                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                          FEBRUARY 3, 2009
                             No. 08-13646
                                                          THOMAS K. KAHN
                       ________________________
                                                              CLERK

                  D. C. Docket No. 04-00562 CV-4-CLS

WENDELL F. GILLEY, an individual and
as class representative,

                                                           Plaintiff-Appellant,

                                  versus

MONSANTO COMPANY, INC., a corporation,
MONSANTO COMPANY SALARIED EMPLOYEES’
PENSION PLAN, et al.,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                            (February 3, 2009)

Before MARCUS, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:
      After oral argument and careful consideration, we conclude that the

judgment of the district court is due to be affirmed. We conclude that plaintiff

cannot circumvent the law of the case established in Gilley v. Monsanto Co., Inc.,

490 F.3d 848 (11thCir. 2007). Therefore, plaintiff’s claims in Count I and V are

foreclosed. With respect to his claim based upon new evidence, we conclude that

the evidence is not new, and that plaintiff had ample opportunity to present that

evidence in the hearing before the district court prior to the first appeal. Nor is

there any other meritorious exception to the law of the case. With respect to

plaintiff’s claims in Counts II, III and IV, plaintiff’s initial brief on appeal failed to

preserve the claims, and in any event the claims are without merit.

      AFFIRMED.




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