Full Opinion

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS PACIFIC AMUSEMENT, INC., et al., Plailltiffs/Appellees, v. FRANK B. VILLANUEVA, et al., De/ellilall ts/ Appellallts. Supreme Court Appeal No. 03-0033-GA Civil Action No. 02-0378-A ORDER Cite as: Pacific Am1lsement, lue. v. Villanueva III, 2006 MP 8 Aftomey for Defendants-Appellants: Aftomey for Plaintiffs-Appellee: Deborah L. Covington David G. Banes, Esq. Joseph L.G. Taijeron O'Connor Berman Dotts & Banes Assistant Attomeys General Second Floor, Namu Building Office of the Attomey General P.O. Box 501969 2nd Floor, Juan A. Sablan MemOlial Bldg. Saipan, MP 96950 Capitol Hill, Caller Box 10007 Saipan, MP 96950 BEFORE: MIGUEL S. DEMAPAN, Chief Justice; ALEXANDRO C. CASTRO, Associate Justice (dissenting); and JOHN A. :MANGLONA, Associate Justice DEMAPAN, ChiefJustice: �1 Pacific Amusement, Inc. 's Request for a Full Panel Review brings to the attention of this Court an imp0l1ant jurisdictional question. The Clerk of Com1 issued the mandate before the request for a full panel review was made. We may only recall a mandate in very exceptional circumstances. For the reasons discussed in this order, we decline to ' recall the mandate. Therefore, Pacific Amusement, Inc. 's Request for a Full Panel Review is DENIED. I. �2 On August 2, 2005, we issued our Opinion in this case and dismissed the appeal. On August 16, 2005, Appellee Pacific Amusement, Inc. ("Pacific Amusement") filed its Bill of Costs 011 Appeal pursuant to Commonwealth Rule of Appellate Procedure 39(a). Thereafter, on September 1, 2005, Pacific filed an Appellee's Request for Attorney's Fees. On September 6, 2005, the Clerk of Court issued the mandate that the appeal was dismissed for lack of jurisdiction. On September 21, 2005, this Com1 issued an order 2 awarding Pacific Amusement costs, but denying attorney's fees. On September 26, 2005, the Clerk of the Supreme Court issued a Request to Add on to the Mandate. Finally, on September 30, 2005, Pacific Amusement requested a view by the full panel of the order denying attorney's fees. �3 The request for attorney's fees was filed before the mandate issued. 111erefore, this Court properly retained jmi.sdiction over the original request and properly issued the I As discussed i'!fra, a mandate affects the jurisdiction of this Coun to hear any further matters. Therefore, we must decide this question even though a Request to Recall the Mandate has not been filed. 2 A single justice issued the orOO. original order awarding costs but denying attomey's fees. The mandate was issued, however, before the most recent request for the full panel review. This poses a jmisdictional problem for this Court. This problem was not simply created by this Com1. All pal1ies are aware of the mandate and are generally required to either a) request for a stay of the mandate, or b) file the request for full panel review before the mandate is 3 issued. �4 Commonwealth Rule of Appellate Procedme 41 states that the mandate of the court "shall issue after 30 days from the entry of judgment, unless time is sh0l1ened or enlarged by order. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court." TIlliS, a Request for 4 Full Panel Review does not automatically stay the mandate. Instead, the mandate will only be stayed under these circumstances upon request of the parties or upon order of this Com1. II. In detenllilng whether we have jmisdiction in this matter, we first look to the law regarding mandates. If this Com1 has an inherent power to recall a mandate, we next consider the circulllstances under which a mandate may be recalled. Finally, we shall look to the underlying matter to consider whether a recall of the mandate is justified. A. Mandate 1. General Rule-Final Order 3 It would have been most appmpriate in this case to file a Request to Stay the Mandate at the time dIe Request fOJ: Attorney's Fees was filed. 