Bernard Litman v. Massachusetts Mutual Life Insurance Company

report from the record because BHRHA reveal a factual basis report LITMAN, failed to Plaintiff-Appellant, Bernard that Pierre for BHRHA’s conclusion v. political asylum. INS no claim

had valid MUTUAL LIFE MASSACHUSETTS the district court further contends that COMPANY, INSURANCE cautioning give broadly INS to erred in Defendant-Appellee. “little, weight,” any if even reports those 208.10(b) (1987) though man- 8 C.F.R. § No. 85-5939. reports, of those dates the inclusion though the court observed that even Appeals, “[t]he United States Court of suggest immigration judge did not Eleventh Circuit. weight; merely given any he letter was Aug. regulations included it in the record as the mandate.” In the absence even infer- immigration judge any- did

ence that the

thing harmlessly comply than other

regulations, the order must be reversed.3

III.

We hold that the district court’s order

remanding appeal- this case is a final and Furthermore,

able order. we conclude that finding

the district court erred Immigration

decisions of the Court and the supported by

BIA were not substantial evi- n dence.

REVERSED. 1207, 1221-22, 3. We note that L.Ed.2d Given INS and the district court both proceeded assumption in this agree action under the we with the BIA that substantial applicant asylum, applicant that an like an for evidence that Pierre’s fear is not “well- shows withholding deportation, for bears the bur moreover, and, founded" that citations proving persecution upon den of that his/her Pierre’s brief reveal that she was aware of the likely return to is "more than his/her homeland pendency Supreme in the Cardoza-Fonseca appeal pending, not." While this the Su cross-appeal, but filed no we see no rea- Court preme among Court resolved a conflict the cir to remand the case for further considera- son cuits on this issue. The Court determined light Campbell opinion. of that tion discretion, General, Attorney the grant in his Cir.1984) Wainwright, 726 F.2d application asylum upon an alien's cross-appeal may (appellee who has failed to proof "persecution or a well-founded fear enlarge rights his a decree to own attack persecution,” meeting without the an addi alien rights or attack the of his adver- thereunder proving likely tional burden of that it is "more sary). than not” that fear will be realized. INS his/her — Cardoza-Fonseca, U.S. -, -, Eaton, Parks, Joel D. Podhurst Orseck Eaton, Josefsberg, Olin, P.A., Meadow & Miami, Fla., plaintiff-appellant. Gibson, Gerry S. Davis, Steel Hector & Miami, Fla., for defendant-appellee. RONEY, Before Judge, Chief GODBOLD, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON, Judges, Circuit *, HENDERSON Senior Judge. Circuit ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING IN BANC FAY, Judge: Circuit The case was taken in banc to consider whether the mandate in Litman v. Massa- chusetts Mutual Life (11th Cir.1984) (“Litman I”) F.2d 1549 properly executed. The mandate included an order for a new trial on dam- ages. The district court did not conduct a trial, however, because it was of the opinion Right that the “Waiver of a to New Entry Judgment” Trial and Consent to (“Mass presented by Massachusetts Mutual Mutual”) acceptable was an alternative dis- position of the case. For the reasons that follow, we find that the district court’s order was inconsistent with and in dis- regard of the law of the case established Litman I. We and REMAND REVERSE punitive damages. for a new trial on Be- cause this case involves the structural rela- tionship court and between judicial hierarchy, district court within the we examine the creation of the federal system, emerged the tools that in- enforce the three-tier structure and the designed stitutional values the tools are perpetuate.

* Henderson, 46(c). Judge, Senior Circuit has § elected participate pursuant in this decision to 28 U.S.C. Perspective (2d 1984). Orga- Supreme

I. Historical ed. Court has the System. power of the Federal Court to make nization determinations as to the law of the land that binds all By courts. power is created the Constitu- Judicial Congress assigned jurisdiction- statute Congress. Art. Ill of tion and the Consti- powers al to both district and circuit courts. provides: tution Power “[t]he original The district courts are courts of States, shall be vested in the United one jurisdiction. (1982). 28 U.S.C. 1331 § Court, supreme and in such inferior Courts appellate circuit courts jurisdiction have Congress may from time to as the time courts, over district agen- administrative Const., and establish.” U.S. ordain art. power cies and original exercise to issue Ill, 1789, early Congress 1. As created § appropriate writs in Wright, cases. 13 C. courts and circuits courts. district Judi- Cooper, A. Miller & E. supra, at 3506. § 1789, 20, ciary Act of ch. 1 Stat. 73. In Appellate power courts have the to issue 1891, Act, Congress passed the Evarts Act mandates which are commands that cannot 3, 1891, 826, Mar. 26 which Stat. estab- ignored. Supreme Absent a Court deci- appeals the circuit court of lished as a contrary, sion to the district courts are separate pri- intermediate level court. The compelled to appellate follow mandates of mary objective of the Evarts Act was to courts. In re Fork & Tool Sanford Supreme relieve the Court of the excessive 247, 255, 291, 293, 160 U.S. 16 S.Ct. 40 imposed upon arising burden from the (1895); States, L.Ed. 414 Sibbald v. United rapid growth the country, and the (12 Pet.) 488, 492, 37 U.S. 9 L.Ed. 1167 steady litigation, by increase transfer- (1838). ring part appellate a considerable of its jurisdiction Appeals, to the Circuit Court of system The three tier evolved purpose- making judgments fully operates that Court and deliberately and to de- final, compelling absent proper circumstances. fine the authority allocation of Dickinson, 92, United States 213 U.S. responsibility judicial system. within the 97, 485, 486, (1909); 29 S.Ct. 53 L.Ed. 711 Experience has demonstrated sys- American Construction Co. v. Jackson- Throughout history tem works. courts at ville, Tampa Key Ry., & 148 West U.S. recognized all three levels have that care- 372, 382, 758, 762, 13 S.Ct. 37 L.Ed. 486 ful observation of this allocation of authori- (1893). Today’s judicial emerged structure ty necessary properly for a functioning Congress passed when the Judicial Code of judiciary. err, When appel- district courts 1911, 3, 1911, 231, 1131, Mar. ch. 36 Stat. late courts do not hesitate to correct mis- aligned the circuit courts as those takes and confine the court to its autho- handling appeals assigned most rized appellate boundaries. When an court general court as the trial court of errs, Supreme Court does likewise. original jurisdiction. doing, Congress In so system established the three tier as well as Tools, II. Institutional Values and Illus- judiciary chain of command within the trations. hierarchy. There are several methods used to en- jurisdic

