United States v. 2006-11-13 | 05-16790 | SNOW-ERLIN VUSA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 BARBARA SNOW-ERLIN, as
representative of the Estate of No. 05-16790
Darrow K. Erlin, D.C. No. Plaintiff-Appellant,  CV-99-04050-VRW
v. OPINION
UNITED STATES OF AMERICA,
Defendant-Appellee. 
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted
October 16, 2006—San Francisco, California
Filed November 14, 2006
Before: Susan P. Graber, M. Margaret McKeown, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Graber
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COUNSEL
Carter C. White, Supervising Attorney, and Sean Strauss, Cer-
tified Law Student, King Hall Civil Rights Clinic, U.C. Davis
School of Law, Davis, California, for the plaintiff-appellant.
Claire T. Cormier, Assistant United States Attorney, San Jose,
California, for the defendant-appellee.
OPINION
GRABER, Circuit Judge:
Plaintiff Barbara Snow-Erlin sued the United States under
the Federal Tort Claims Act (“FTCA”) for damages resulting
from an allegedly negligent miscalculation of her late hus-
band’s release date from parole. The district court dismissed
the action for lack of subject matter jurisdiction, holding that
the negligence claim amounted to a claim for false imprison-
ment, which is barred by 28 U.S.C. § 2680(h). We affirm.
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FACTUAL AND PROCEDURAL HISTORY
The relevant facts are not disputed. In 1984, Darrow Erlin
was convicted of conspiracy to manufacture and attempt to
manufacture methaqualone, and the District Court for the Dis-
trict of Nevada sentenced him to three years’ imprisonment,
two-and-one-half years of it suspended, plus five years’ pro-
bation. In 1988, Erlin was convicted of possessing cocaine
with intent to distribute, and the District Court for the North-
ern District of California sentenced him to 10 years’ impris-
onment, plus eight years of supervised release. Because of the
1988 conviction, the Nevada court reinstated Erlin’s three-
year methaqualone sentence, and the Bureau of Prisons prop-
erly determined his release date by aggregating the two sen-
tences into a 13-year term of imprisonment. In 1995, Erlin
was released from prison. In 1996, he was arrested for driving
under the influence of alcohol. As a result of the 1996 arrest
and his failure to report it to his parole officer, the court in the
Northern District of California revoked Erlin’s supervised
release for his cocaine conviction and sentenced him to six
months’ imprisonment. In addition, the Parole Commission
revoked Erlin’s parole and sentenced him to 20 additional
months of imprisonment.
In 1997, Erlin successfully challenged the jurisdiction of
the Parole Commission in a habeas petition filed in the North-
ern District of California. That court ruled that the period of
parole should have been limited to the three-year methaqua-
lone sentence, not the aggregated 13-year term of imprison-
ment, because the Sentencing Reform Act of 1984 rendered
the cocaine sentence non-parolable. Therefore, the court con-
cluded, Erlin’s parole had expired by the time of his 1996
arrest, and the Parole Commission had no jurisdiction to
impose any additional term of imprisonment. The United
States did not appeal that decision. The Bureau of Prisons
released Erlin.
In 1999, Erlin filed suit against the United States “for per-
sonal injury resulting from the negligent incarceration of
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plaintiff by the government’s employees.” The complaint
alleged that Erlin “spent three hundred-eleven (311) days in
Federal custody, from December 28, 1996 to November 7,
1997, in violation of his rights pursuant to the negligent acts
and omissions of the defendant.” Thus, “Defendants were
negligent and breached their duty to plaintiff by negligently
and wrongfully seizing and incarcerating him. Defendants
erroneously determined plaintiff’s parole expiration date and
failed to use due care by keeping plaintiff in custody where
there existed no lawful justification for detaining plaintiff
against his will.”
In 2002, Erlin died. His widow, Barbara Snow-Erlin, pur-
sues the claim on his estate’s behalf.
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 mis-
calculating 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.
STANDARD OF REVIEW
We review de novo a district court’s compliance with our
mandate. United States v. Kellington, 217 F.3d 1084, 1092
(9th Cir. 2000). We also review de novo a district court’s
order dismissing a case for lack of subject matter jurisdiction.
Hacienda Valley Mobile Estates v. City of Morgan Hill, 353
F.3d 651, 654 (9th Cir. 2003).
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DISCUSSION
A. The district court did not run afoul of the “law of the
case” doctrine.
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.
[1] “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 effi-
ciency 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. Rainbow
Magazine, Inc. (In re Rainbow Magazine, Inc.), 77 F.3d 278,
281 (9th Cir. 1996)). Of course, for the law of the case doc-
trine to apply, we must actually have decided the matter,
explicitly or by necessary implication, in our previous dispo-
sition. 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, man-
dates require respect for what the higher court decided, not for
what it did not decide.’ ” Kellington, 217 F.3d at 1093 (quot-
ing Biggins v. Hazen Paper Co., 111 F.3d 205, 209 (1st Cir.