4It should be noted, however, dlat the Request fm Full Pand Review was filed after dIe mandate had already been issued. The proper coru:se of action for the Appellee in dus case would have been to make a Request to Stay the. Mandate at the same time as filing the original Request fm AttoOley's Fees. �6 A mandate "brings the proceedings in a case 011 appeal to a close and removes it from the jurisdiction of the appellate coml, retuming it to the comi below." United States v. Riviera, 844 F.2d 916 (2nd Cir. 1988). The transmittal of the mandate to the lower court revests the lower comi with the jurisdiction over the case. TIlliS, the general mle is that a mandate is a final order. See Veteto v. YOCUfII, 792 So. 2d 1117 (Ala. Civ. App. 2001); Hrabs=uk v. John Lucas Landscaping, 888 P.2d 367 (Colo. App. 1994) (fimction of mandate is to establish finality of court's judgment, to restore jurisdiction in tribunal from which appeal or petition is taken, and to cOlllnlUlicate court's judgment to that tribunal); State ex reI. Fra::.ier & Oxley, I.e. v. CUlllmings, 2003 WL 22387720 (JI. Va. 2003) (the "mandate" of an appellate court is its order fonnally advising the lower comi of its decision and makes the end of appellate jurisdiction and the retulll of the case to the lower tribunal for such proceedings as lllay be appropriate); People v. Agard, 680 N.Y. S.2d 155 (1998) (federal comi of appeals' control over case comes to an end once mandate issues and only regains jurisdiction if it recalls mandate). 2. Recall of a Mandate a. Inherent Authority of a Court �7 Our COlllmonwealth Rules of Appellate Procedure are silent on the recall of a mandate. In such an absence, we nun to the conunon law. In Calderoll v. ThompsolI, 523 U.S. 538, 118 S. Ct. 1489, 140 LEd.2d 728 (1998), the United States Supreme Com1 has recently held that "[c]omis of appeals have inherent power to recall their mandates, subject to review for an abuse of discretion, but in light of the profound interests in repose attaching to the mandate of a conn of appeals, the power can be exercised only in extraordinary circumstances, and is one of last resOli, to be held in reserve against grave, unforeseen contingencies. " The idea that a recall of the mandate is an inherent authority of a court was also expressed, albeit little analysis, in Hawa;; HOl/sing Authority v. Midkiff, 463 U.S. 1323, 1324, 104 S. Ct. 7, 8-9, 77 LEd.2d 1426 (Renquist, J., in chambers) (1983). The federal circuit courts have also found that absent statutory authority, the power to recall a mandate is inherent. See Greater Boston Television Corp. v. F.CC, 463 F.2d 268 (Dc. CiT. 1972). h. Need to Show Special Reason �8 While there is a doctrine for recall of a mandate for "good cause" and the need to "prevent injustice,"S the "power to recall mandates should be exercised sparingly and is not be availed of freely as a basis for granting rehearings out of time for the purpose of changing decisions even assuming the COUIt becomes doubtful of tlIe wisdom of tlIe decision that has been entered and become final. " Estate ojIverson v. COllllll'r, 257 F.2d 408, 409 (8th CiT. 1958) (quoted by Greater BostOIl, 463 F.2d at 277-78). The power of a court to recall a mandate must be "exercised sparingly." Sargent v. Columbia Forest Products, Inc., 75 F.2d 86, 89. (2nd Cir. 1996) (quoting Greater Boston Television Cmp. v. FCC, 463 F.2d 268, 277, (ce11. denied sub. nom). It should also be reserved for "exceptional circumstances." Fine v. BelleJollfe Underwriters Ins. Co., 758 F.2d 50 (2nd Cir. 1985) (celt denied). As tlIe com1 explained in Sargellf, "the reason for parsimony in the exercise of our power to recall a mandate is the need to preselve fmality in judicial proceedings." Sargent, supra, at 89. �9 In Boston alld DMaine Cmp v. TOWII ofHamptoll, 7 F.3d 281 (1st Cir. 1993), tlIe First Circuit Court of Appeals fOlmd tlIat "[e]ven if Com1 of Appeal's authority to recall 5 A more detailed discussion of those tams is contained infra. mandate still exists, it should be exercised sparingly and only upon showing of exceptional circmnstances, and resort to recall power should not be used simply as a device for grantillg late rehearing." (emphasis added) The D C Circuit finds that "a mandate once issued will not be recalled by an appellate court except by order of the court for good cause shown; the "good cause requisite for recall of mandate is the showing of need to avoid injustice." Greater Bostoll Television Corp. v. F.c.c., 463 F.2d 268, 789 (Dc. Cir. 1972). In this case, the court further stated that the "power of an appellate com1 to recall its mandate should be exercised