The Constitution confers sure order is maintained within the powers Supreme hierarchy. provi- tional statutory Court. See Pursuant Const., Ill, sions, appellate U.S. art. 2. The Court has authority courts have the § original jurisdiction limited and exercises to issue writs of All mandamus. Writs appellate jurisdiction, Statute, by ap (1982). either 28 direct U.S.C. 1651 The his- § peal discretionary writ of certio- toric use of the writ mandamus issued rari, courts, over the district the courts of court has been to exert its appeals, highest revisory appellate power courts of the over the district Wright, Ass’n, states. 13 C. A. Miller & E. Coo court. Evaporated Roche v. Milk per, 21, 26, 938, 941, Federal Practice and Procedure 3507 319 U.S. 63 S.Ct. 87 L.Ed. §

1509 375, 102 Davis, at at S.Ct. Peru, 454 U.S. be.” U.S. parte 318 Ex (1943); 1185 L.Ed. 63 S.Ct. means of an “effective affords The writ compelling serves as a A recent to a lawful confining the inferior v. Board School illustration.1 Jaffree or of jurisdiction, prescribed its exercise (S.D.Ala.1983), Comm’rs, F.Supp. 1104 authority it to exercise compelling held that fourteenth Peru, parte Ex duty to do so.” it is its incorporate the estab- did amendment The writ of at 796. 63 S.Ct. at first amendment clause lishment remedy, mandamus, while an extreme ruled district court against the States. The usurps pow a district used when still had Supreme Court States that the United Kerr v. United its discretion. or abuses er Powell, in his 1128. Justice Id. erred. 394, 402, Court, District States for the Eleventh of Circuit Justice capacity (1976); 2119, 2123, 48 L.Ed.2d emergen- interlocutory Circuit, entered an Fernandez-Toledo, States United of the district cy stay of In re Extra Cir.1984); 912, (11th 919 F.2d that, “[ujnless and until stated court and Ghandtchi, 1037, 1038 F.2d 697 dition of following deci- reconsiders this Court v. Can see States Cir.1983); United (11th sions, control this case. they appear to Cir.1986). (11th 1528, 1529 non, F.2d 807 obligated view, Court was my the District keep the courts used to is a tool The writ Similarly, my own authori- them. to follow and constitutional functioning within by control- is limited Justice ty as Circuit design. congressional v. of the full Court.” ling decisions Jaffree Court, by accepting cases Supreme The Comm’rs, 459 U.S. 1314, Board School of certiorari, discretionary writ of through the 843, 842, 924 1316, 74 L.Ed.2d 103 S.Ct. no The the courts. kept order within (1983). and courts the federal district tion that Appeals for the Thereafter, of the Court to must adhere appeal of courts circuit district reversed Circuit Eleventh is rein decisions Supreme Court controlling complaint, 705 dismissing the order court’s v. In Hutto necessary. forced whenever denied, Cir.1983), cert. 466 (11th F.2d 1526 706, 703, Davis, 370, 375, 102 S.Ct. 454 U.S. 1707, 181 926, 80 L.Ed.2d 104 S.Ct. U.S. empha (1982), Court L.Ed.2d 556 70 district emphasized the (1984). The Court hierarcal need to adhere sized the Supreme to adhere obligation to court’s cre system court of the federal structure had Supreme Court precedent. Court Congress. and by the Constitution ated and implications historical considered prevail with anarchy to “[Ujnless we wish of interpretation present that its concluded precedent judicial system, in the federal amendments fourteenth and the first by the lower followed must be of this Court Id. evidence. with the historical consistent misguided how no matter federal courts district court though the Even to at 1532. it think those courts judges of dismissing case order court’s district arising reversed out of For illustrations historical seating de segregated era, Lightfoot, buses holding e.g., v. Rights see Gormillion Civil 125, (1960) 339, plaintiffs 110 of their constitutional prived L.Ed.2d S.Ct. 5 Black U.S. 81 364 (Supreme (which order, court’s Har Goldsby district v. reversed ex rel. rights); Court States United appeals), denied, dis Cir.), of (5th U.S. affirmed 361 was cert. 71 pole, 263 of brought by Black citizens missing complaint (1959) (denial 58, of 838, 4 78 S.Ct. L.Ed.2d 80 altering legislative challenging act Alabama finding by court corpus petition reversed habeas effectively depriving Blacks city and boundaries serving jurors on excluded from that Blacks race, con basis to vote on the of their race, equal ato denial amounted the basis amendment); v. Meredith trary to fifteenth amend contrary the fourteenth protection to denied, Cir.), (5th Fair, 371 cert. 305 F.2d 343 (5th Morgan, F.2d 780 251 ment); v. Baldwin (dis (1962) 49, 828, 66 S.Ct. 9 L.Ed.2d U.S. 83 1958) (court reversed Cir. injunctive denying relief order trict court's waiting railway segregation in the down struck university seeking into entrance Black student Birmingham). rooms finding of unlawful of a on the basis reversed Birmingham discrimination); v. Boman racial Cir.1960) (court Co., 280 F.2d 531 Transit 1510 Supreme Carrington,

