Rocho v. Life Ins. Co. of N. Am., 2013 U.S. App. LEXIS 24271 (6th Cir. Dec. 6, 2013):

Next, LINA argues that once the previous panel of this Court affirmed the district court's judgment and issued its mandate, the subsequent district court proceedings violated the law of the case doctrine. Specifically, LINA invokes two related law of the case concepts: (1) issues not raised in a previous appeal cannot be litigated later, and (2) the district court is bound to the scope of the mandate issued by a court of appeals, known as the mandate rule.

Plaintiff argues LINA has waived both law of the case arguments by failing to timely raise them and inviting the alleged error. LINA responds that the law of the case doctrine is jurisdictional and cannot be waived and, alternatively, that LINA did not waive the mandate rule argument because it raised the argument before the district court entered the final disgorgement order.

The Supreme Court has recently stated the law of the case doctrine "directs a court's discretion" but does not "limit the tribunal's power." Pepper v. United States, 131 S. Ct. 1229, 1250-51 (2011).bbbbbb  In accordance with that understanding, LINA's first argument -- that any argument not raised by Rochow on appeal cannot be litigated after the appeal -- has been found to be waivable. United States v. Gibbs, 626 F.3d 344, 344 (6th Cir. 2010). LINA failed to raise this argument until after the district court had ordered disgorgement, determined the method of calculating the disgorgement, and limited further briefing to objections to Rochow's calculation of the amount of the disgorgement. Because this argument exceeded the scope of the district court's allowance for the brief, it was essentially a motion for reconsideration. Absent a legitimate excuse, arguments raised for the first time in a motion for reconsideration are forfeited. United States v. Huntington Nat. Bank, 574 F.3d 329, 331-32 (6th Cir. 2009). LINA offers no excuse for the delay in raising the argument and the argument has therefore been forfeited.

  LINA's second argument is often described as the mandate rule, and although this Court has described the mandate rule as "a specific application of the law-of-the-case doctrine," it is a distinct concept which preserves the hierarchy of the court system. Scott v. Churchill, 377 F.3d 565, 570 (6th Cir. 2004) (quoting United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999)). The United States Supreme Court has not explicitly commented on the jurisdictional nature of the mandate rule and circuit courts remain split on whether a district court acting outside the scope of a circuit's mandate is acting without jurisdiction. United States v. Thrasher, 483 F.3d 977, 982 (9th Cir. 2007) (collecting cases).  See also Wright & Miller, Federal Practice and Procedure § 4478.3 (2d ed. 2013). In Tapco Products Company v. Van Mark Products Corp., 466 F.2d 109, 110 (6th Cir. 1972), this Court held that the district court was "without jurisdiction" to take an action inconsistent with the mandate of a previous appeal. Accordingly, the mandate rule implicates whether the district court had jurisdiction to consider disgorgement and is not an argument that LINA could waive.