Ninth Circuit Discusses Law of the Case Doctrine

Per Snow-Erlin v. United States, 470 F.3d 804 (9th Cir. Dec. 6, 2006):

This case is before us for the second time. Previously, we reversed the district court's dismissal of the action on statute-of-limitations grounds. We held that a cause of action for miscalculating a release date does not accrue until a prisoner establishes that he is legally entitled to release from custody. Erlin v. United States, 364 F.3d 1127, 1133 (9th Cir.2004). On remand, the district court dismissed the action for lack of subject matter jurisdiction, holding that the claim is, in essence, one for false imprisonment and thus is barred by 28 U.S.C. § 2680(h). Plaintiff timely appeals. Plaintiff first asserts that our earlier opinion in this case, Erlin, 364 F.3d 1127, already decided that the claim sounds in negligence. From that premise, Plaintiff argues that the law of the case doctrine forbade the district court on remand from examining the nature of the claim and characterizing it as one for false imprisonment. We disagree; Plaintiff construes our prior opinion too broadly.

"Law of the case is a jurisprudential doctrine under which an appellate court does not reconsider matters resolved on a prior appeal." Jeffries v. Wood, 114 F.3d 1484, 1488-89 (9th Cir.1997) (en banc), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997). For the sake of efficiency and consistency, a " 'decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case.' " Id. at 1489 (quoting Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir.1996)). Of course, for the law of the case doctrine to apply, we must actually have decided the matter, explicitly or by necessary implication, in our previous disposition. Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.1990). " '[O]n remand, courts are often confronted with issues that were never considered by the remanding court.' In such cases, 'broadly speaking, mandates require respect for what the higher court decided, not for what it did not decide.' " United States v. Kellington, 217 F.3d 1084, 1093 (9th Cir.2000). (quoting Biggins v. Hazen Paper Co., 111 F.3d 205, 209 (1st Cir.1997)). Here, our prior decision dealt solely with the issue of accrual of a cause of action. . . . The issue of jurisdiction under the FTCA was not before us at that time. The district court's opinion did not decide the issue, nor did the parties' briefs to this court raise it. . . . We thus hold that the district court did not run afoul of the "law of the case" doctrine when it examined subject matter jurisdiction under the FTCA.