concluded that Court erred it D. Meador M. Rosenberg, & (1976). required controlling Appeal p. to follow deci was Justice But the 1532; primary recognizes mission of the sion. Id. at Stell Savannah-Chat courts Ed., particular 55, feature. Bd. County ham denied, (5th Cir.), 933, 379 U.S. cert. precedence “Judicial serves as the foun- 332, 13 L.Ed.2d The Su dation of our federal system. preme Court affirmed stability to it pre- Adherence results appeals. Jaffree, court of Wallace v. dictability.” Wallace, Jaffree 105 S.Ct. 86 L.Ed.2d 29 (11th Cir.1983). In Moragne v. (1985) (this appeal dealt with the narrow Lines, States Marine 90 S.Ct. period question of whether silence (1970) 26 L.Ed.2d Supreme voluntary prayer” “meditation or estab adhering Court discussed the reasons for meaning religion lished within precedent: amendment). message first sent Among these the desirability Supreme from both the guide law furnish a clear for the conduct appeals Court and court of clear— individuals, plan them enable obligation precedent. had follow their against affairs with assurance un- Many have been created en- devices surprise; importance toward fur- authority, jurisdiction respon- sure that thering expeditious fair adjudication sibility properly among by eliminating remain allocated relitigate the need to ev- ery three levels of courts within the federal proposition case; relevant in every judiciary. merely The necessity maintaining discussion above of public point. judiciary serves illustrate the The courts faith in the as a source of im- system differing responsi- personal within the judgments. have reasoned bilities and standards and values must be 403, 90 at Id. S.Ct. 1789. “The confi- formulated in and communicated order people ability dence of predict in their process ensure that the functions. legal consequences of their is actions vitally necessary planning facilitate perpetuate Institutional tools the value primary activity.” of The Id. law of the of stability predictability—essential case principles. doctrine rests on the same proper operation judi- factors ciary. Prichard, City v. 661 Bonner of law of case doctrine 1206, (11th Cir.1981) (en banc). F.2d 1209 authority created to ensure that and re Predictability is essential not law- sponsibility properly remain allocated yers who their must advise clients about among the courts. The doctrine is based law, but also of to the notion premise appellate an decision in creating body review of It a stable law. binding subsequent in all proceedings in is generally thought appellate courts same presentation unless are in a position better than trial courts intervening change evidence or stability. accommodate the Re- need controlling law dictates a different re viewing courts are to maintain better able sult, appellate or the clearly decision is necessary continuity of doctrine over and, erroneous if implemented, would work Carrington, time. Dockets Crowded injustice.2 a manifest Bailey, Piambino v. Appeals: Court 1112, The Threat to (11th Cir.1985), 757 F.2d 1120 cert. — Function Review and National denied, -, 2889, U.S. 106 S.Ct. 90 Law, 542, (1969). 82 (1986); Zant, Harv.LRev. 551-52 L.Ed.2d 976 v. 743 Westbrook uniformity necessarily 764, (11th Cir.1984); achieved F.2d 768-69 Baumer rigid; change, 1318, the appellate States, (11th or court “can v. United 685 F.2d 1320 Cir.1982) can react to advocacy reality Murtha, external (quoting or 377 White v. 428, (5th Cir.1967)). alter the direction of its P. commands.” F.2d 431-32 A district today. exceptions None of these are material to case we address

15H tionship appellate courts and under an between acting proper and center on the it, district courts mandate, vary or exam- “cannot court’s authority responsibility. execution; allocation than any purpose other it for ine relief; further or any other or give concerning of our circuit The law error, upon a it, apparent even for review of a district court to follow our obligations appeal; or intermeddle decided on matter Piambino, See settled. 757 mandates is it, so much as than to settle further Cir.1985); City v. (11th Wheeler F.2d 1112 Fork In re been remanded.” Grove, Sanford (11th 746 F.2d 1437 Pleasant 255, 291, 247, 16 Tool& 160 U.S. S.Ct. Zant, 743 F.2d 764 Cir.1984); v. Westbrook (1895); Sibbald v. United 293, 414 40 L.Ed. Cir.1984); Dorsey v. Continental (11th 492, States, (12 Pet.) 488, L.Ed. 9 37 U.S. Co., 730 F.2d 675 (11th Cir.1984); Casualty 1167 Williams, 728 F.2d 1402 v. United States Parrish, Cir.1984); Robinson v. (11th 720 doctrine, the case self-im The law of Cir.1983); v. Unit (11th Baumer F.2d 1548 courts, operates to create by the posed States, Cir.1982). (11th F.2d 1318 ed 685 obedience within efficiency, finality and e.g., accord. Todd All circuits City v. judicial system. See Wheeler Transportation, Corp. v. Auto Shipyards 1437, (11th Grove, F.2d 1440 Pleasant 746 S.A., 763 F.2d 745 (5th Cir.1985); Bankers Williams, 728 v. States Cir.1984); United Corp., 761 Trust Co. v. Bethlehem Steel Cir.1984); Lehrman 1402, (11th 1406 F.2d Beverly Hills (3d Cir.1985); re 943 F.2d 659, (5th Corp., 500 F.2d 662 Oil Gulf Cir.1984); De (9th Bancorp., 752 F.2d 1334 denied, Cir.1974), 95 cert. Maier, (7th Cir.), cert. vines v. F.2d 876 728 White v. (1975); 400 43 L.Ed.2d denied, 105 S.Ct. 83 (5th Cir.1967). Murtha, 377 F.2d Baskerville, (1984); Stamper L.Ed.2d cer must have dispute resolution Judicial City Cir.1984); Cleve as a process, Due tain essential elements. Comm’n, Power land v. Federal value, may be corner constitutional v. American Crane Co. (D.C.Cir.1977); stability, as stone, finality and institu but Standard, Inc., (2d Cir.1973); F.2d 332 importance. values, equal tional Corp., Steel In re United States is not an case doctrine the law of the While denied, 859, 94 cert. (6th Cir.), U.S. 414 489 3 Murtha, v.White command,” “inexorable (1973); Cherokee 71, L.Ed.2d 110 S.Ct. 38 431, helps to to it adherence F.2d at 377 Oklahoma, (10th 674 v. 461 F.2d Nation elements the essential ensure denied, 1039, 93 Cir.), S.Ct. cert. 409 U.S. hon- process. Failure to in the maintained v. Com (1972); Poletti 521, 34 L.Ed.2d 489 in chaos. only result can or its commands (8th Cir.1965); missioner, 351 F.2d 345 simply application an The mandate rule (1st Iriarte, F.2d 800 v. 166 United States specific to a of the case doctrine of the law 36, denied, 816, S.Ct. Cir.), 69 cert. Piambino, 1120 757 F.2d at facts. set of (1948). 93 L.Ed. 371 omitted). in (citations judicial Each tier man- once a responsibility hierarchy has its issues a court appellate When vague may be mandate inter subject date is issued. A it is not specific mandate disposition of resulting from the obli precise has an pretation; vary widely presented which A different carry those issues out the order. gation to com- district simple encourage to the most invite from the rather result would analysis of the in ad hoc Determining scope engage of a mandate plex. courts rulings. Post interpretation. appellate present problems propriety with can courts maneuvering in district examples mandate replete with The case law authority of interpretations of would undermine arising disputes from great of uncertain- deal create rela- courts and disputes focus mandates. Co., Casualty 1119; Dorsey v. Continental see may not dis- address issues 3. The Cir.1984). 675, (11th Piambino, 678-79 F.2d at 730 appeal. 757 posed on 1512