1997)).
[2] Here, our prior decision dealt solely with the issue of
accrual of a cause of action. The opening paragraph of the
opinion delineates its scope: “This is a statute of limitations
case. The issue is when a cause of action accrued for purposes
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of the statute of limitations under the Federal Tort Claims
Act.” Erlin, 364 F.3d at 1129. We observed that Plaintiff’s
claim “is not for false imprisonment. It is for negligence.” Id.
at 1133. But that passage was a “description[ ] rather than [a]
disposition[ ] of [Plaintiff’s] claim[ ].” Rebel Oil Co. v. Atl.
Richfield Co., 146 F.3d 1088, 1094 (9th Cir. 1998). We took
the claim as alleged on the face of the complaint in order to
determine the applicability of Heck v. Humphrey, 512 U.S.
477 (1994), and in order to decide solely the underlying stat-
ute of limitations question.
[3] 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. “[A court] is not bound by a prior exercise of jurisdiction
in a case where it was not questioned and it was passed sub
silentio.” United States v. L.A. Tucker Truck Lines, Inc., 344
U.S. 33, 38 (1952); Bassiri v. Xerox Corp., 463 F.3d 927, 933
n.3 (9th Cir. 2006).
[4] We thus hold that the district court did not run afoul of
the “law of the case” doctrine when it examined subject mat-
ter jurisdiction under the FTCA.
B. The district court correctly held that it lacks subject
matter jurisdiction.
Plaintiff argues that the action may go forward under the
FTCA because the complaint alleges negligence. Again, we
disagree.
[5] The FTCA waives the United States’ sovereign immu-
nity for certain torts, 28 U.S.C. §§ 1346(b)(1), 2674, but the
statute excepts “[a]ny claim arising out of . . . false imprison-
ment” from its waiver of immunity, id. § 2680(h). Whether a
claim for negligent miscalculation of a release date arises out
of false imprisonment for purposes of the FTCA is a question
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of first impression for this court and, so far as we can deter-
mine, for any federal appellate court.
[6] Although Plaintiff couches her claim in terms of negli-
gence, “[t]his circuit looks beyond the labels used to deter-
mine whether a proposed claim is barred [under § 2680(h)].”
Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988).
“[W]e look beyond [the party’s] characterization to the con-
duct on which the claim is based.” Mt. Homes, Inc. v. United
States, 912 F.2d 352, 356 (9th Cir. 1990); see also Klein v.
United States, 268 F.2d 63, 64 (2d Cir. 1959) (per curiam)
(examining the conduct behind a claim of negligence); Sopp
v. United States, 373 F.2d 795, 796 (3d Cir. 1966) (per
curiam) (same); Gaudet v. United States, 517 F.2d 1034, 1035
(5th Cir. 1975) (per curiam) (same); Metz v. United States,
788 F.2d 1528, 1534 (11th Cir. 1986) (same). If the gravamen
of Plaintiff’s complaint is a claim for an excluded tort under
§ 2680(h), then the claim is barred. See Sheehan, 896 F.2d at
1171 (“Regardless of the plaintiff’s characterization of the
cause of action, § 2680(h) bars suit for claims based on con-
duct which constitutes one of the excepted torts . . . .”). To
“hold otherwise would permit evasion of the substance of
[§ 2680(h)’s] exclusion of liability.” Id. Examining the sub-
stance of Plaintiff’s complaint, the gravamen of the complaint
is a claim for false imprisonment.
[7] The only harm alleged is that the United States kept
Erlin imprisoned for 311 days too long.1 Independent of that
alleged false imprisonment, Plaintiff has no claim—“the Gov-
ernment’s actions that constitute a claim for slander are essen-
1At oral argument, counsel asserted that the government’s negligence
also resulted in a separate type of harm, to wit, extra time on parole before
Erlin was imprisoned, during which time some of his liberties were cur-
tailed. We decline to consider this theory because it finds no basis in the
complaint as filed and is raised for the first time on appeal. Cold Mountain
v. Garber, 375 F.3d 884, 891 (9th Cir. 2004) (citing Bolker v. Comm’r,
760 F.2d 1039, 1042 (9th Cir. 1985)). We leave open the question of
whether, under the FTCA, that theory would be viable.
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tial to [Plaintiff’s] claim for negligen[ce].” Thomas-Lazear,
851 F.2d at 1207. Plaintiff cannot sidestep the FTCA’s exclu-
sion of false imprisonment claims by suing for the damage of
false imprisonment under the label of negligence. See id. at
1206 (disapproving “an effort to remove the damage element
from an intentional tort barred by section 2680(h) and plead
it separately as negligen[ce]”); see also Sheehan, 896 F.2d at
1173 (requiring independence from the excluded tort) (citing
Block v. Neal, 460 U.S. 289, 296-99 (1983)).
[8] In summary, we hold that Plaintiff’s claim arises out of
false imprisonment and thus is barred by 28 U.S.C. § 2680(h).
AFFIRMED.
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