                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 2 1999
                              TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk
 ROBERT FURR, LESLIE WOOLSEY,
 BERNARD OZINGA and JACK L.
 DOAN,
                                                Nos. 97-6379, 97-6386,
          Plaintiffs-Appellants,                98-6035, 98-6036

 v.                                             D.C. No. CIV-93-939-R, CIV-
                                                93-1210-R
 SEAGATE TECHNOLOGY, INC.,                      (Western District of Oklahoma)

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before TACHA , BARRETT , and HENRY , Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

                                   I. BACKGROUND

      *
             This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Years ago this lawsuit was initiated as two separate cases,      1
                                                                           brought by

Seagate employees laid off in a reduction in force, asserting federal and pendant

state employment discrimination claims. The jury returned verdicts for the

plaintiffs in each case, but on appeal this court ruled as a matter of law that the

defendant, Seagate, prevailed. The case was remanded to the district court, for

entry of judgment in favor of Seagate.     Doan v. Seagate Technology Inc.        , 82 F.3d

974, 979 (10th Cir. 1996). The plaintiffs then filed a “Petition for Rehearing with

Suggestion of Consideration En Banc and Alternative Rule 50(d) Motion for New

Trial.” This court entered an order denying the petition for rehearing and the

suggestion for rehearing en banc. The plaintiffs filed a motion for clarification to

get an express ruling on their request for a new trial. The court filed a subsequent

order stating: “The orders denying rehearing       denied all requested relief   .” See

Order filed Aug. 12, 1996, Appee. Supp. App. at 68 (emphasis added).

      Next, plaintiffs filed in the district court a motion for a new trial, and a

Rule 60(b) motion for relief from the adverse final judgment.         See Fed. R. Civ. P.

60(b). The ground for the Rule 60(b) motion was an unpublished Oklahoma

Court of Appeals case,   Fixico v. United Supermarkets of Oklahoma, Inc.          Docket

No. 87,918 (Okla. App. 1996), of no precedential value.         See Rule 1.200(b)(1) &



      1
        The cases remained separate, but followed nearly identical procedural
paths until they were consolidated for this appeal.

                                               2
(5), Oklahoma Supreme Court Rules, Okla. Stat. tit. 12, ch. 15, App. 1 (Supp.

1999). According to the plaintiffs, the     Fixico case called into question the

retroactivity of List v. Anchor Paint Mfg. Co. , 910 P.2d 1011 (Okla. 1996), a case

which the plaintiffs had conceded on their initial appeal, and which this court had

ruled, disallowed their state law claims.      See Doan , 82 F.3d at 975 n.1; Furr v.

Seagate Technology, Inc. , 82 F.3d 980, 982 n.1 (10th Cir. 1996). The plaintiffs

sought to have their state claims reinstated for a new trial to the extent that    Fixico

limited List ’s retroactivity. The district court denied the motions.



                              II. APPELLATE POSTURE

       Now, the plaintiffs appeal the decision of the district court denying the

Rule 60 motions. But the plaintiffs have already lost their case as a matter of law

on appeal. They have filed a motion for rehearing or retrial, and even a second

motion to clarify the appellate order. They have submitted these motions to the

district court – which is bound by this court’s prior mandate to enter judgment

against the plaintiffs,   see Ute Indian Tribe v. Utah , 114 F.3d 1513, 1520 (10th

Cir. 1997) (“the ‘mandate rule,’ provides that a district court must comply strictly

with the mandate rendered by the reviewing court.”) (quotations omitted),          cert.

denied , 118 S.Ct. 1034 (1998). The plaintiffs sought to overcome their impending

loss. The district court correctly and clearly denied the motions. We affirm for


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substantially the same reasons advanced by the district court.



                                    III. DISCUSSION

       The issue of the retroactivity of   List has been litigated to a final judgment

in this case. The law of the case doctrine provides, “once a court decides an

issue, the same issue may not be relitigated in subsequent proceedings in the same

case.” Ute Indian Tribe , 114 F.3d at 1520. On their initial appeal, plaintiffs

conceded List precluded their state claims, and this court reversed judgment on

those claims.

       The law of the case doctrine is not, however, absolute. Rule 60(b)(6) of the

Federal Rules of Civil Procedure permits a court to relieve a party from final

judgment as justice demands, but such relief is limited to “extraordinary

situations.” See Colorado Interstate Gas Co. v. Natural Gas Pipeline Co.        , 962

F.2d 1528, 1533 (10th Cir. 1992). Furthermore, while an intervening change in

controlling law can provide the basis of an exception to the mandate rule, “[such]

exception does not apply where, as here, the case in which the erroneous ruling

occurred is no longer sub judice – that is, where the case has become final.”       Ute

Indian Tribe , 114 F.3d at 1521. This matter is not sub judice – this court

remanded the case to the district court to enter judgment in accordance with the

mandate, and the district court may not apply a later change in law on remand.


                                             4
       That said, this court retains the power to modify a mandate “to prevent an

injustice, or to preserve the integrity of the judicial process.”     Id. at 1522

(quotation omitted). Nonetheless, that power is reserved for cases presenting

extraordinary circumstances.       See id. Not only are such extraordinary

circumstances lacking in this case, there is nothing in the instant appeal that

would cause us to reconsider the previously-litigated         List issue. As a matter of

equity, the law as to the retroactive application of new case law is not itself new.

See e.g., Chevron Oil Co. v. Huson , 404 U.S. 97, 106-07 (1971). In the initial

appeal plaintiffs could easily have presented an argument that         List should not be

applied retroactively and thus their state claims should be preserved. The

plaintiffs chose not to do so, and instead conceded        List barred their state claims.

Furthermore, as noted earlier,     Fixico is a case of less significance than the

plaintiffs claim. As an unpublished Oklahoma Court of Appeals decision, it has

no precedential value.     Although the Fixico court refused to apply List

retroactively, the decision is unpublished and thus makes no change in the law.

       We accordingly AFFIRM the district court order denying the motions the

plaintiffs appeal. Having reached the merits of the Rule 60 motion and affirmed,




                                               5
rather than dismissing, we also DENY Seagate’s motion for damages and double

costs.



                                          Entered for the Court



                                          Robert H. Henry
                                          Cirucit Judge




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