                UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                         No. 02-30325


                     JAMES P. LOGAN, JR.,

                                                        Plaintiff,

                            versus

        BURGERS OZARK COUNTRY CURED HAMS INC.; ET AL.,

                                                      Defendants.


                     JAMES P. LOGAN, JR.,

                                            Plaintiff-Appellant,

                            versus

  ORIGINAL HONEY BAKED HAM COMPANY OF GEORGIA, Etc.; ET AL.,

                                                      Defendants,

ORIGINAL HONEY BAKED HAM COMPANY OF GEORGIA, doing business as
 Honeybaked Ham Co.; HONEYBAKED FOODS INC., doing business as
                      Honeybaked Ham Co.,

                                            Defendants-Appellees.


         Appeal from the United States District Court
             for the Western District of Louisiana
                          (97-CV-1363)


                        March 12, 2003
Before GARWOOD, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     This appeal is from the district court’s 29 January 2002

reentry of an order post-appellate mandate; it originally entered

the order in May 2000, shortly after the notice of appeal was

filed.   At issue is whether a district court may amend an order of

dismissal, more than one year after it was entered, to state the

original dismissal was with prejudice, even though the new order

follows an appellate mandate, issued after, and based upon, the

appellate    holding   that   the   original   dismissal   was   without

prejudice.     The 29 January 2002 order at issue is VACATED.

                                    I.

     James P. Logan holds a method patent for spirally-slicing

meat.    In July 1997, Logan filed a patent infringement action

against Original Honey Baked Ham Company of Georgia and Honeybaked

Foods, Inc. (collectively Honeybaked).         To resolve the dispute,

Logan and Honeybaked entered into a licensing agreement, with

Honeybaked to pay royalties on spirally-sliced meat product sales.

Upon Logan's learning that Honeybaked discontinued these sales,

Logan reinstituted the patent infringement claim, adding breach-of-

contract, fraud, and Lanham Act claims.




     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                    2
     Trial was bifurcated, with the non-patent claims tried first.

For those claims, a jury awarded damages against Honeybaked for

approximately $9 million.

     Logan then moved to dismiss, with prejudice, his pending

patent claims. On 9 August 1999, those claims were dismissed; but,

the order did not specify whether the dismissal was with prejudice.

That same day, by separate order, the district court stated the

action was “dismissed in its entirety”.    Logan v. Burgers Ozark

Country Cured Hams, Inc., No. 97-CV-1361 (W.D. La. 9 Aug. 1999)

(order denying as moot motions by Honeybaked for summary judgment

and by Logan to suppress).   Following consideration of attorney's

fees, final judgment was entered in February 2000.

     Later that month, Honeybaked requested judgment as a matter of

law (JMOL).   Approximately two months later (19 April 2000), the

district court vacated all damages awarded against Honeybaked,

stating:   “[Logan] has been returned to his original position

because he is able to file suit on his patent claim”.   Logan, No.

97-CV-1361 (W.D. La. 19 Apr. 2000) (emphasis added; memorandum

ruling on Honeybaked’s JMOL motion).      On 10 May 2000, without

citing a Federal Rule of Civil Procedure granting the district

court authority to do so, Honeybaked moved the court “to amend” the

19 April order to state that, the prior August, Logan’s patent

claims had been dismissed with prejudice and Logan had not been

“returned to [his] original position”.


                                3
     Concerning the 19 April ruling granting JMOL to Honeybaked,

and while Honeybaked's 10 May motion was pending, and unsure

whether this circuit or the Federal Circuit had jurisdiction, Logan

filed an appeal with each on 16 May 2000, shortly before the time

to appeal lapsed.    One day later, however, the district court

granted   Honeybaked’s   10   May   motion:   “[T]he   [19   April   1999]

Memorandum Ruling will be corrected to state that [Logan] had moved

to dismiss with prejudice his patent infringement action against

[Honeybaked] and the Court had granted that motion with prejudice”.

Logan, No. 97-CV-1361 (W.D. La. 17 May 2000) (emphasis added; order

amending 19 April 1999 memorandum ruling).

     That December, the Federal Circuit, in ruling on Logan's

motion to dismiss his appeal, refused to do so, based on its having

jurisdiction.    Logan v. The Original Honey Baked Ham Co. of

Georgia, Inc., No. 00-1389 (Fed. Cir. 20 Dec. 2000) (single-judge

order denying Logan’s motion to dismiss).      Four months later, that

court stayed the appeal pending resolution of the parallel appeal

in our court.   Logan, No. 00-1389 (Fed. Cir. 24 Apr. 2001) (order

granting Logan’s unopposed motion to stay).

