                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 05-35929
                Plaintiff-Appellee,          D.C. Nos.
               v.                        CV-03-00204-RE
RONALD THRASHER,                          CR-98-00388-RE
             Defendant-Appellant.
                                            OPINION

       Appeal from the United States District Court
                for the District of Oregon
       James A. Redden, District Judge, Presiding

                 Argued and Submitted
          August 23, 2006—Seattle, Washington

                   Filed April 18, 2007

     Before: J. Clifford Wallace, Ronald M. Gould, and
             Marsha S. Berzon, Circuit Judges.

                Opinion by Judge Wallace;
               Concurrence by Judge Berzon




                           4411
                 UNITED STATES v. THRASHER             4413


                        COUNSEL

Per C. Olson, Hoevet Boise & Olson, P.C., for the defendant-
appellant.

Gary Y. Sussman, Assistant United States Attorney, Portland,
Oregon, for the plaintiff-appellee.
4414              UNITED STATES v. THRASHER
                         OPINION

WALLACE, Senior Circuit Judge:

  Thrasher appeals from the district court’s denial of his 28
U.S.C. § 2255 petition. We have jurisdiction pursuant to 28
U.S.C. § 2253, and we affirm.

                              I

   In April 1997, Tia Carlson was driving a Ford automobile
in Gresham, Oregon. Thrasher was in the passenger seat. Offi-
cer Durbin of the Gresham Police Department stopped the
Ford after observing several traffic violations. When Carlson
admitted that she had recently used methamphetamine, Offi-
cer Durbin arrested her for driving under the influence of an
intoxicant and placed her in his police car.

   Officer Durbin returned to the Ford, where he informed
Thrasher that Carlson was under arrest and that he would
impound the vehicle. Thrasher showed Officer Durbin an
Oregon driver’s license, which falsely indicated that his name
was Trevor Shaw. Officer Durbin told Thrasher that he was
free to go, and Thrasher departed on foot.

   When Officer Durbin searched the Ford, he discovered a
briefcase containing a loaded .380 caliber semi-automatic pis-
tol. Carlson first denied knowing anything about the briefcase
and its contents, but later at the police station her story
changed. According to Officer Durbin, she stated “that she
knew that the gun was in the briefcase and knew who the
briefcase belonged to.” Thrasher was subsequently appre-
hended and indicted for being a felon in possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1). The case went to
trial.

  During opening argument, Storkel, Thrasher’s counsel,
advised the jury that it would hear testimony from Thrasher’s
                  UNITED STATES v. THRASHER                   4415
former girlfriend, Renee Scarlett (or Rene Scarlet). Storkel set
forth the following theory of the case:

    Well, Rene Scarlet and Ronald Thrasher had a fight
    and they broke up. And, Mr. Thrasher, when he left
    Rene Scarlet’s house, he had a hairbrush, that was it
    because she wanted him out; and he got out. All he
    left with is a hairbrush. And, when he went with that
    hairbrush, he got a ride from a tall skinny friend who
    took him over to his sister’s house and dropped him
    off. He was there for three days before Tia Carlson
    ever shows up.

    We are also going to find out how the stuff got in the
    car — how Mr. Thrasher’s stuff got in the car.

    The stuff that belonged to Mr. Thrasher got in that
    car because it was packed up by Rene Scarlet; and,
    Tia Carlson went over and picked up a whole bunch
    of items of Mr. Thrasher’s and put them in the car;
    and, there was also some things that didn’t belong to
    Mr. Thrasher that went into that car and were packed
    up.

    One of the items that didn’t belong to him, it wasn’t
    his and he had no idea in this big jumble of stuff that
    was there when Tia Carlson came to pick him up
    was this handgun.

   Carlson testified that two days before her arrest, Thrasher
called her and indicated that he had been fighting with Scar-
lett. Carlson said that she picked up Thrasher’s belongings at
Scarlett’s house and met with him at a motel; that Trasher had
a briefcase with him at the time; that after spending the night
together in the motel, she and Thrasher went to the home of
his sister, Laurie Odom; and that while there, Thrasher
showed both Carlson and Odom the contents of the briefcase,
which included the pistol. Carlson testified that she and
4416              UNITED STATES v. THRASHER
Thrasher were stopped in the Ford after spending the night at
Odom’s house.

   Odom, by contrast, testified that Thrasher arrived at her
house three days prior to Carlson’s arrest and that Thrasher
remained at her home during those three days until Carlson
picked him up in the Ford, which was packed with clothes and
“stuff.” Odom testified that she never saw Thrasher with
either a briefcase or a firearm during his stay at her home.
Scarlett was not called to testify.

