concurring and dissenting:
I agree with the majority’s opinion to the extent that it reformulates our circuit’s absolute immunity analysis and remands to the district court for a determination whether the defendant Baker was either a complaining or lay witness during the preliminary hearing proceeding. I respectfully disagree with the portion of the opinion dealing with the law of the case regarding the defendant’s testimony before the state grand jury, and which, in my view, incorrectly places conditions and limitations on our court’s holding in Anthony v. Baker I.
I
My disagreement with the majority’s interpretation of our earlier decision in this case rests primarily on the majority’s statements that:
[W]e conclude that Anthony v. Baker I decided only that the district court erred in granting Baker absolute immunity for his entire grand jury testimony....
We did not decide that all grand jury witnesses lack absolute immunity, or even that Baker lacks immunity for each and every word of his grand jury testimony. Instead, without significant discussion, we reversed the district court’s holding affording blanket immunity for all statements at the grand jury proceeding, and we left it to the district court on remand to define the scope of immunity that attaches to grand jury testimony.
Ante at 1398.
I am unable to find anything in our earlier opinion which the district court could have possibly construed as an invitation to reexamine the absolute immunity issue after we had just reversed the court on that very point. Our holding in Anthony v. Baker I was not narrow in those respects, but precise as covering the grand jury immunity issue completely. Anthony v. Baker I held:
We also concur in Anthony’s contention that, contrary to the district court’s finding, Briscoe v. LaHue does not afford immunity for the testimony of the defendants before the Grand Jury. As Anthony points out, this very question was reserved by the Court[.]
767 F.2d at 663. This flat rejection of Baker’s claim of immunity “for the testimony of the defendants before the Grand Jury,” in no way justifies our now shrinking the holding down as not covering “each and every word” of the grand jury testimony. By narrowing our earlier ruling on absolute immunity to a mere finding of technical error at the pretrial stage, the majority concedes that this court reached a conclusion on the absolute immunity issue. However, the majority does not acknowledge that we had a reason to reverse the district court’s ruling.1
*1403Our opinion in Anthony v. Baker I does not hold that the denial of absolute immunity hinges upon a finding that Baker was a complaining witness whose testimony initiated or perpetuated the prosecution. Our court instead plainly held that Baker was not entitled to absolute immunity for his testimony “before the Grand Jury.” In my judgment that became and is the law of the case. This clear holding was conscientiously and correctly applied by the district court in its order, which is the subject of this appeal. The court quoted the holding that “Briscoe v. LaHue does not afford immunity for the testimony of the defendants before the Grand Jury. Anthony, 767 F.2d at 663.” See Anthony v. Baker, No. 82-B-1025 (D.Colo. Apr. 3, 1990) (order denying defendants’ motion to dismiss).
In United States v. Monsisvais, 946 F.2d 114, 116 (10th Cir.1991), our court recently applied the doctrine of the law of the case. There, we approved the rule that:
[wjhen a case is appealed and remanded, the decision of the appellate court establishes the law of the case and it must be followed by the trial court on remand. If there is an appeal from the judgment entered after remand, the decision on the first appeal establishes the law of the case to be followed on the second.
(citation and quotation omitted) (emphasis changed); see also White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967) (law of the case must be followed in subsequent proceedings in same case in trial court or on a later appeal). Thus, we have the plain duty to follow here the entire holding of Anthony v. Baker I, and have no right to dissect that holding, applying the part we would follow and throwing away that which we want to ignore.
There are exceptions to the law of the case doctrine, which are also plainly stated in Monsisvais, 946 F.2d at 117:
Nevertheless, the circumstances justifying a departure from the law of the case are narrow. The most widely quoted statement is by former Tenth Circuit Chief Judge Orie Phillips, sitting in another circuit, that the law of the case must be followed ‘unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.’ White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967) (footnote omitted)[.]
Within these clear parameters which our court has stated, there is no exception which justifies our disregard of the law of the case established in Anthony v. Baker I. Specifically, with respect to this case there has been no new evidence presented below since there have been no proceedings and Anthony’s claim has not been allowed to go to trial.2 Moreover, there has been no direct change in the controlling authority, and there is no showing that a manifest injustice would result from the application *1404of the denial of absolute immunity for Baker respecting his grand jury testimony. Indeed, it would be unjust now to change the earlier ruling in Anthony v. Baker I merely because time has passed and Baker’s earlier rejected arguments are improved by persuasive, but not controlling, new authority from other circuits which develops new conditions or limitations to immunity law. As a result of defendant Baker’s two appeals, and a lengthy stay granted when he filed for bankruptcy, Anthony’s § 1983 claim remains in limbo. Indeed, this case has yet to be presented to a petit jury for trial, despite the fact that the underlying incident from which it arose occurred over ten years ago.
