's inherent power to recall mandate originally expired at the end of every term. (24) This meant that courts generally had no more than one year to recall mandate, and usually had less. In one case, Peck v. Sanderson, Sanderson petitioned the Supreme Court for rehearing after his counsel had been sick and had missed oral argument. (25) Issuing a one-page decision, the Supreme Court denied his petition, noting that the oral argument had occurred during the Court's previous term and holding that the Court had no power to grant rehearing after its mandate had already issued. (26)

   The term-end rule was a "self-imposed" "rule of repose (somewhat analogous to a statute of limitations)" that courts sometimes "relaxed." (27) Courts recognized certain ancillary remedies--such as the writs of audita querula, coram nobis, and coram vobis, and the bill of review--pursuant to which courts would sometimes grant relief long after the term-end. (28) In particular, when petitioners sought recall based on a clerical error in the mandate, other procedural error by the court, or fraud on the court, courts sometimes relaxed the termend deadline, recalling mandate even years after the mandate had issued. (29) In The Palmyra, for instance, the Supreme Court found that the circuit court's clerical error had led the Supreme Court mistakenly to dismiss the petitioner's appeal in an earlier term. (30) Although the term-end deadline had long since elapsed, the Court was willing to recall its mandate (dismissing the appeal) and reinstate the appeal. (31) The Court reasoned, "[e]very Court must be presumed to exercise those powers belonging to it, which are necessary for the promotion of public justice; and we do not doubt that this Court possesses the power to reinstate any cause dismissed by mistake." (32) The power to recall mandate therefore existed long after the end of term, but was rarely exercised past that deadline.

   District courts, like appellate courts, possessed a power to correct or vacate their judgments, and this power was originally subject to the term-end rule. (33) But for district courts, the Federal Rules of Civil Procedure supplanted the term-end rule. (34) The Advisory Committee noted that the term-end rule operated inequitably, granting more time to vacate judgments that were entered at the beginning of term than judgments entered at the end of term. (35) The Rules consequently replaced the term-end rule with express time limits. Now, regardless of the expiration of term, movants can file within 28 days from the entry of judgment to alter or amend judgment under 59(e), (36) and can file within one year for relief from judgment under 60(b) for reasons of "mistake, inadvertence, surprise, or excusable neglect," "newly discovered evidence," or "fraud." (37) Movants furthermore may file within any "reasonable time" for relief from judgment under 60(b) on the basis of voidness, inequity, or "any other reason that justifies relief." (38) District courts can correct clerical errors in the mandate "whenever one is found." (39) These rules regulate, but do not restrict, a district court's power to entertain independent actions to grant relief from judgment, and to set aside judgments for fraud on the court. (40)

   Appellate courts, meanwhile, ceased following the term-end rule after Congress passed 28 U.S.C. [section] 452. (41) Like other inherent powers of the judiciary, the power of courts to recall mandate operates as a "default rule" (42) which Congress may and does regulate. (43) Section 452 specifies that "[t]he continued existence or expiration of a session of court in no way affects the power of the court to do any act or take any proceeding." Although Justice Harlan's spirited dissent in United States v. Ohio Power Co. argued that the purpose of [section] 452 was actually "to prevent reliance upon the continued existence of a term as a source of power to disturb the finality of a judgment," (44) the Court's per curiam opinion implicitly rejected Justice Harlan's argument and vacated its prior-term decision. (45) Since United States v. Ohio Power Co., the Court has not treated the expiration of term as a barrier to the power of appellate courts recall of mandate. (46)

   The existence of express federal rules limiting the authority of district courts to amend or vacate judgment, but not limiting the authority of appellate courts to recall mandate, might suggest that an appellate court has unfettered discretion to recall mandate. (47) But that view is wrong. The inherent power to recall mandate exists to promote the "orderly and expeditious disposition of cases," (48) whereas an unbounded recall power would allow parties to endlessly challenge final judgments and thereby create disorder and delay. (49) An expansive body of case law--in which courts overwhelmingly have denied recall motions--suggests that courts of appeals face implicit limits on their recall power. (50) These restrictions form the foundation of the historical exercise of the recall power, and disregarding these...