Rather, the rule permits a reconsideration only when “dispositve factual matters or controlling decisisions of law” were presented to the court but were overlooked. See Resorts Int’l v. Great Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992); Khair v. Campbell Soup Co., 893 F. Supp. 316, 337 (D.N.J. 1995).

Under Rule 51, we “may consider a plain error in the instructions that has not been preserved . . . if the error affects substantial rights.” Fed.R.Civ.P. 51(d)(2). Harvey v. Plains Tp. Police Dept 635 F.3d 606 (3d Cir. 2011) If a forfeited error is “plain” and “affect[s] substantial rights,” a Court of Appeals “has the authority to order correction U.S. v. Stevens 223 F.3d 239 (3d Cir. 2000)

In Goodson, the Court of Appeals consulted the “whole record” to determine if the defendant’s substantial rights were affected. U.S. v. Goodson 544 F.3d 529 (3d Cir. 2008)

Vacating a later order that violated the law of the case doctrine, noting that “nothing in the text of 28 U.S.C. § 1407, the Multidistrict litigation transfer statute, [] authorizes a transferee judge to vacate or modify an order of a transferor judge.”  Pharmacy Benefit v. Caremarkspcs, Inc. 582 F.3d 432 (3d Cir. 2009)

A void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally” – The law is well-settled that a void order or judgment is void even before reversal. Vallely v Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920) 

Orders or “[j]udgments entered contrary to due process are void.” Neylan v. Vorwald, 121 Wis.2d 481, 488, 360 N.W.2d 537, 540 (Ct. App. 1984) (citations omitted). Darden v. Wainwright, 477 U.S. 168, 181-82 (1986)  (improper argument and manipulation or misstatement of evidence violates Due Process).  Cf. Mesarosh v. United States, 352 U.S. 1, 14 (1956)

As the Supreme Court has stated, “In and of themselves [judicial rulings] cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal.” Liteky, 510 U.S. at 555.

In re Kayati Case No. 15-24280 (JNP) (Bankr. D.N.J. Feb. 5, 2018) A court has the inherent equitable power to correct its own mistakes. See, e.g., Allied Materials Corp. v. Superior Prods. Co., 620 F.2d 224, 226 (10th Cir.1980); Jusino v. Zayas, 875 F.2d 986, 989 n. 3 (1st Cir.1989).”

Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable but simply void, and this even prior to reversal.” Old Wayne Mut. I. Assoc. v McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907);

Williamson v Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850); Rose v Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808). Noting that the party seeking to modify a protective order “must come forward with a reason to modify the order” Pansy v. Borough of Stroudsburg 23 F.3d 772 (3d Cir. 1994)

Despite these considerations, it would appear that an appellate court does have the power to recall a mandate in appropriate instances. Insofar as we have been able to ascertain, this Court has not  spoken on the issue. But many of our sister circuits have accepted, without question, the proposition that courts of appeals may vacate their judgments in certain limited circumstances. Apparently, no court now takes the position that a federal tribunal lacks authority to recall its own mandate. Root Refining Co. v. Universal Oil Products Co., 147 F.2d 259, 260 n.2 (3d Cir. 1945), this Court stated: “if no corruption [in procuring judgments] had been practiced this court would not have possessed the power to reopen its judgments or to recall its mandates after the end of the term.”

More importantly, while it was once recognized that expiration of a court’s term precluded any modification of an adjudication decided therein, see, e. g., Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 797 (1882), the “term” concept no longer retains much significance, especially since the enactment of 28 U.S.C. § 452. See Greater Boston Television Corp. v. F.C.C., 149 U.S.App.D.C. 322, 463 F.2d 268, 276 (1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972).

Finally, it may be that the term restriction was somewhat less rigid than the Root Court believed. See, e. g., Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238, 244-45, 64 S.Ct. 997, 88 L.Ed. 1250 (1944). See, e. g., Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir. 1976); Perkins v. Standard Oil Co. of California, 487 F.2d 672 (9th Cir. 1973); Powers v. Bethlehem Steel Corp., 483 F.2d 963 (1st Cir. 1973); Aerojet-General Corp. v. American Arbitration Ass’n, 478 F.2d 248 (9th Cir. 1973); Greater Boston Television Corp. v. F.C.C., 149 U.S.App.D.C. 322, 463 F.2d 268 (1971); Gradsky v. United States, 376 F.2d 993 (5th Cir. 1967), cert. denied, Grene v. United States, 389 U.S. 908, 88 S.Ct. 224, 19 L.Ed.2d 224 (1967); Legate v. Maloney, 348 F.2d 164 (1st Cir. 1965); Meredith v. Fair, 306 F.2d 374 (5th Cir. 1962); Yanow v. Weyerhaeuser Steamship Co., 274 F.2d 274 (9th Cir. 1958); Hines v. Royal Indemnity Co., 253 F.2d 111 (6th Cir. 1958).

The Supreme Court also has recognized the power of federal courts, both trial and appellate, to alter or set aside judgments after their final entry. See, e. g., Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238, 244, 64 S.Ct. 997, 1000, 88 L.Ed. 1250 (1944), in which the Court stated: [I]n most instances society is best served by putting an end to litigation after a case has been tried and judgment entered. This has not meant, however, that a judgment finally entered has ever been regarded as completely immune from impeachment . . . [U]nder certain circumstances . . . relief will be granted against judgments regardless of the term of their entry. One court of appeals has discovered a “foundation in statute” for judicial authority to recall a mandate.