ty in the process. It would also flexibility. See California, Arizona v. 460 any hope eliminate of finality. 605, 618, U.S. 1382, 103 1391, L.Ed.2d 318 recognize

We that there are cases where in a seemingly specific mandate such as an order for a new trial up wind awith III. Litman v. Mass Mutual. different result on However, remand. in With the foregoing principles mind, in we such opinion, cases the when viewed in its on dispute focus before us which raises totality, supports disposi alternative the issue of opinion whether the in Litman tion. e.g., Resource, Publishers Inc. v. v. Massachusetts Mutual Life Publications, Inc., Walker-Davis (11th 739 F.2d 1549 Cir.1984) (“Lit (7th Cir.1985) (remand for a I”), man viewed its totality, al

did not necessarily mean that a trial would lows for the district court’s order on re be necessary when the district court was mand. instructed to look at the provi contractual

sions governing termination and then make damages”); “determination of United A. History6 Procedural Curtis, States (3d Cir.), F.2d 769 This was an action for breach general denied, cert. 103 S.Ct. agency contract and two counts of slander (1982) (reversal L.Ed.2d 512 of convic brought by Bernard Litman (“Litman”) tion and remand for a new trial did not against Massachusetts Mutual Life Insur- preclude district court from dismissing in (“Mass ance Company Mutual”). The trial dictment based on jeopardy double as claim resulted in a jury verdict for Litman on all question constitutional raised three counts and judgment was entered appeal;)4 Shelkofsky Broughton, $2,500,234. amount of (5th jury’s 1968)5 F.2d 977 ver- (reversal Cir. for a trial dict separate included by jury compensatory preclude did not dam- district court from age disposing awards for the case breach summarily if the evi contract dence claim and offered was each insufficient to warrant two claims of slan- submission jury). to the Such cases der.7 The do not damage award for the weaken the “mandate give rule” but it slander was undifferentiated. It was as- 4.The Curtis, 683 F.2d at 772. considered district court would bar a retrial on such right against grounds, and not on Curtis’ constitutional case doctrine dictates mination [ dignity was the the trial fully weighed those cutors—this Court in its explicitly to have concluded that a [United concerns— The district court indicated in its statements double rights dismissal of the of June tional concerns of its (3rd remand court in Curtis stated: Cir. jeopardy States Curtis ] 644 F.2d process toas appropriate 1981) namely, binding. that, 1981 at 19. With integrity double defendant, ] aside from indictments. See n. concern propriety the need for 6. To the extent that the — factors ... and jeopardy, of the means to that own sanctioning prior might any of retrial respect the law of the decision respect Court’s deter constitutional have institu protect ^[263] integrity Transcript new appeared of process.’ must justify at 271 prose those care trial ‘the — of 7.The 6. Since a — 5. The Eleventh Circuit portioned as follows: the issue now before us. them, except circumstances quately Prichard, former Fifth Circuit (en banc), adopted Slanderous Statements made breach of Contract Slanderous Statement made Mass Mutual two Mass Litman’s former insurance Mutual salesman prospective compensatory damage detailed complete employer surrounding spokesman in Litman we need not necessary employees account of the facts and prior precedent I, to a to October in connection with by Bonner v. by awards were dispute decisions of the $ $ $2,000,234 Cir.1981) 150,000 100,000 are ade- City repeat ap- inappropriate, damages would be punitive question on single ato response sessed required by the mandate. not form.8 and was special verdict the Lit- acknowledged district court several on appealed Mutual Mass puni- not hold that the man I opinion did punitive dam- challenged grounds mat- excessive a damage award was as tive theories. asserting alternative age award holding law, interpreted but to ter of entitled that was argued Mass Mutual improperly in- damages was punitive the award of indicate that the issue judgment on alternative, of the amount issue framed the district court in the flated. The excessive was damages awarded a one. punitive Mass as by Mutual presented af- court trial. Our a new entitling it to the dis- by stated the issue Specifically, court judgment firmed the [djefendant, “a was whether trict court Finding that the state- exception. with one recog- a new been right to trial whose spokesman Mutual by a Mass ment made Appeals, waive nized the Court [can] Litman, could employer of prospective to a original offering accept right by law, a matter slander not be infir- where judgment, in situation $100,000 slander award reversed the necessarily inflated first mity at the of the in a reversal necessarily resulted v. Mas- recovery [plaintiff’s [?].” The case damage award. punitive entire Mutual sachusetts Life for the district court remanded was (S.D.Fla. August p. 5 Civ-EBD No. 78-3314 punitive issue of solely on the new trial answered the 1985). The district no motions made Mutual damages. Mass judg- Final the affirmative. question in ruling or to withdraw modify the in the of Litman favor ment was entered dam- punitive award challenge to the $250,000, from the interest amount of ages. judg- original final entry of the date filed a written remand, Mass Mutual On litigation. of the ment, costs plus taxable Consent Trial and Right to New “Waiver of Id. stat- Judgment.” Mass Mutual Entry of accept the was now content ed that it dam- punitive on original jury verdict B. Discussion terminating the age issue in the interest the an- provide premises Five major Mu- accepted Mass suit. disposition of our for alytical framework prima argument that if tual’s facie state- First, finding that the this case. against damages punitive for award spokesman by the Mass made ment all, our at under were shown Mass Mutual employer prospective to Litman’s por- only consider jury opinion9 part of law became matter of as a slander $250,000 for original of the tion Second, because case. law of the on the based remaining which was claim single only a posed form special verdict em- Mass Mutual made two statements damages the slan- punitive for question former salesmen. Litman’s ployees to ne- slander award der, of the the reversal Mass Mutual’s Support of Memorandum $250,000 original cessitated reversal Litman, (No. Civ- 78-3314 at Waiver ef- damages.10 The the dis- argument EBD). Accepting this original voided reversal fect of the new trial that a concluded trict court employees. two of its statements read: form question special verdict 8. The of the case. you the law became as- That do "What amount defendant, Mutu- Massachusetts against the sess 621, Company slander?” Co., for the Life Insurance F.2d al 757 Neely Bankers Trust v. 10.See I, F.2d at 1562. Litman 739 1985); Co. v. (5th Occidental Nissho-Iwai 630 Cir. 1530, (5th Sales, Inc., 1547-48 F.2d 729 Crude Mutual’s flaw in Mass There is a fundamental 9. Products, 1984); Group, v. C & C Inc. Cir. Barnes premise. argument. an incorrect It starts with Cir.1983). 1023, (4th Inc., 1034 716 jury I, determi- the Litman the prima affirmed of award case for the nation of a punitive facie for the damages against Mass 1514 Third,

