dissenting in which JOHNSON and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge, join:
I.
In Litman v. Massachusetts Mut. Life Ins. Co., 739 F.2d 1549 (11th Cir.1984) (hereinafter Litman I), a panel of this court held that the district court erred in submitting to the jury a claim of slander that the law does not recognize. The panel therefore set aside the jury’s award of compensatory damages on that claim. The panel also concluded that the district court’s error in submitting this claim to the jury might have influenced the jury’s assessment of the punitive damages the plaintiff, Bernard Litman, was entitled to receive on another claim of slander. Because the panel could not say that the error was harmless, it assumed that the error enhanced the punitive damages award and therefore set that award aside as well. The panel provided the only relief that could right the wrong Massachusetts Mutual Life Insurance Company (Mass. Mutual) had suffered; it ordered “the issue [of punitive damages] remanded for a new trial.” Litman I, 739 F.2d at 1562.
Following the panel’s decision in Litman I, Mass. Mutual decided to pay the punitive damages award and waive its right to a new trial. Mass. Mutual promptly notified the district court of its decision and requested the entry of a final judgment for Litman in the full amount of the award. Litman opposed Mass. Mutual’s request, arguing that the Litman I decision entitled him to a new trial on the issue of punitive damages.
The district court considered the mandate of the Litman I panel and determined that it could, consistent with the mandate, grant Mass. Mutual’s request. The court concluded that the Litman I panel had not foreclosed the possibility that “a Defendant, whose right to a new trial has been recognized by the Court of Appeals, [could] waive that right by offering to accept the original judgment, in the situation where the infirmity at the first trial necessarily inflated Plaintiff's recovery.” Because the district court believed that Mass. Mutual’s proposal would do Litman no injustice, indeed that it would give him the benefit of an improperly enhanced verdict, it required Litman to accept the payment.
II.
The majority chooses to present the district court’s action as a threat to the institutional power of appellate courts, the stability and predictability of the law, the law of the case doctrine, and the mandate rule. See ante at 1508-1512. I submit that the majority has, regrettably, failed to see the forest for the trees.
In Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986) (citations omitted), we set forth the law of this circuit regarding the mandate rule, stating the following:
A trial court, upon receiving the mandate of an appellate court, may not alter, *1519amend, or examine the mandate, or give any further relief or review, but must enter an order in strict compliance with the mandate. The trial court must implement both the letter and the spirit of the mandate, taking into account the appellate court’s opinion, and the circumstances it embraces. Although the trial court is free to address, as a matter of first impression, those issues not disposed of on appeal, it is bound to follow the appellate court’s holdings, both expressed and implied.
The Litman I panel explicitly ordered a new trial on the issue of punitive damages. In granting Mass. Mutual a new trial, however, the panel did not address, and thus its mandate did not answer, the question whether Mass. Mutual could still pay the punitive damages award, notwithstanding its presumptive excessiveness, and end the controversy. Accordingly, under Piambi-no, the district court was “free to address” this issue and to permit Mass. Mutual to pay the award, in lieu of a new trial, if this would not do violence to Litman /’s rationale. To decide whether Litman J’s rationale barred the course the district court pursued, we need not, contrary to the majority’s suggestion, reinterpret the mandate rule.
We are now in the same position as the Litman 1 panel would have been had Mass. Mutual requested that panel to clarify its mandate to permit Mass. Mutual to pay the punitive damages award in lieu of a new trial.1 Indeed, the only difference between the present posture of the case and that hypothetical situation is that Mass. Mutual sought the relief from the district court, rather than from the panel. Although this is obviously not a procedure that we should encourage, logic and common sense favor our approval of the district court’s decision.