     And, approximately four months after that ruling (September

2001), our court held it had jurisdiction; the JMOL was affirmed.

Regarding whether the dismissal had been with prejudice, our court

held:

           [U]nder Federal Circuit precedent, the key
           inquiry in this case is whether the dismissal

                                    4
          of [Logan's] patent claims was with or without
          prejudice.... Because the district court was
          without jurisdiction to enter the May 17th
          order [(post-notice of appeal)]and because the
          correction made therein was not clerical but
          substantive, we find that the dismissal of the
          patent    claims   was   without    prejudice.
          Accordingly, the Federal Circuit’s precedent
          holding that it lacks jurisdiction over non-
          patent   claims   where  patent   claims   are
          dismissed without prejudice from complaints
          containing multiple claims is applicable in
          this   case.      Thus,   we   conclude   that
          jurisdiction is proper in this Court, not in
          the Federal Circuit.

Logan v. Burgers Ozark Country Cured Hams, Inc., 263 F.3d 447, 453-

54 (5th Cir. 2001) (Logan I; emphasis added).

     Following our court's decision, and while this second appeal

was pending here, the Federal Circuit, in August 2002, dismissed,

for lack of jurisdiction, Logan's original May 2000 appeal.            Logan

v. The Original Baked Ham Co. of Georgia, Inc., No. 00-1389 (Fed.

Cir. 2 Aug. 2002) (unpublished order dismissing appeal).                The

Federal Circuit held:        its earlier single-judge order did not

create the law of the case; Logan I's holding our court had

jurisdiction in the parallel appeal was the law of the case; and

the Federal Circuit would follow that Logan I decision, because

there were no exceptional circumstances.

     After our mandate for Logan I issued on 18 October 2001,

Honeybaked moved the district court to reenter the 17 May 2000

order which   had   stated   the   patent   claims   dismissal   was   with

prejudice. Once again, Honeybaked did not reference a Federal Rule

                                    5
of Civil Procedure vesting the district court with authority to do

so.

      The district court granted the motion, however, relying on

Standard Oil Co. of California v. United States, 429 U.S. 17

(1976).    The district court concluded:   it had an “inherent power

and discretion to act on its own after [the] mandate issued”; the

law-of-the-case doctrine did not apply because Logan I only held

the 17 May 2000 order ineffective because the district court lacked

jurisdiction; and, post-appeal, it had jurisdiction to reenter that

order.    Logan, No. 97-CV-1361 (W.D. La. 29 Jan. 2002) (memorandum

ruling reentering 17 May 2000 order).

      Logan again appealed to both our circuit and the Federal

Circuit.     The Federal Circuit heard oral argument on 7 January

2003; approximately one month later, oral argument was held in our

court.     As of the rendition of this opinion, the Federal Circuit

has not ruled.

                                 II.

      By reentering the 17 May 2000 order, the district court

violated the law of the case and, in the alternative, the Federal

Rules of Civil Procedure.

      As noted, the district court, in reentering the May 2000

order, relied on its “inherent power” and referenced Standard Oil;

that opinion discusses Rule 60(b) motions.    Although it did not do




                                  6
so in district court, Honeybaked now claims Rule 60(b) grants such

authority.

     Generally, Rule 60(b) rulings are reviewed only for abuse of

discretion.   E.g., Edward H. Bohlin Co., Inc. v. Banning Co., Inc.,

6 F.3d 350, 353 (5th Cir. 1993).        Here, however, we are not

reviewing the merits of the reentered May 2000 order; instead, we

are deciding whether the district court had authority, post-Logan

I, to take such action.   This is a purely legal issue, reviewed de

novo.   See, e.g., Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir.)

(decisions under Rule 60(b)(4) reviewed de novo because such

motions “leave no margin for consideration of the district court’s

discretion as the judgments themselves are by definition either

legal nullities or not”), cert. denied, 525 U.S. 1041 (1998).

                                 A.