sparingly to be availed of freely as the basis for granting rehearings out of time for pUlpose of changing decision even assuming court becomes doubtful of the wisdom of its decision." (emphasis added, citation omitted) The cOUll also found that "in detennining whether to recall its mandate and appellate cOUll should adhere to the principle that there must be a special reason, "exceptional circumstances" in order to ovelTide the strong policy of repose, that there be an end to litigation." ld. The court also ruled that an "appellate com1 may revise its mandate to prevent injustice when the judgment contains an instruction on point or in an application not deliberately intended by the court that would operate, unless changed to require the district court to issue an unjust order." �IO The Ninth Circuit case of Zipfel v. Halliburton Co., 861 F.2d 565 (9th Cir. 1988), is interesting in that the cOUl1 did in fact recall the mandate. The cOUll explained that the authority to recall a mandate may be exercised for "good cause" or to "prevent injustice." Aerojet-Gelleral; Verrilli v. City of Concord, 557 F.2d 664, 665 (9th Cir. 1977). This power, however, should be exercised only in exceptional circmnstances. Johnson v. Bechtel Associates Professional C01p., 801 F.2d 412, 416 (D.c. Cir. 1986). The com1 also identifies that "whether the power is exercised at all falls within the discretion of the court, but such discretion should be employed to recall a mandate only when good cause or unusual circumstances exists sufficient to justify modification or recall of a prior judgment." American Iron and Steel Institute v. EPA, 560 F.2d 589, 594-95 (3rd Cir. 1997) (cer!. denied). �ll The United States Supreme Com1 in Calderon, supra, citing Rule of Civ. Proc. 60(a) and Rule of Appellate Procedure 41 the com1 stated Where Court of Appeals recalls its mandate to revisit the merits of its earlier decision denying habeas relief, in case not involving clerical elTor in judgment, fraud on the com1, or stay pending disposition of suggestion for rehearing en banc, State's interests in finality are all but paramOlUlt, without regard to whether the COUl1 of Appeals predicates the recall on a procedural misunderstanding or some other ilTegularity occUlTing prior to its decision; absent strong showing of acmal innocence, State's interests in actual finality outweigh the prisoner's interest in obtaining yet another opporhmity for review. 523 U.s. 538, 557, llS S. Ct. 1489, 1502, 140 L.Ed.2d 728. TIlerefore, tilere are limited circumstances in which a cOUl1 may exercise the power to recall a mandate. TIlese circumstances are when there was a clerical elTor, fraud on the court, avoidance of differences in results to cases pending at the same time, or a need to revise lmintended instmction to trial cOUl1 that produces lmjust result, or other grounds of injustice. 1d. See also, Greater Boston, 463 F.2d 278-80. c. Particular Grounds for Recalling Mandate i. Correction ofa Clerical Error �12 The clearest reason for recall or revision of an appellate mandate is to cOlTect clerical mistakes. Greater Boston, 462 F.2d at 278. TIus power is expressly confinned 6 for district comls by Commonwealth Rule of Civil Procedure 60. Thus, it is also an inherent power of this COUll. See, e.g. Kinnear-Weed C01p. v. Humble Oil, 296 F.2d 215 (5th Cir. 1961). See a/so, Calderoll, supra, and Greater Boston, supra. ii. Fraud 011 the Court, or Other Misconduct Afecting Integrity of Judicial Process The United States Supreme Coml has ruled that a COUll can always set aside a decision that was obtained by far ud. Ha=e/-Atlas Glass Co. v. Hart-Empire Co., 322 U.S. 238, 64 S. Ct. 997, 88 L.Ed 1250 (1944). In Hazel-Atlas, the Com1 stated that the "deep- rooted policy in favor of the repose of judgments" and the interest in finality, must yield to the oveniding interest of "con-ecting injustices which, in certain instances, are deemed sufficiently gross to demand a rigid adherence to the term lule" where enforcement of the judgment is "manifestly unconscionable." 