   Thrasher was convicted. After unsuccessfully pursuing
direct appeal of his conviction, see United States v. Thrasher,
No. 00-30143, 14 Fed. Appx. 966 (9th Cir. July 30, 2001)
(unpublished), Thrasher filed a section 2255 petition, in which
he argued that the government had engaged in misconduct
and that he had been denied effective assistance of counsel.
Thrasher alleged that Storkel “fail[ed] to investigate, inter-
view and call as witnesses at trial” various people, including
Scarlett, and that Storkel failed to object to testimony that
Thrasher had warrants outstanding for his arrest.

   In response to the section 2255 petition, the government
offered Storkel’s affidavit, which indicated that he was plan-
ning to call Scarlett as a witness until she approached him
during a break in trial and said that “she would not lie for
[Thrasher]” and that she was “going to tell the truth, which
would not be helpful to [Thrasher’s] case.” Storkel’s affidavit
also stated that he consulted with Thrasher, who indicated that
he would leave the decision whether to call Scarlett as a wit-
ness to Storkel’s “professional judgment.” According to Stor-
kel, it was on this basis that he decided not to call Scarlett.

   Thrasher, on the other hand, stated in his affidavit that
“Storkel never sought input from [him] before deciding to not
call [Scarlett]” and that he never told Storkel that he would
leave the decision whether to call Scarlett to Storkel’s “pro-
fessional judgment.” Thrasher also stated that Scarlett had
                  UNITED STATES v. THRASHER                4417
told him that “when she showed up to testify, . . . Storkel sim-
ply told her to leave,” and that she did not tell him that she
advised Storkel that she would testify in a way that was harm-
ful to Thrasher’s case.

   The district court denied the section 2255 petition without
holding an evidentiary hearing. On appeal, we held that in the
absence of any “record evidence upon which Thrasher’s cred-
ibility could be determined,” remand was necessary “for a
hearing to resolve a critical disputed fact: whether Scarlett
told Storkel that she was going to testify unfavorably to
Thrasher.” United States v. Thrasher, No. 03-35679, 122 Fed.
Appx. 876, 877 (9th Cir. Nov. 29, 2004) (unpublished)
(Thrasher I). “This factual dispute,” we continued, was “cen-
tral to the reasonableness of Storkel’s decision not to call
Scarlett.” Id. We emphasized that the district court’s order
was vacated only “to the extent the petition raises claims
based on Storkel’s mid-trial decision not to call Scarlett.” Id.
This reflected our determination that the district court had
“properly rejected” Thrasher’s remaining arguments, includ-
ing his argument “that Storkel provided ineffective assistance
by not investigating Scarlett more carefully before mentioning
her as a witness in his opening statement.” Id.

   On remand, the district court held an evidentiary hearing,
at which Scarlett, Odom, and Storkel, among others, testified.
During cross-examination, Storkel identified a Bureau of
Alcohol, Tobacco and Firearms (ATF) investigative report
and indicated that he may have received the report from the
government before trial. The report relates to three telephone
conversations between Scarlett and ATF Special Agent Lyon.
At the hearing, Thrasher’s appellate counsel suggested that
the report constituted “evidence . . . that’s contrary to what
[Storkel] expected [Scarlett] to testify to[.]”

  Ultimately, however, the district court rejected Thrasher’s
argument based on the ATF report that “Storkel should have
known that Scarlett might change her testimony, and that
4418               UNITED STATES v. THRASHER
Storkel should have verified Scarlett’s testimony before men-
tioning her during his opening statement.” United States v.
Thrasher, Nos. CR 98-388-RE, CV 03-204-RE, at 9 (D. Or.
July 6, 2005) (unpublished) (Thrasher II). The district court
held that Thrasher I, which did not address the ATF report,
nonetheless foreclosed consideration of an ineffective assis-
tance of trial counsel argument based on the contents of the
report.

  The district court went on to determine, “[i]n response to
[our] narrow question on remand,” that

    Storkel and Yarbrough [Storkel’s hired private
    investigator] gave credible, unequivocal, and consis-
    tent testimony about their interactions with both
    Scarlett and defendant. On the other hand, Scarlett
    acknowledged she had been a heavy methamphet-
    amine user whose memory had been affected by her
    drug abuse and the passage of time. Her testimony
    and defendant’s affidavit are in substantial conflict
    in several respects . . . .

Based on its finding that “Scarlett did tell Storkel that she was
going to testify unfavorably to Thrasher,” the district court
reaffirmed its denial of Thrasher’s section 2255 petition.

   Thrasher subsequently filed a motion for reconsideration,
which the district court described as seeking reevaluation of
“the evidentiary hearing testimony and briefing” so that the
court could determine “whether Storkel provided ineffective
assistance of counsel when he told the jury in opening state-
ment that Scarlett would testify she placed the firearm in
defendant[’s] briefcase.” The district court held that consider-
ation of this issue was foreclosed by our mandate in Thrasher
I and denied the motion.