judgment.11 for punitive damages. basis an award was entitled Both punitive damages surviving on parties right of slan- had jury a for a to set the appeal derous was affirmed original statements on judgment amount. But as to part the law of and became of punitive damages case. the amount of was null punitive damages. entitled to Litman was longer no void. It existed. Fourth, litigants were sent back to the Supreme The Florida Court defines the new district court for a determination of respective provinces jury of court and punitive damages if the first as trial never explicitly punitive when claims for dam Fifth, jury punitive occurred.12 trial on ages are presented. The court decides damages only proper outcome is under legal whether there is a for recovery basis negoti- Florida unless a settlement law was punitive damages, of the jury sets the parties ated between the or the mandate amount, any. if judge A trial may appeals. of modified the court substitute judgment for of jury. Lynch, Pierce, Arceneaux v. Merrill Fen law of Given the the case estab Smith, Inc., ner & 1498, 767 F.2d 1503 I, Litman lished in the mandate was clear (11th Cir.1985); Regis Paper St. Co. v. specific—the district court was to con Watson, 243, (Fla.1983); 428 So.2d 247 solely duct trial on the issue of Jenkins, Arab Termite & Pest Control punitive damages. argues Mass Mutual 1039, (Fla.1982). 409 So.2d 1041 Once the that under Florida law and the facts error was claim, on established the slander case, a right punitive to a new trial on necessarily jury went back for a damages belonged to it alone. dis We determination of punitive the amount of Litman I agree. opinion in governs Our surviving claim.13 rights obligations both parties. final, appellate ruling Once the became The district court erred when it stated right belonged to a new trial to neither that since the first jury reasonable party individually but rather to both. heard evidence awarded an amount prescribed $250,000 law the case the outcome and on based three slanderous state- Although ments, follows, could not be altered. Litman had inexorably, that another no under Florida to seek a jury, presented law new reasonable with the punitive damages, appeal trial the first assessment of the punitive amount of dam- position left original ages where statements, for two slanderous yet was set aside the basis for would fix an equal amount at less or to the punitive damage $250,000 award was affirmed. award.14 Litman v. Massachu- The law of the case established that Litman setts Mutual No. 78- Life annuling setting 11. Reversal legal defined or the Litman I court affirmed the basis aside court of a damage surviving decision of a award on the Black, claim, Dictionary, lower court. H. Black's Law necessary jury a new trial became so a 1979). p. 1185 ed. appropriate could determine the damage assessment of purpose punishment for the de- 12. Co. Bankers Trust Steel Bethlehem Id., Termite, terence. Arab 409 So.2d at 1041. 943, Corp., Commissioner, (3d Cir.1985); 761 F.2d 950 Poletti v. 345, (8th Cir.1965); 351 F.2d argued 14.Mass Mutual and the district court Iriarte, 800, (1st United States v. agreed quote Termite, from Arab Cir.), 816, denied, cert. 69 S.Ct. opinion stating So.2d in the Litman I (1948); Hyer, L.Ed. 371 Roth v. punitive damages that an order for a (5th Cir.), denied, cert. justified when the amount assessed was 89 L.Ed. 573 proportion "out of all reasonable to the defend- malice,” implied analysis argu- 13. This ant’s forecloses that the mandate be Mass Mutual’s inter- regarding preted attempt challenge punitive damage ment so Litman's punitive damage grounds original equal judg- either less award on than inad- $250,000. equacy prohibited by interpretation Florida ment law. St. This is incor- Regis Paper, ap- panel attempted 428 So.2d at rect. The second first never to assess peal was merely a result damages. of a district court order rein- the amount of It stating jury support legal verdict that did not exist. After cited Florida law trial on the not conduct a new August court did (S.D.Fla. 4p. CIV-EBD damages pursuant to punitive in law amount of is no basis simply 1985). There law, “aggrieved Speculating Litman became an Florida conclusion. support such Piambino, is not and is 757 F.2d at jury party,” would decide reasonable what a judicial office. the entitled to redress. province within the integrity of the undermines notion money is the that It is uncontroverted addition, im improperly it system. jury reality dispute. This is the of this center underlying Florida policy on the clear poses Litman a de- many lawsuits. concedes dam damages. “Punitive punitive on law insisting recovery by his sire to maximize left to discretion peculiarly ages ‘are a new trial Mass submit to Mutual punishment to be degree of jury as the expense. his Mass it at which obtained on dependent always must inflicted hand, Mutual, suggests that on other case, upon of each well circumstances terminating litiga- its sole interest malice, wan degree the demonstrated such a de- Although understandable tion. outrage tonness, or oppression, found one has taken after possible cision is ” (emphasis evidence.’ from jury rights and advantage of its full Termite, 409 So.2d at supplied). Arab decision type It is rather “lost”. Canty, Corp. v. (quoting Wackenhut Perhaps justi- appeal. prior to an required (Fla.1978)). are Courts 359 So.2d Mass consequences, fiably fearful what a reason about postulate not free right a new trial Mutual “waived” or The mandate might decide. jury able original ver- reinstate the consented to slander based on certain a new trial dered has no Mass judgment. dict and statements, recovery of for the basis ous by the law ordered the trial to waive having affirmed. been punitive court rein- district can the of the case nor jury, as I, 1562. The 739 F.2d at Litman vacated has been state verdict must take law of Florida by the dictated Casual- v. Citizens this court. See Slokin and determine circumstance Cir.1983). (2d ty damages that would amount authority resur- lack the District courts punishment public policy of best serve has appeals court of rect that which 428 So.2d Paper, Regis deterence. St. voided. 1041. Termite, at 247; 409 So.2d Arab feelings other results Judges’ is not may be fair result That the jury displace the do not reasonable more Mutual’s Mass address. issue we Pekin Un Peoria & function. Tennant mandate effectively modified “waiver” 409, 412, 29, 35, 64 Ry, ion today that a holdWe by unilateral action. may jury A L.Ed. 520 change its cannot appellant successful en review less. Judicial more or award in a trial unilateral action mind and take of whether compasses a determination court. of this mandate modify a by jury drawn or conclusion inference maneuvering under post-decision Such by definition Reasonableness reasonable. confusion, un creating process mines the range possibilities. encompasses a wide When potential abuse.15 certainty and his any judge to substitute for It is not Mutual’s accepted Mass district making inferences issue solely on the new trial of a “waiver” drawing the Since conclusions. damages. on a retrial for the order "waive” on a new for an trial order basis Cir.1986) II, damages. Second, appeals plaintiff J., dissenting). (Fay, geo- certainly multiply Appeals almost decides appellate court damage point. examples metrically. First, illustrate Two man- The court compromised verdict. is a injury personal action ain a defendant damages. liability and a new dates successfully appeal verdict an adverse new trial to "waive" decides then Plaintiff In an died. plaintiff since learn that liability. exposure he decides attempt his to minimize of punitive damages, disregarded it quences. the in- agree We rule mandate of this structions court. “Even joint at the is not an “inexorable command.” The con- request litigants, sequences the district may materialize due to from arising not deviate the remand, mandate of an circumstances after how- ever, appellate governed by court.” Atsa California, law of the Inc. case Co., doctrine. If Continental circumstances after remand fall (9th Cir.1985). into one of the three exceptions to When the dis- rule, mandate agreed greater trict court district court with Mass Mutual that a discretion to act. If the jury reasonable circumstances af- necessarily conclude ter remand do not fall into that one of the award equal would be to or less exceptions, as case, conceded then original than the judgement it decided con- the district court is constrained to follow trary to the law of the case established on by mandate issued appellate court. prior appeal and exceeded its institu- Since our case falls into the latter category, tional authority. Farr v. H.K. Porter the district court by erred conducting Cir.1986); punitive trial on damages. Trahan v. Bank, First National (5th Cir.1983). We feel confident There are downside appeals. risks to Li- the district thought doing it was jus- tigants must use their judgment best tice in this case by issuing the order rein- mapping strategy. out If a new trial is stating jury verdict. requested and the mandate instructs the district court to judges