322 U.S. at 244-45, 64 S.Ct. at 1000, citing Pickford v. Talboll, 225 U.S. 651, 657, 32 S. Ct. 687, 56 L.Ed. 1240. �14 The idea a cOUll may set aside a decision obtained by fraud allows a court to recall a mandate under such circumstances. In, Cord v. Smith, 370 F.2d 418 (1966), the Ninth Circuit found that it may set aside at any time a mandate that was procured by effecting a fraud on the coml. Id at 423. The "spirit of the 'fraud on the court' rule is applicable whenever the integrity of the judicial process or functioning has been undercut---cellaillly in any instance of misconduct by a pally." Greater Boston, 462 F.2d at 279. iii. Avoidance of Differences in Results to Cases Pending at the Same Time alld Uniformity of the Law 6Rule 6O(a) states: "Clerical mistakes in judgments, orden or other pans of dIe record and errors therein arising from oversight or omission Illly be corrected by the court at any time of its own initiative or on dIe motion of any party.... " �15 In most instances where appellate courts have found special reason for disnrrbing fmality in the interest of justice, the underlying consideration has been the interest of avoiding differences of result for cases pending at the same time. In United States v. Ohio Power Co, 353 U.S. 98, 99, 77 S.C!. 652, 1 L. Ed.2d 683 (1957), the COUlt explained that the interest of "unifollnity in the application of the principles announced in those two companion cases," and stated "that the interest in finality of litigation must yield where the interest of justice would make unfair the strict application of our mles." In Stili Oil Co. v. B1f1ford, 130 F.2d 10, 13 (5th Cir 1942), the comt recalled a mandate entered earlier at the same time to avoid any injustice due to an intra-circuit conflict. �16 Com1s are willing to recall a mandate when a higher court changes the state of the law. For instance, in Verrilli v. City of Concord, 557 F.2d 664 (9th Cir. 1977), the Com1 of Appeals remanded an appeal to the district com1 for determination of facts bearing on request for attomey fees. They did so in light of a United States Supreme Com1 decision that held that private attomey general theory for award of fees could not be justified. The Ninth Circuit later felt that its own mling was erToneous in view of the change of law and also was an unintended unjust result. Therefore, they recalled the mandate. One should note that the unintended and elToneous ruling was so deemed after the United States Supreme Com1 made a decision on the state of the law. iv. Need to revise IInintended instruction to trial court that produces Ifnjust result �17 Another principle upon which a Court may rely to recall a mandate is the need for a revision to "prevent injustice [that] may come where an appellate judgment contains an instruction---Qn a point or in application that was not deliberately intended by the appellate COUll-that would operate unless changed, to require the district cOUll to issue an unjust order." Greater Boston, 462 F.2d at 279. The need for this doctrine is intelTeiated with the "mandate" mle, which prohibits the district court from depalling from the appellate instruction without special leave. Briggs v. Penl/sylvania R. Co, 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948). In this interest of justice, this Court would not with to bind the district court to order an unjust order, especially if such was the result of an lUuutentiollal directive of this court. v. Otlter grounds ofinjustice �18 This Court may recall a mandate for other grounds of injustice in order to restrain enforcement of a judgment to avoid an unconscionable injustice. While the bounds of this injustice lllay not be clearly defined, we may look to the common law to discern how other COUlts have treated "exceptional circumstances" which may cause an unconscionable result if enforced. In considering other grOlUlds of injustice, this COUlt must continuously be mindful that the "sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies." Calderon, 523 U.S. 538, 550, 118 S. Ct. 1489, 1498, 140 L.Ed.2d 728. B. Underlying case 1. The September Order Denying Attorney's Fees (Rule 38) �19 Upon flUther review, the argument of the September Order that a denial of attomey's fees would not be granted simply because the merits of the case were not reached does not clearly examine the llllpOitant issues raised by the palties. Indeed, the analysis of the COUlt did not explain what " frivolous" means and why this appeal did not fit within that meanllig. TIlliS, a fresh look at the issues presented is wan-anted. 