It points to 28 U.S.C. § 2106, which expressly authorizes an appellate court to affirm, modify or vacate any judgment as that court may deem to be “just under the circumstances.” While, on its face, § 2106 seems to apply primarily to review by an appellate tribunal of a judgment or order of an inferior court, arguably the statute sanctions reassessment by a court of appeals of its own decisions as well. Greater Boston Television Corporation v. FCC, 463 F.2d 268 (D.C. Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972).

Another court of appeals has suggested that Fed.R.Civ.P. 60(b) may constitute a basis for granting a recall motion, since that procedural provision permits a court “on motion and upon such terms as are just. . . . [to] relieve a party or his legal representative from a final judgment . . . [for] any . . . reason justifying relief from the operation of the judgment.” Yanow v. Weyerhaeuser Steamship Company, 274 F.2d 274 (9th Cir. 1958).

Nonetheless, there may be some question whether Rule 60(b) provides authority for recall of a mandate in the Third Circuit. This is so because, unlike the Ninth Circuit ( see id. at 278), this Court has not generally construed the Federal Rules of Civil Procedure to apply to appellate proceedings. Nor does Rule 81 appear to make Rule 60(b) pertinent here. See also Hines v. Royal Indemnity Company, 253 F.2d 111, 113 (6th Cir. 1958), in which the Court declared: “The Rules of Civil Procedure apply to procedure in the District Courts, not to the Court of Appeals.” Most courts of appeals have rooted the authority to recall a mandate in the “inherent power” of a court.

The Eighth Circuit, sitting en banc, has posited, for example, that a mandate may be recalled “[i]n the exercise of this court’s supervisory power over [a] litigation and in order to protect  the integrity of this court’s [earlier] mandate. . . .” Likewise, a panel of the Ninth Circuit has declared: “The authority of a Court of Appeals to recall a mandate is not conferred by statute, but its existence cannot be questioned. . . .” Reserve Mining Co. v. Lord, 529 F.2d 184, 188 (8th Cir. 1976). See, e. g., Powers v. Bethlehem Steel Corporation, 483 F.2d 963 (1st Cir. 1973); Perkins v. Standard Oil Company of California, 487 F.2d 672, 674 (9th Cir. 1973).

Aerojet-General Corporation v. American Arbitration Ass’n, 478 F.2d 248, 254 (9th Cir. 1973). Thus, although there are various possible sources of judicial power to recall a mandate, it is well recognized that a court of appeals has such authority. The existing precedents provide some guidance as to when it is appropriate to amend a judgment after the time for rehearing has concluded. All of the courts of appeals have emphasized that recall of a mandate is an extraordinary remedy, one to be used sparingly. And their opinions teach that recall may be warranted for “good cause,” to “prevent injustice,” or in “special circumstances.” Such phrases indicate that exercise of the authority to alter a judgment falls within the discretion of the court, but that such discretion should be employed to recall a mandate only in unusual instances. See, e. g., Aerojet-General Corporation v. American Arbitration Ass’n, 478 F.2d 248, 254 (9th Cir. 1973); Greater Boston Television Corporation v. F.C.C., 463 F.2d 268, 277 (D.C. Cir. 1971). See, e. g., Aerojet-General Corporation v. American Arbitration Ass’n, 478 F.2d 248, 254 (9th Cir. 1973); Gradsky v. United States, 376 F.2d 993, 995 (5th Cir. 1967). See, e. g., Powers v. Bethlehem Steel Corporation, 483 F.2d 963, 964 (1st Cir. 1973); Greater Boston Television Corporation v. F.C.C., 463 F.2d 268, 280 (D.C. Cir. 1971).

A few courts have attempted to enunciate specific standards for determining whether sufficient “good cause” exists to justify the recall of a mandate. The most pertinent opinion in this regard is Greater Boston Television Corporation v. F.C.C.  There, Judge Levinthal presented a series of hypothetical situations in which recall of a mandate might be proper, including (1) where clarification of a mandate and opinion is critical; (2) where misconduct has affected the integrity of the judicial process; (3) where there is a danger of incongruent results in cases pending at the same time; and (4) where it is necessary to revise an “unintended” instruction to a trial court that has produced an unjust result. 463 F.2d 268 (D.C. Cir. 1971). Id. at 278-279.

Greater Boston also implicitly recognized a fifth criterion by reference to an earlier First Circuit opinion, Legate v. Maloney,  in which it was suggested that recall of a mandate might be justified if a subsequent Supreme Court decision “showed that [the] original judgment was demonstrably wrong.” In sum, then, the opinion in Greater Boston attempts to set forth guidelines as to when a court of appeals may properly amend one of its decisions — guidelines that may prove to be helpful in the present case. 348 F.2d 164 (1st Cir. 1965). 463 F.2d at 278 and note 12, quoting Legate v. Maloney, 348 F.2d 164, 166 (1st Cir. 1965).

Above all, though, recall of a mandate is a mode of relief that falls within the  ambit of a court’s discretion. Ordinarily, such discretion should not be exercised to modify or vacate a prior judgment, absent good cause or unusual circumstances. And decisions concerning the propriety of such relief must be rendered on a case-by-case basis. With these precepts in mind, we turn to a consideration whether recall of the mandate is warranted in the instant setting. American Iron and Steel Institute v. E. P. A. United States Court of Appeals, Third Circuit Aug 10, 1977560 F.2d 589 (3d Cir. 1977)