The Litman I panel plainly had the power to amend its mandate to offer Mass. Mutual the choice of paying the punitive damages award or availing itself of a retrial. Cf. Wilson v. Taylor, 733 F.2d 1539, 1549-50 (11th Cir.1984) (ordering plaintiff to accept a remittur or granting defendant a new trial on the question of damages). The majority concedes as much. See ante at 1516. Furthermore, such an amendment would not have been inconsistent with, or precluded by, the panel’s rationale and holding. The question we must decide is whether the district court was somehow precluded from doing what the panel could, and no doubt would, have done. Common sense dictates that the district court was authorized to grant Mass. Mutual the same relief that the panel could have awarded. Fashioning the same relief cannot be considered as an affront to the appellate authority of this court or to the mandate rule. Moreover, Litman cannot complain. The panel did not grant him the right to a new trial; the “right” he claims, and the majority accords him, was merely the consequence of the explicit relief the panel gave Mass. Mutual.
Finally, I must respond to the majority’s fear that permitting Mass. Mutual to waive its right to a retrial will create a “potential [for] abuse” of the appellate system. Ante at 1515. The majority apparently fears that allowing an appellant who has successfully challenged a damages award as excessive 2 to pay the award in lieu of a new trial will produce a flurry of “risk free” and ill-considered appeals. An examination of the three instances in which a party might consider appealing an award of damages as excessive, whether compensatory or puni*1520tive, demonstrates that such fear is unwarranted. First, if the damages award is below the reasonable range dictated by the facts of the case, the defendant will have no incentive to appeal because he will most likely lose. His only possible incentive to appeal would be to induce the plaintiff to accept less than full payment of his award to save appellate attorney’s fees and costs. On reflection, however, the defendant will realize that this is really no incentive at all because he will incur the same, if not more, fees and costs than the plaintiff, and he will incur them earlier.3
Second, if the damages award is within the reasonable range dictated by the facts of the case, the defendant may have a slight incentive to appeal. The measure of the defendant’s incentive to appeal will depend on where within the reasonable range the award fell, i.e., the higher the award is within the range, the greater the incentive to appeal. Again, in deciding whether to appeal, the defendant will realize that saving attorney’s fees and costs will probably not induce the plaintiff to settle for less because the plaintiff will know that the defendant’s fees and costs will be greater, and he will call the defendant’s bluff. In other words, the plaintiff will refuse a post-verdict compromise settlement because he will know that the defendant will have to pay practically dollar for dollar for any discount of the award he might obtain, i.e., the defendant will incur fees and costs in X amount to get the plaintiff to accept X amount (the sum of the plaintiff’s fees and costs) less. It is only in the case where the damages award is very close to the top of the reasonable range that the plaintiff may be willing to accept something less than full satisfaction of his judgment. Finally, if the damages award is higher than the reasonable range dictated by the facts of the case, the defendant will have an incentive to appeal; few defendants readily acquiesce in an exaggerated verdict.
I fail to see how granting a victorious appellant — who has persuaded the appellate court that his adversary’s damages award is excessive and has been accorded a new trial — the option of paying the excessive award and terminating the case will encourage even one more appeal. The granting of such an option could not possibly damage the federal judicial system or impair the orderly administration of justice. On the contrary, by ridding the courts of the burden of retrials that successful appellants wish to avoid, the option will benefit the system.4
I respectfully dissent.
. This would be tantamount to a request that the panel vacate its opinion and dismiss the appeal.
. The ground that the award is excessive would include claims that the evidence did not support damages in the amount awarded and claims that the damages were improperly enhanced because of trial court error, the type of claim Mass. Mutual prevailed on in Litman I.
. The defendant would have to pay the filing fee and pay for the preparation of the trial transcript, expenses not borne by the plaintiff, and would incur his attorney's fees first, his brief being due first.
. The majority also argues that "[ejven at the joint request of the litigants, the district court may not deviate from the mandate of an appellate court.” Ante at 1516 (quoting Atsa of Calif., Inc. v. Continental Ins. Co., 754 F.2d 1394, 1396 (9th Cir.1985) (citation omitted)). Surely the majority cannot mean that a district court must always hold a new trial merely because the appellate court ordered one to cure the error suffered by the appellant. If, after the issuance of a new trial mandate, all parties agree to settle the case, I cannot conceive of any logic or rule of law that would forbid the district court from closing the case.