     Logan contends:   in Logan I, our court held the dismissal was

without prejudice; under the law of the case, the 17 May 2000

order, amending the dismissal to be with prejudice, could not be

reentered post-Logan I.   Honeybaked responds:   our court only held

the district court was without jurisdiction to enter the 17 May

2000 order after the first notice of appeal (16 May 2000); because

the district court reacquired jurisdiction after the Logan I

mandate issued in October 2001, the district court had authority to

reenter the order under Rule 60(b), pursuant to Standard Oil.



                                 7
     Standard Oil, which concerned a Rule 60(b) motion based on

alleged misconduct by the Government's counsel and a material

witness, 429 U.S. at 17, only decided whether, post-appellate

mandate, a district court must request leave from the appeal court

before ruling on a Rule 60(b) motion.     The Supreme Court held it

did not.

            Like the original district court judgment, the
            appellate mandate relates to the record and
            issues then before the court, and does not
            purport to deal with possible later events.
            Hence, the district judge is not flouting the
            mandate by acting on the motion.

Id. at 18 (emphasis added).

     This holding follows the contours of the law-of-the-case

doctrine.

            While the “law of the case” doctrine is not an
            inexorable command, a decision of a legal
            issue or issues by an appellate court
            establishes the “law of the case” and must be
            followed in all subsequent proceedings in the
            same case in the trial court or on later
            appeal in the appellate court, 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 manifest
            injustice.

White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967) (footnotes

omitted).    See Arizona v. California, 460 U.S. 605, 618-19 (1983)

(under law-of-case doctrine, when court decides rule of law, that

decision continues to govern same issue, but jurisdiction retained

“to accommodate changed circumstances”, citing White v. Murtha).

                                  8
In other words, the district court cannot disturb the mandate,

which “relates to ... issues then before the [appellate] court”; on

the other hand, the district court may, of course, “deal with ...

later events”.    Along this line, the district court is bound by

“things decided by necessary implication as well as those decided

explicitly”. Terrell v. Household Goods Carriers’ Bureau, 494 F.2d

16, 19 (5th Cir.), cert. denied, 419 U.S. 987 (1974).

     Reentry of the 17 May 2000 order concerned an issue decided in

Logan I.   That opinion held the district court’s dismissal was

without prejudice.      263 F.3d at 454.     This became the law of the

case; the district court could not subsequently reenter an order

contradicting    that    mandate.        Further,   there   was   no   new,

substantially     different     evidence;      intervening,       contrary,

controlling law; or a clearly erroneous decision in Logan I.

                                    B.

     In the alternative, the district court did not have authority

under the Federal Rules of Civil Procedure to reenter the order.

Post-mandate, neither Honeybaked’s motions nor the district court’s

order addressed which Rule provided authority to reenter the 17 May

2000 order.     As noted, the district court did refer to Standard

Oil, which discussed Rule 60(b).         On appeal, Honeybaked contends

the district court had authority to reenter the order based on

Rules 60(b)(1) and 60(b)(6). In this instance, however, Rule 60(b)

proscribes the district court's reentering the order.


                                    9
                                       1.

     Under Rule 60(b)(1), and upon motion, the district court may

relieve a party from a final order as a means of correcting

“mistake, inadvertence, surprise, or excusable neglect”.                        The

motion, however, must be made “not more than one year after the ...

order”.     FED. R. CIV. P. 60(b).      On 30 November 2001, Honeybaked

moved to reenter the 17 May 2000 order, amending the 9 August 1999

and 19 April 2000 orders.        The motion was more than a year after

these orders, and the appeal did not toll the one-year period.

E.g., Newball v. Offshore Logistics Int'l, 803 F.2d 821, 827, n.4

(5th Cir. 1986).

                                       2.

     Rule    60(b)(6)   allows    amendment         for   “any    other     reason

justifying relief from the operation of the judgment”.                    The rule

only requires the motion be made in a reasonable time.                     Subpart

(b)(6), however,     may   not   be   used     to   circumvent    the     one-year

limitation    period,   where,   as    here,    the   reason     for   relief    is

embraced in subpart (b)(1).       Newball, 803 F.2d at 827; Gulf Coast

Building and Supply Co. v. Int'l Brotherhood of Electrical Workers,

Local No. 480, AFL-CIO, 460 F.2d 105, 108 (5th Cir. 1972).

                                      III.

     For the foregoing reasons, and pursuant to Logan I, the

dismissal of Logan’s patent claims remains without prejudice.




                                       10
Accordingly, the district court’s reentry of the 17 May 2000 order

is

                                                      VACATED.




                               11