   Thrasher first contends that the district court erred by ruling
that Thrasher I foreclosed consideration of his argument,
                   UNITED STATES v. THRASHER                  4419
based on the ATF report, that trial counsel provided ineffec-
tive assistance by telling “the jury in opening statement that
it would hear from [Scarlett].” Second, he argues that the dis-
trict court likewise erred by denying his motion for reconsid-
eration. Finally, Thrasher asserts that Storkel in fact provided
ineffective assistance of counsel by “promising” the jury dur-
ing his opening statement that it would hear from Scarlett
despite having “reason to know that the witness should not be
called.” Significantly, Thrasher fails to challenge the district
court’s determination of the issue we remanded in our limited
mandate: whether Storkel’s mid-trial decision not to call Scar-
lett as a witness constituted ineffective assistance of counsel.

                                II

   [1] We first consider whether the district court had subject
matter jurisdiction over Thrasher’s arguments. The govern-
ment’s brief suggests that the issue of the district court’s juris-
diction implicates longstanding federal court doctrines known
as “the law of the case” and “the rule of mandate.”

    The law of the case doctrine states that the decision
    of an appellate court on a legal issue must be fol-
    lowed in all subsequent proceedings in the same
    case. The doctrine is a judicial invention designed to
    aid in the efficient operation of court affairs. Under
    the doctrine, a court is generally precluded from
    reconsidering an issue previously decided by the
    same court, or a higher court in the identical case.
    For the doctrine to apply, the issue in question must
    have been decided explicitly or by necessary impli-
    cation in the previous disposition.

Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir.
1993) (internal citations, quotations, and punctuation omit-
ted). The rule of mandate doctrine, on the other hand, pro-
vides:
4420              UNITED STATES v. THRASHER
    When a case has been once decided by this court on
    appeal, and remanded to the [district court], what-
    ever was before this court, and disposed of by its
    decree, is considered as finally settled. The [district
    court] is bound by the decree as the law of the case,
    and must carry it into execution according to the
    mandate. That court cannot vary it, or examine it for
    any other purpose than execution; or give any other
    or further relief; or review it, even for apparent error,
    upon any matter decided on appeal; or intermeddle
    with it, further than to settle so much as has been
    remanded. . . . But the [district court] may consider
    and decide any matters left open by the mandate of
    this court . . . .

In re Sanford Fork & Tool Co., 160 U.S. 247, 255-56 (1895).
“Thus, a district court could not refuse to dismiss a case when
the mandate required it, and a district court could not revisit
its already final determinations unless the mandate allowed
it.” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995)
(citations omitted).

   Courts have not been consistent in describing the mandate
doctrine. We have said the doctrine is “similar to, but broader
than, the law of the case doctrine.” Id. By contrast, several of
our sister circuits have described the rule of mandate doctrine
as “nothing more than a specific application of the ‘law of the
case’ doctrine.” Piambino v. Bailey, 757 F.2d 1112, 1120
(11th Cir. 1985); see also Kavorkian v. CSX Transp., Inc., 117
F.3d 953, 958 (6th Cir. 1997); City of Cleveland, Ohio v. Fed.
Power Comm’n, 561 F.2d 344, 348 (D.C. Cir. 1977). There
certainly is a difference between the two doctrines, and they
are not identical. While both doctrines serve an interest in
consistency, finality and efficiency, the mandate rule also
serves an interest in preserving the hierarchical structure of
the court system.

  [2] We have described our mandate as limiting the district
court’s “authority” on remand, which is jurisdiction language.
                   UNITED STATES v. THRASHER                  4421
See United States v. Pimentel, 34 F.3d 799, 800 (9th Cir.
1994). Several of our sister circuits have also considered the
mandate as jurisdictional. See, e.g., Seese v. Volkswagenwerk,
A.G., 679 F.2d 336, 337 (3d Cir. 1982); Tapco Prods. Co. v.
Van Mark Prods. Corp., 466 F.2d 109, 110 (6th Cir. 1972).
Other circuits, however, have reached a different conclusion,
holding that their mandates are not jurisdictional. See, e.g.,
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002);
Tronzo v. Biomet, Inc., 236 F.3d 1342, 1349 (Fed. Cir. 2001);
United States v. Gama-Bastidas, 222 F.3d 779, 784 (10th Cir.
2000); United States v. Bell, 988 F.2d 247, 251 (1st Cir.
1993). The circuits appear to be split four to four on the issue.
We cannot change the position of our court absent en banc
reconsideration.