With respect to the controlling authority issue, the majority’s opinion relies significantly on the Second Circuit’s opinion in White v. Frank, 855 F.2d 956 (2d Cir.1988). In White, the court of appeals interpreted the change to witness immunity analysis announced in Briscoe, supra, by the Supreme Court’s 1986 opinion in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Malley, which was decided after our opinion in Anthony v. Baker I, held that “complaining witnesses” were not entitled to absolute immunity at common law. However, it is not any application of “controlling” authority of the Supreme Court in Malley or Briscoe that the majority opinion relies on here, but instead the majority opinion applies the interpretation of those cases in White v. Frank3 While the Second Circuit’s opinion is persuasive and should perhaps be adopted, it is not “controlling” authority which permits this panel to disregard the unqualified determination made in Anthony v. Baker I on Baker’s lack of absolute immunity for his grand jury testimony. For us to do otherwise would mean that the district courts would, after a definitive appellate decision by our court, nevertheless have to search the opinions of other circuits for intervening holdings that might justify disregarding our own appellate holding.
The law of the case doctrine promotes finality and serves to prohibit litigants from constantly reopening earlier decided issues by taking repeated appeals. The policy seems particularly appropriate where, as here, the issue involved is steadily evolving, and the gap between appeals in the same litigation would provide the parties with new, albeit not controlling authority, on which to endlessly reargue formerly decided issues. Therefore, I must disagree with the reinterpretation made by the majority to allow Baker to reopen the issue of his claimed absolute immunity for his grand jury testimony.
II
As noted earlier, however, I do agree in important respects with the majority opinion. Although the law of the case should bar use of the White v. Frank analysis rendered subsequent to our Anthony v. Baker I ruling to reargue Baker’s position as to his grand jury testimony, I agree that there is no justification to apply the law of the case with respect to his preliminary hearing testimony. The majority correctly recognizes that the Anthony v. Baker I court was neither presented with this aspect of the immunity question, nor did it purport to speak to that issue. See ante at 1401.
Accordingly, I agree that the White v. Frank analysis, and its complaining-lay witness distinction with respect to Baker’s preliminary hearing testimony, applies to this case. The majority correctly concludes that a remand for fact-finding for this purpose is necessary. Anthony v. Baker I did not address this issue and thus the law of the case doctrine does not apply in this regard, and this panel should give the defendant Baker the benefit of the evolution *1405of immunity law that has occurred since the first appeal on that issue respecting his preliminary hearing testimony.
. Although we noted in Anthony v. Baker I that the Supreme Court had reserved the question in *1403Briscoe on the immunity afforded to witnesses at nontrial proceedings, this finding alone would not have justified reversal. Rather, our discussion about Baker’s grand jury immunity came in the context of analyzing plaintiff Anthony’s broader claims. There, we stated that "state and federal officers are liable under § 1983 and § 1985(2) when they conspire to procure groundless state indictments and charges based upon ... false, distorted, perjurious testimony presented to official bodies in order to maliciously bring about a citizen’s trial or conviction.” Id. at 662.
We noted that "Anthony did present evidence upon which a jury could find that Baker’s participation in ... the Grand Jury proceedings so tainted the proceedings as to constitute 'egregious conduct’ and deny him his due process rights to a probable cause determination.” Id. at 663. Read in this context, I believe we clearly held that Baker lacked immunity for his grand jury testimony because Briscoe had yet to be extended beyond the trial context and Baker had not identified a basis for common law immunity which supplied what Briscoe did not. Without such reasoning, any district court error found by this court would not have been worth noting.
. Of course, implicit in the "new evidence” exception is a bar against the use of a remand to generate evidence intended to undermine the earlier appellate holding. See, e.g., Monsisvais, 946 F.2d at 118 (government not permitted "to make its case again” after earlier failure to justify warrantless search); Fox v. Mazda Corp. of America, 868 F.2d 1190, 1194-95 (10th Cir. 1989) (new evidence on damages may not go beyond "bounds of our remand”).
. The majority opinion remands to permit the defendant Baker to attempt to demonstrate he was not a complaining witness, but merely a lay witness, and therefore absolutely immune for his pretrial and grand jury testimony. However, in his brief to us he criticized White v. Frank for its effort to differentiate instances in which a government official was simply a witness, a complaining witness, or an initiator of criminal proceedings, concluding that "such distinctions are unworkable as a means of applying the Briscoe ‘functional category' analysis.” Appellant’s Brief at 6.