Trial conduct a trial directly solely are more and im- punitive issue mediately damages, by potential confronted the demands of larger risk of a doing apparent. justice, award by case, Mass we; than are Mutual should indeed, have assessed and this is evaluated primary their office and that risk before challenged that duty. Yet it is the considered this court. policy our that in long run —if not perhaps in given justice is bet- case— IV. CONCLUSION. ter by served general adherence to rules. The mandate is a tool used to ensure that Trahan, 720 F.2d at 834. institutional values are maintained and that consequences of ad hoc examinations the allocation of authority and responsibili- of the propriety of unambiguous mandates ty remains consistent design with the es- grave are too to be allowed. tablished under the law of our form of Mass Mutual’s failure to seek modifica- government. When court is- tion of our decision had the effect of bind- sues a precise mandate, clear and namely ing the district court to our instructions as an order new trial on dam- set forth in the clear ages, mandate. Mass Mu- is obligated to fol-

tual couched the “waiver” as low the issue instruction. Neither the district raised for the first any time court nor party district court ignore is free to on remand. disagree. case, We law of the including We consider the the determination “waiver” be an there attempt was a basis for an Mass Mutual award of circumvent the necessitating mandate rule in a jury order to as- minimize sessment exposure proper amount. It was created when its inappropriate request on appeal “interpret” the granted. Litman I Mass Mu- opinion in way effectively tual had an circum- opportunity to bring the matter vented the mandate. Accordingly, before we RE- this court. A motion to modify our VERSE and REMAND the case to ruling the dis- or withdraw the challenge asserted trict court with instructions to conduct a would have full received consideration. trial on the of punitive damages issue Mass Mutual position advocates originally ordered. the mandate rule is not an “inexorable com- mand” to be mindlessly EDMONDSON, followed Judge Circuit concurs in district courts regard judgment. without to conse- narios, apparently prevailing party concurring dubi- HILL, Judge, Circuit damaged by the usually finds it is more tante: less than all granted is on relief relief when I take judgment. While in the I concur in the presented appeal. of the issues reasons for specific issue with no case here. Had obviously the That is I fear that opinion, in the given judgment all of the addressed, Mutual obtained directly, Massachusetts have yet not may we appeal, in it be sought would relief it considerations. important strictly be that the mandate quite content opinion splendid Judge Fay’s Much of sought it the elimination While enforced. lost in the have that those who out points it, against it ob- damages awarded all of to seek may properly not appeals court of only of the the elimination tained court in the district result that reverse may dis- have been Mr. which there. It would appears the mandate when with, new trial has been and a appointed I saying, but goes without that this seem Thus, having one. as to that ordered majority with no issue certainly take relief, Massachusetts only partial received however, That, not is again. saying it for position in a worse potentially Mutual do this case. We us in problem before in had chosen been it than would have it seeking to in court loser this have a not appeal at all. not to this court’s court reverse have the district ought to procedures I that our believe is one who here we have What judgment. under litigant some relief forego a undertaking afford in this court has won and opinion Our these circumstances. question is victory. The its fruits of party the successful should tell judgment litigant who is not a whether benefi- right to the granted the it has been may elect that judgment court’s ciary this ought to have some relief, party and that victory in of its forego implementation can through which it available so, procedure under and, how and if court thing we nearest right. The that to waive be allowed it should circumstances what this right petition seems to be the have course, mandates of not all do so. Of and, Judge Fay rehearing as for carried required be appellate court did not out, Mutual Massachusetts points reverse If we district court. by the out it had any the relief to vacate for ask us a case and remand apparently won. dignity trial, it is no offense newa parties that authority of this court and period on limit must be a time There new trial ordered so that the settle the case its litigant seek to can waive which sententia place. Absoluta does not take my a limit relief, lack of such indiget. expositore non I am Inasmuch as major concern here. Massachu- litigant such as that convinced addressed apprehend problem I opportuni- ought have not setts shortsighted- Mutual result this is the case procedure, and time ty, unlimited and their coun- parties part ness judgment the benefits though avail itself even sel, appeal asking for relief them, forego or to demonstrate analysis would careful Mu- Massachusetts correct. must be help- than more harmful relief would long as litigation pursue not tual Further, prob- that this apprehend I ful. then so expedient to do it it deems overen- develop somewhat when lem can our mandate forego the benefits ap- find in an appellate judges thusiastic This thereby served. seem its interest appropriate for judge feels peal relief the litigant such Massachu- allow it, orders requested not but party who adversary and the put its setts Mutual sce- In each of these anyway.1 granted, now damages, the reassessment tive happened case. The in this what 1. This is not threateningly horizon. looms it clear Massachusetts record makes sought puni- argued the vacation through district court preparation for and Following panel’s decision in Litman commencement of the retrial we have or- I, Mass. Mutual decided to pay dered, only to tell the district its damages award and waive to a opponent to undo all that had been done if new trial. Mass. Mutual promptly notified jurors did selected not suit. the district court of its decision and re- quested the entry of a final judgment for short, litigants ought not seek relief Litman in the full amount of the award. they do really not want judges ought Litman opposed Mass. request, Mutual’s grant sought. relief not parties Should arguing that the Litman I decision enti- prevail in a way limited displeas- to their tled him to a new trial on the issue of ure, they ought to move promptly for re- punitive damages. Ultimately, lief. rules should be estab- lished for the waiver of benefits obtained The district court considered the man- our judgment, requiring that it be done date of the Litman I panel and determined

promptly for good I reason. concur could, that it consistent with mandate, the judgment. grant Mass. request. Mutual’s The court

concluded that the panel I Litman had not foreclosed the possibility that “a Defend- ant, TJOFLAT, right whose to a Judge, Circuit new dissenting in trial been recognized by the Court of CLARK, Appeals, JOHNSON and Circuit [could] waive right Judges, HENDERSON, offering accept Senior Circuit original judgment, Judge, join: in the situation where

the infirmity at the first trial necessarily inflated Plaintiff's recovery.” Because the district court believed that Mass. Mutual’s I. proposal do would Litman injustice, no in- In Litman v. Massachusetts Mut. Life deed that it give him the benefit Ins. (11th F.2d 1549 Cir.1984) an improperly verdict, enhanced required (hereinafter I), panel Litman of this Litman to accept the payment. court held that the district court erred in

submitting to the jury a claim of slander that the law does recognize. not panel The II. therefore set aside the jury’s award of compensatory damages The majority present claim. The chooses the dis- panel also concluded trict court’s action as a threat to the insti- court’s error in submitting power tutional courts, claim the the sta- jury might bility have and predictability law, influenced the jury’s as- the law sessment of punitive doctrine, of the case and the mandate rule. plaintiff, Bernard Litman, See at was ante 1508-1512. I entitled to submit that the receive on another majority has, claim regrettably, of slander. Be- to see failed cause the panel could not forest for say the trees. that the error harmless, it assumed that the error In Piambino v. Bailey, enhanced punitive F.2d damages award and — Cir.1985), denied, therefore cert. set that award aside as well. -, panel The provided (1986) L.Ed.2d 976 relief that (citations omitted), we could set forth wrong the law of Massachusetts Mu- this circuit regarding tual Life (Mass. rule, mandate Company Mu- stating the tual) following: suffered; had it ordered “the issue [of punitive damages] A remanded for court, trial new tri- upon receiving the man- al.” I, Litman 739 F.2d date of an appellate court, may alter, not mandate, give logic encourage, or and common sense favor