2. "Frivolousness" �20 In order for this COlU1 to consider awarding attomey's fees lUlder Rules 38 (a) or (b), it must first conclude that the appeal is frivolous. Rule 38 (a) provides that "[i]f this COUlt determines that an appeal is frivolous, it Illay award just damages and single or double costs to the appellee, including reasonable attomey's fees." A frivolous appeal is one "in which no justiciable question has been presented and the appeal is readily recognizable as devoid of merit in that there is little prospect it can ever succeed." Commonwealth v. Kawai, 1 N.M.I. 66, 72 11.4 (1992). In order for this Court to award sanctions under this provision, it must be clear that there is absolutely no legal or factual basis upon which appellant relied. In Kawai, this Court ordered sanctions because it was "clear from the record and briefs submitted that counsel had no legal or factual basis for appeal." Commonwealth v. Borja, 3 N.M.I. at 72. TIus COUI1 has also required a showing of bad faith in order to award sanctions lUlder this section. See Rosario v. Quan, 3 N.M.!. 269. �21 Looking through the procedural histOlY of this case, and the state of the law at the time the appeal was brought before the CouI1, it does not seem that it was "readily recognizable as devoid of merit." Pacific Amusement first made a Motion to Dismiss. Rather than immediately grant that motion, the CouI1 instmcted both paI1ies to brief the matter. The palties then appeared at oral arguments, presenting in detail not only the question of jurisdiction, but also issues of the appeal. TIlis Com1 ultimately disnussed the case for lack of jmi.sdiction. �22 In its Opinion, this Com1 disagreed with Pacific Amusement's argument that the issue of liability was not conclusively detennined because no evidentiary hearing was held to detennine the extent of the public benefit confened by the taxpayer suit case of action. Pacific Amllsement v. Villanueva, 2005 MP 11, �1O. TIus Court also held in that Opinion that "an order which establishes liability without fixing the 31110mll of recovery Illay be final and immediately appealable only if the determination of damages will be "mechanical and uncontroversiaL" Id at '11 1. While this Com1 found that "it is conceivable a hearing might raise issues, the detenllination of which might alter any fin al issues to be appealed," the GOVel1lIllent had a colorable question of law upon which to rely for this appeal. �23 Earlier CNMI cases do not provide much analysis OIl what "bad faith" means. Instead, there are examples of egregious behavior which wan-anted sanctions. Most recently, this Com1 awarded sanctions in He v. COllllllomvealrh, 2003 MP 3. In that case, the imposition of sanctions was based on several factors, including the willful pursuit of the appeals, "including a delayed briefing schedule, despite knowledge that the underlying orders are invalid." The defendants fm1her compounded "their misconduct by failing to explain how the standards they present differ from those employed by trial courts, conflating motions to dismiss with motions for smllmalY judgment, making large conclusory argmllents, and consistently taking sources out of context or othelwise using them inappropriately." Id at '1l. 19. In footnote 12, this Com1 in He even gives the example that the defendants completely misstated the law in their brief. Footnote 13 explains how deeply flawed and poor the arguments were for a number of reasons, stating "any number of these mistakes might be forgiven were it not for the fact that Defendants' analysis is so deeply flawed." �24 Looking over the He case, it is clear that sanctions should have been imposed by this Court-willful and bad faith prosecution, misstating the law to this Comt, willfully conflating dismissals with smllin31Y judgments, making large conclusOlY arglUuents without supp0l1 from any authority, using sources inappropriately. All of these things combined are surely sallctionable. To contrast, there is only one "charge" against the Govemment in tins case-IUltimeliness. This Comt did not remark in its opinion that it suspected the GovellllIlent of bad faith. �25 In He, the comt sanctioned the GOVel1lIllent by