  [3] It is true that the Supreme Court has called into question
whether the law of the case doctrine is jurisdictional. The
Court has stated that “[t]he law of the case doctrine . . . simply
‘expresses’ common judicial ‘practice’; it does not ‘limit’ the
courts’ power.” Castro v. United States, 540 U.S. 375, 384
(2003), quoting Messenger v. Anderson, 225 U.S. 436, 444
(1912). Castro, however, did not implicate the rule of man-
date doctrine. Therefore, in this circuit, if a district court errs
by violating the rule of mandate, the error is a jurisdictional
one.

                               III

   [4] Our limited remand dealt with Storkel’s mid-trial deci-
sion not to call Scarlett as a witness. The district court held
that this did not constitute ineffective assistance of counsel.
Thrasher does not challenge this determination on appeal, and
we affirm. That should end the appeal, but Thrasher objects
because the district court refused to rule on a different issue:
whether Storkel’s opening statement identifying Scarlett as a
witness constituted ineffective assistance of counsel. We
therefore consider the district court’s determination that our
mandate deprived it of the authority to consider the merits of
4422              UNITED STATES v. THRASHER
Thrasher’s ineffective assistance of trial counsel argument
based on the ATF report. Our review is de novo. Cassett v.
Stewart, 406 F.3d 614, 620 (9th Cir. 2005).

   [5] “[W]e have repeatedly held, in both civil and criminal
cases, that a district court is limited by this court’s remand in
situations where the scope of the remand is clear.” Mendez-
Gutierrez v. Gonzales, 444 F.3d 1168, 1172 (9th Cir. 2006);
see also Twentieth Century Fox Film Corp. v. Entm’t Distrib.,
429 F.3d 869, 883 (9th Cir. 2005) (“There is nothing in our
prior decision that indicates that we issued an open remand.
Rather, in remanding to the district court, our opinion contem-
plates a trial to resolve the only remaining genuine issue of
material fact”). For instance, in Planned Parenthood of
Columbia/Willamette, Inc. v. American Coalition of Life
Activists, a prior en banc decision had “affirmed the district
court’s judgment in all respects but for the constitutionality of
the punitive damages awards.” 422 F.3d 949, 966 (9th Cir.
2005). On remand, the defendant attempted to raise seven
new issues, including intervening decisions of the Supreme
Court. Id. We narrowly construed the scope of the remand,
holding “[o]ur mandate in [the prior decision] was clear. We
finally adjudicated all issues except for, and remanded only
for consideration of, the constitutional implications of the
punitive damages awards. Accordingly, [defendant’s] addi-
tional issues [were] not open for review.” Id. at 967.

   [6] The district court did not err by refusing to consider the
merits of Thrasher’s ineffective assistance of trial counsel
argument based on the ATF report. Thrasher I remanded for
a single purpose: “a hearing to resolve a critical disputed fact:
whether Scarlett told Storkel that she was going to testify
unfavorably to Thrasher.” (Emphasis added.) The plain lan-
guage of the disposition precluded the district court from con-
sidering any other arguments concerning Storkel’s
effectiveness. We therefore affirm Thrasher II as well as the
district court’s denial of Thrasher’s motion for reconsidera-
tion.
                  UNITED STATES v. THRASHER               4423
  AFFIRMED.



BERZON, Circuit Judge, concurring:

   I agree with the panel that the law of the case exceptions
do not apply to the rule of the mandate. See United States v.
Bad Marriage, 439 F.3d 534, 541-42 (9th Cir. 2006) (Berzon,
J., dissenting). I also agree, under compulsion of our prece-
dent, that the rule of mandate is in some sense jurisdictional.
See United States v. Kellington, 217 F.3d 1084, 1093 (9th Cir.
2000) (stating that, in interpreting the mandate, “the ultimate
task is to distinguish matters that have been decided on
appeal, and are therefore beyond the jurisdiction of the lower
court, from matters that have not” (emphasis added)); United
States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994) (per
curium) (describing the mandate as limiting the district
court’s “authority”).

   Although this case does not raise the issue, there are in my
view very limited circumstances, as suggested in Bad Mar-
riage, 439 F.3d at 541-42 (Berzon, J., dissenting), in which
the district court may not be required to follow the directions
we have given in our mandate. This conclusion would not
necessarily be inconsistent with the use of the term “jurisdic-
tion.” See Kontrick v. Ryan, 540 U.S. 443, 454-55 (2004)
(“ ‘Jurisdiction’ . . . is a word of many, too many, mean-
ings.”); see also Eberhart v. United States, 126 S. Ct. 403,
406 (per curiam); United States v. Sadler, No. 06-10234, ___
F.3d ___, 2007 WL 610976, at *2 (9th Cir. Mar. 1, 2007).