amend, or examine review, approval our district court’s decision. or but must relief any further compliance in strict order enter an I pow- Litman panel plainly The had the imple- court must The trial mandate. er to amend its to offer Mass. mandate spirit of the the letter ment both paying the choice of Mutual appel- mandate, taking into account availing of a re- damages award or itself the circumstanc- opinion, court’s late Taylor, Wilson v. trial. Cf. Although it embraces. es (11th Cir.1984) (ordering plaintiff 1549-50 first address, matter as a is free accept defendant granting remittur disposed issues those impression, damages). question trial on the a new appel- to follow bound it is appeal, ante much. majority The concedes expressed holdings, both court’s late Furthermore, amendment such an at 1516. implied. with, or would not have been inconsistent by, panel’s rationale and precluded ordered explicitly I panel must decide is holding. question we damages. issue trial on the district court was somehow whether trial, how- newa Mass. granting could, panel doing from what the precluded its address, thus not ever, did panel the would, have Common and no doubt done. answer, question the did mandate the court was sense dictates that district pay the still could Mutual Mass. whether grant Mass. the same to Mutual authorized notwithstanding award, damages awarded. panel could have relief excessiveness, the and end presumptive its con- Fashioning the relief cannot be same Piambi- Accordingly, under controversy. appellate au- affront to the sidered as an to address” “free no, was district the rule. or to the mandate of this court thority to Mutual Mass. permit to issue and this Moreover, complain. The cannot Litman trial, if this new award, of a in lieu the pay right a him grant the to new panel did not ratio- /’s to Litman violence not do claims, majori- trial; “right” the the he ratio- J’s Litman whether To decide nale. him, merely the conse- ty accords district course the barred the nale gave panel explicit relief the quence of the ma- not, contrary we need pursued, Mass. Mutual. mandate reinterpret the suggestion, jority’s majority’s respond to the Finally, I must rule. to waive Mass. Mutual permitting fear that the position “potential same in the create a to a will are now its retrial We had Mass. Ante appellate system. have been of the panel would abuse” Litman [for] its clarify to fears panel apparently majority The that at 1515. requested Mutual pay the to success- allowing an who has appellant Mass. Mutual that permit mandate new exces- damages a challenged lieu of a award fully damages award in lieu of new pay between the sive to Indeed, only difference the trial.1 free” and flurry of “risk produce that will of the posture present the appeals. An examination ill-considered Mass. Mutual is that situation hypothetical might court, a party in which instances the three from the sought the relief damages as appealing an award Although consider panel. the than from rather puni- excessive, compensatory whether we should that procedure obviously not claims damages awarded in the amount request that This would tantamount 1. improperly enhanced damages were opinion and dismiss panel vacate error, type of claim appeal. of trial because I. prevailed on Mass. ground is excessive would that the award support did not evidence include claims tive, that such willing demonstrates fear is accept unwar- be something less than First, damages if full ranted. judgment. award is satisfaction of his Finally, if damages range higher award is by below the reasonable dictated than range reasonable dictated case, facts of facts of the the defendant will have case, the defendant will have an incen- appeal no incentive because he will most tive to appeal; few defendants readily ac- likely only possible lose. His incentive to quiesce in an exaggerated verdict. appeal plaintiff would be induce the I fail to see how granting a accept payment less full victorious than of his award appellant persuaded appel- appellate attorney’s to save —who fees and costs. late court that his adversary’s damages reflection, however, On the defendant will award is excessive and has been accorded a realize really that this is no incentive at all option trial —the of paying the exces- same, more, because he incur the will if not sive award and terminating the case will plaintiff, fees and costs than the and he encourage one appeal. even more incur will them earlier.3 granting of option such an possi- could not bly damage the federal system or Second, if the award is within impair orderly justice. administration of range reasonable dictated the facts On the contrary, by ridding the courts of case, defendant have a the burden of retrials that appel- successful slight appeal. incentive to The measure of avoid, lants wish to option the defendant’s will appeal incentive to benefit will de- pend on system.4 where within range reasonable fell, i.e., the award higher the award is I respectfully dissent. range, greater within the the incentive appeal. Again, in deciding whether to appeal, the defendant will realize sav- ing attorney’s fees and will probably costs plaintiff induce the to settle for less plaintiff

because the will know that

defendant’s fees and costs greater, bewill

and he will call the defendant’s bluff. words, other plaintiff post- will refuse a compromise

verdict settlement because he

will know that the defendant will have to

pay practically dollar for for any dollar

discount of obtain, i.e., the award he might will incur fees and costs in X defendant

amount to get plaintiff X accept (the amount plaintiff’s sum of the fees and costs) less. It is case where the very award is top close range reasonable plaintiff 3. The would pay filing defendant have to Cir.1985) (citation omitted)). fee Surely the pay preparation for the of the trial tran- majority cannot mean that a district court must script, expenses plaintiff, not borne always hold merely a new trial because the first, attorney's incur his fees his brief appellate court ordered one to cure the error being due first. If, appellant. suffered after the issuance mandate, of a new parties agree all to settle majority "[ejven argues also at the case, I any logic cannot conceive of or rule joint request litigants, the district court of law that would forbid the district court from may not deviate from the appel mandate of an closing the case. late court.” (quoting Calif., Ante Atsa of Inc. v. Continental Ins.

Case Details

Case Name: Bernard Litman v. Massachusetts Mutual Life Insurance Company

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 31, 1987

Citation: 825 F.2d 1506

Docket Number: 85-5939

Court Abbreviation: 11th Cir.