ordering it to pay the Court $250. In the face of all of that, cOlTectiy finding it was a frivolous appeal, the ConI1 didn't even go as far as awarding a sizable stun of attomey's fees. In this case, with much less evidence of sanctionable behavior, Pacific Amusement is now demanding this Com1 award them with an award exponentially higher than this Court has ever awarded before. Indeed, Pacific Amusement is requesting an amount of $40,000 for fees associated with this appeal.1 The Govemment's outrageous behavior in He should be clearly distinguishable from the case at bar. Rather than a multihlde of elTors and malicious misrepresentations made in that case, the only argument in this case is that the Govemment should be sanctioned because it filed its appeal after disposition but before the costs were detennined and was thus untimely. This Court noted in its Opinion that there are 7 Declru:ation of Paul Trombetta, p.3. During oral arguments, the Court requested Pacific Amusement to submit its fees in litigating this matteI:, both in whole and as to the a�al. lhis Court also requested an itemized accounting of dIe f�s. On July 20, 2004, this Court dICll issued an additional order further requesting the itemized accounting of costs and fees associated with this litigation. In Appdlee's R£.rpofIJt to Court Orrkr of August 9, 2004, the total f�s of the litigation were over $140,000. Id (last p� of Exhibit A). simatious in which orders are final and appealable, even if the attomey's fees have not been set. 3. Sanctions are Discrefiollmy �27 Pacific Amusement argues that because they asked for a Motion to Dismiss and because it was eventually granted, tins Court must grant them attomey's fees. In so arguing, Pacific Amusement ignores that fact that ultimately it is within the discretion of this Court to detennine whether or not such a sanction is walTanted. Pacific Amusement continuously uses language that would lead this Comt to believe that it should receive an award of attomey's fees as a matter of right. This language is misleading to the Com1 and elTOlleous. C. Discussion �28 As pointed out earlier, this Com1 is faced with a procedmal problem. The mandate was issued before the Request for the Full Panel Review. This problem was fill1her compOllllded by the fact that Pacific Amusement did not request to stay the mandate.8 As a mandate is a jurisdictional issue, we must first detelluine whether or not we would like to exercise our inherent authority to recall the mandate sua spollfe. �29 It is clear that the finality of the mandate should only be dishlrbed IUlder exceptional circumstances or where a grave nliscaniage of justice would occur. We have also outlined traditional reasons which are so "special" as to give rise to a recall. We may easily disregard most of those categories, as they are inapplicable in this case. Notlling before us suggest tlIat there has been a clerical enor, fraud upon the COUll, a 8 It furthec complicates the pcesent cequest that no cequest has been made to cecall the mandate. change in the law, or an unintended instl1lction which would mandate the district coull to issue an unjust order. Thus, we are left to consider whether this situation falls within the general category of "other grOlmds of injustice." �30 Wllile the grounds of injustice are open to interpretation, it is helpful to consider what circllllstances were not enough to wanant a recall of a mandate. In Calderoll, supra, the u.s. Supreme Court reversed the Ninth Circuit's recall of a mandate, despite several circumstances which were llllUsual. In that case, the COlll1 of Appeals (panel) originally denied Thompson's motion to recall the mandate. Two days later, however, the full court voted to consider en banc whether to recall the earlier mandate "to consider whether the panel decision of our cOlll1 would result in a fundamental miscalTiage of 9 justice." Calderon v. Thompson, 120 F.3d 1042, 1043. The en banc majority asserted extraordinary circumstances justified its order recalling the mandate because, "but for procedural misunderstandings by some judges of this COlll1, an en banc call would have been made and voted upon at the ordinary time." Id. at 1048. It appears that the procedural misunderstandings involved an off-panel judge who requested an oppolUmity to make a belated call for a vote to rehear the case en banco The judge stated that the panel's decision had been "circulated shortly before a law clerk transition" in the judge's chambers, and that "the old and new law clerks assigned to the case failed to communicate." Calderoll, 523 U.S. 538, 551, 118 S.Ct. 1489, 1499, 140 L.Ed.2d 728. 