dissenting:
As Oscar Wilde once noted: “In this world there are only two tragedies. One is not getting what one wants, and the other is getting it.”1 Massachusetts Mutual got what it wanted. It appealed the results of the first trial. Among other issues, it challenged the award of punitive damages. Finding problems with the particular award based upon alleged slanderous statements, we affirmed most of the results but vacated the award of $250,000 and remanded for a new trial. Litman v. Massachusetts Life Insurance Co., 739 F.2d 1549 (11th Cir.1984). Rather than face the obvious consequences of such a proceeding, Massachusetts Mutual now "waives” its right to a new trial and agrees to the reinstatement of the earlier verdict and judgment. The trial court allowed this tactic and the majority now adds its stamp of approval. I respectfully dissent.
Much can be said, and has been, about the parties’ motives. Neither is before us on behalf of the integrity of the judicial system. Both are interested in one thing— money. This is not evil, merely the reality of this case.
Frankly, the result in this case is probably just. The first trial involved many hotly contested issues. All were resolved in a fair trial. The overall perspective and balance of such a proceeding is certainly better than a trial on only one issue — particularly one such as punitive damages after an affirmance of liability. But that is not the issue.
The only issue before us is whether a successful appellant can change its mind and by its unilateral action modify the mandate of this court. I would hold that it cannot. Litigants are always required to “weigh” the prospects of trials and appeals. The list of “what ifs” is endless. But the process does require some order. Courts do not operate at the whim of the parties. Piambino v. Bailey, 757 F.2d 1112 (11th Cir.1985) may not be absolutely rigid but surely it stands for something.
*860Massachusetts Mutual raised many issues on its appeal. It was partially successful. The concluding paragraph of our opinion reads:
We hold that the statement made by James Martin of Mass Mutual to Lit-man’s prospective employer cannot as a matter of law be actionable as slander, we accordingly reverse the award of $100,000 based upon this statement. We likewise hold that the award of punitive damages must be reversed and the issue remanded for a new trial. As to all other claims, the judgment of the district court is affirmed.
Litman, 739 F.2d at 1562.
The mandate of this court ordered a new trial on the issue of punitive damages.
The law of our circuit concerning the obligations of a trial court to follow our mandates is clear and settled. In Piambi-no, Judge Tjoflat spelled it out in simple direct terms:
A trial court upon receiving the mandate of an appellate court, may not alter, amend, or examine the mandate, or give any further relief or review, but must enter an order in strict compliance with the mandate. In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895). The trial court must implement both the letter and the spirit of the mandate, Nixon v. Richey, 513 F.2d 430, 435-36 (D.C.1975), aff'd on other grounds, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 541 (8th Cir.1975) (en banc), taking into account the appellate court’s opinion, In re Sanford Fork & Tool Co., 160 U.S. at 256, 16 S.Ct. at 293 (1895); Cherokee Nation v. Oklahoma, 461 F.2d 674, 678 (10th Cir.), cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 489 (1972), and the circumstances it embraces. Sherwin v. Welch, 319 F.2d 729, 731 (D.C.Cir.1963). Although the trial court is free to address, as a matter of first impression, those issues not disposed of on appeal, Holcomb v. United States, 622 F.2d 937, 940 (7th Cir.1980); see also, Dorsey v. Continental Casualty Co., 730 F.2d 675, 678, 679 (11th Cir.1984), it is bound to follow the appellate court’s holdings, both expressed and implied. Cherokee Nation, 461 F.2d at 678; see also, IB J. Moore, J. Lucas, & T. Currier Moore’s Federal Practice ¶ 0.404[10] (2d ed. 1984). If the trial court fails fully to implement the mandate, the aggrieved party may apply to the appellate court for enforcement, by petitioning for a writ of mandamus.
The “mandate rule,” as it is known, is nothing more than a specific application of the “law of the case” doctrine. Greater Boston Television Corp. v. Federal Communications Commission, 463 F.2d 268, 279 (D.C.Cir.1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972); City of Cleveland v. Federal Power Commission, 561 F.2d 344, 348 (D.C.Cir.1977). This doctrine stands for the proposition that an appellate decision on an issue must be followed in all subsequent trial court proceedings unless the presentation of new evidence or an intervening change in the controlling law dictates a different result, or the appellate decision is clearly erroneous and, if implemented, would work a manifest injustice. Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir.1984); Baumer v. United States, 685 F.2d 1318, 1320 (11th Cir.1982) (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967).
Piambino, 757 F.2d at 1119-20.
It is not even contended that any of the exceptions mentioned in Piambino exist here. To suggest that the trial court did not commit error because “he thought he was interpreting the mandate, not altering, amending, or ‘examining,’ it,” ante at 857, begs the question. I’m certain the trial judge in Piambino “thought” he was interpreting the mandate and not altering or amending it.
Massachusetts Mutual did not withdraw its appeal. It filed no motions in this court to modify or amend the mandate based *861upon its “waiver of its new found right to a new trial.
The panel has no right to overrule Piam-bino, directly or indirectly. Our en banc court can take such action but only in accord with proper procedures.
Under the rule announced by the majority, a defendant in a personal injury action might successfully appeal an adverse verdict and yet, thereafter, decide to “waive” a retrial because the plaintiff had since died and the exposure had increased. The reversal might have been based upon “inflated” damages for lost earnings, etc. Retrials are always risky. Life in not static. One party or the other will most often profit.
This “new rule” may shorten some proceedings in the trial courts (although I doubt it) but it will surely multiply appeals geometrically. It will also lead to much uncertainty as litigants suggest their versions of how to interpret a mandate. The “mandate rule” as discussed in Piambino is designed to eliminate uncertainty and game playing.
I would require the trial court to proceed with the retrial of punitive damages as ordered.
. Lady Windermer’s Fan, Act III, (1892). This may be the source of the oft repeated caveat given children by some parents, "Be careful what you pray for as you may get it!”