9 In Caldtron, Thompson was convicted of ra� and murder and was given dIe death penalty. TIle Governor of California hdd a hearing on whether to grant clemency to Thompson. After hearing arguments and reviewing the materials submitted on his behalf, dIe Govelllor agreed with the trial court judge that "it would be an absolute tragedy and travesty of justice to cven seriously consider clemency in this casc." The Califomia SuprCll1e Court also [ejected all pleas in this caSCo 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728. To be sure, most of the complicated procedural history of this case, i.ncluding the California courts, federal courts, and the governor are outside the scope of the question before us. Another judge seconded the motion, because he did not see the original motion and asked, "Did I miss it?" ld. In light of these events, the u.s. Supreme Court held that Measured even by standards of general application, the Com1 of Appeals' decision to recall the mandate rests on the most doubtful of grounds. A mishandled law clerk transition in one judge's chambers, and the failure of another judge to notice the action proposed by the original panel, constitute the slightest of bases for setting aside the "deep rooted policy in favor of the repose of judgments." Ha=el-Atlas Glass Co., supra at 244, 64 S.Ct., at 1000. ld. Thus, the Court found that even these usual circumstances were not enough- in fact, the "slightest of bases"-to justify a recall of a mandate. �31 Even assuming we have become doubtful of the wisdom of our September Order, that doubt is still not enough to justify a recall of the mandate. See Greater Boslon Telev;s;oll COfp. v. F.CC, 463 F.2d 268 (DC. Cir. 1972)(the "power of an appellate court to recall its mandate should be exercised sparingly to be availed of freely as the basis for granting rehearings out of time for purpose of changing decision even asslll//;ng courl becomes doubtful o/Ihe w;sdolll o/Us deds;oll). In this case, however, we do not doubt the wisdom of the decision. While the analysis of the September Order could have been expanded, the behavior of the Govemment in this case does not compare to the behavior tltis Court has previously found sanctionable. The argmnent by Pacific Amusement seems to be-we won the appeal, therefore tltis Court must award attomey's fees. Pacific Amusement argues that the appeal was frivolous, because the Goverllinent appealed the issuance of a "final order." WItile this Com1 ultimately decided that indeed the appeal was untimely, the Court did not adopt the arguments of Pacific Amusement. The Coml, in fact, disagreed with the reasoning relied upon by Pacific Amusement. On the other hand, this Coml cOlTectiy acknowledged that there are instances in which an appeal may be brought before attomey's fees are set. In doing so, the Coml gave credence to the argmnents relied upon by the Govemment (even if they found that the Govenunent was not within the meaning of that law). Therefore, the end result of the September Order was COlTect and no recall of the mandate is justified. �32 It should further be noted that we are faced with a decision to recall the mandate in order to accept a Request for Full Panel Review. In Boston and DMaine Corp v. Town of Hampton, 7 F.3d 281 (Ist Cir. 1993), the First Circuit Court of Appeals found that "[e]ven if Coml of Appeal's authority to recall mandate still exists, it should be exercised sparingly and only upon showing of exceptional circumstances, and resOli to recall power should 1I0t be lIsed simply as a device for granting late reheari1lg." (emphasis added). The u.S. Supreme Court has also adopted this view, as expressed in Calderon, supra. Following this 11l1e, we decline to recall the mandate simply as a device to grant the Full Panel Review. III. �33 For the foregoing reasons, we decline to recall the mandate and, accordingly, Pacific Amusement, Inc.'s request for a full panel review is DENIED. SO ORDERED this 5th day of April, 2006. 151 151 MIGUEL S. DEMAPAN JOHN A. MANGLONA Chief Justice Associate Justice Justice CASTRO, Dissenting �34 Although I agree with the conclusion the majority reaches, I must respectfully dissent with the reasons set forth in the opinion. Therefore, for the following reasons, I respectfully dissent. MANDATE �35 Recalling a mandate is an extraordinary remedy and we will exercIse our authority to do so only in exceptional circumstances, such as when it is necessary in order to prevent injustice. Zipfel v. Halliburton Co., 861 F.2d 565, 567-68 (9th Cir.1988). We have the power to recall the mandate of a final decision of OUf court, and to do so sua sponte. See Malik, 65 F.3d at 149. Additionally, courts have long recognized the power to recall the mandate as a means of protecting the integrity of their processes and decisions. Perkins v. Standard Oil Co., 487 F.2d 672, 674 (9th Cir.1973). The decision whether to recall the mandate "is entirely d iscretionary with [the] court." Feldman v. Henman, SI5 F.2d 131S, 1322 (9th Cir.19S7). Because this Court's September 2 jSl Order (hereinafter referred to as "Order Denying Fees") was flawed, I believe it is in the interest of the Court to recall the mandate to protect the integrity of our processes and decisions. ATTORNEYS' FEES �36 When the Court dismissed the Government's appeal, we did so on the grounds that the appeal was untimely and did not fall within any exceptions to the Finality Rule. Specifically, we stated that the Court lacked jurisdiction because there was no issue of national importance involved (Gillespie Doctrine) and that: ". . the September 3, 2003 Order did not involve any right whose legal and practical value would be lost forever without an immediate appeal." Subsequently, the Court denied Pacific's request for fees. �37 The Order Denying Fees stated: "[i]n [its published opinion on the matter, the Court] made no conclusions about the legal and factual arguments presented to [it] by the Government." Pacific Amusement, iIlC., v. Villanueva, 2005 MP 14, '1 7. This is a reference to the fact that the Government's appeal was dismissed for lack of jurisdiction and that the Court did not reach the merits of the case. See id. This statement, however, invited the response from Pacific indicating that they wanted an award for attorneys' fees specifically because of the untimely nature of the appeal. I think it is apparent that Pacific is correct on this point because the Order Denying Fees too narrowly constricted the tenns "merit" and "frivolous," while it did not address the issues raised by the parties. As it pertains to the attorneys' fees, all parties were arguing about the procedural timeliness of the appeal, not the actual substantive merits. For me, the question turns on whether the Government had sufficient legal reason to believe their appeal could be made at the time it was made. We have previously, under Rule 39(a}, sanctioned parties who brought untimely appeals. See, e.g., He v. Commollwealth, 2003 MP 3 (order dismissing appeal awarding costs and imposing sanctions). �38 The trial court's Decision and Order dated September 3, 2003 ("September Order") declared Pacific a "person who prevails" under NMI CONST. ART. X § 9. This ruling entitled Pacific to costs and fees. The Government had a choice between paying an indetenninate amount of fees (Pacific had not submitted their fees at the time) or demanding a hearing to contest them. The Government demanded a hearing, but then filed its appeal before the trial court fixed the fee amount. Since the September Order was still under advisement,! I don't think the Order could reasonably be considered final. ! "However, because the ultimate decision of whether or and how much reimbursement shall be due cannot be answered based on the facts currently in evidence, the Court must continue to keep Pacific Amusement's motion for attorney fees [sic] and costs UNDER ADVISEMENT." Excerpts of Record at 59 (emphasis in original). It is clear that the Government filed an appeal from a nonfinal order, and then attempted to use exceptions to justify its decision. See Appellant's Opposition to Motion to Dismiss. in the instant case, the Governmen