Law of the Case
This article examines the “law of the case” doctrine as it is applied by Federal Courts. “The doctrine of the law of the case is similar to [issue preclusion or collateral estoppel] in that it limits relitigation of an issue once it has been decided, but the … doctrine is concerned with the extent to which the law applied in decisions at various stages of the same litigation becomes the governing principle in later stages.” 18 Moore’s Fed. Prac. – Civil § 134.20. “This rule of practice promotes the finality and efficiency of the judicial process by ‘protecting against the agitation of settled issues.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quotation omitted).
“As most commonly defined, the doctrine [of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson, 486 U.S. at 815–16 (alternation in original) (quotation omitted). “Under the law of the case doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court in the same case.” Pac. Emplrs. Ins. Co. v. Sav-A-Lot, 291 F.3d 392, 398 (6th Cir. 2002). “The doctrine also has relevance to rulings made by state courts prior to removal [to Federal Court].” Id.
However, “[t]he doctrine ‘only applies within the same case,’ … and affects only issues that were ‘expressly’ or ‘necessarily resolved’ by prior decisions in the same case ….” Home Depot USA, Inc. v. Lafarge N. Am., Inc., 59 F.4th 55, 61 (3d Cir. 2023) (quotations omitted). “[L]aw of the case principles apply only to decisions on the actual merits.” Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001). Similarly, “[t]he law of the case doctrine presumes a hearing on the merits.” United States v. Hatter, 532 U.S. 557, 566 (2001) (citation omitted).
Moreover, “‘[d]icta is not subject to the law of the case doctrine.’” Bay v. Anadarko E&P Onshore LLC, 73 F.4th 1207, 1216 (10th Cir. 2023) (quotation omitted). See also, Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1099 n.15 (10th Cir. 2017) (“The [law of the case] doctrine does not apply to dicta—statements in an opinion that are unnecessary for its disposition.”). The law of the case doctrine is also inappropriate when the relevant issues are governed by different standards of review. See Soc’y of the Roman Catholic Church v. Interstate Fire & Cas. Co., 126 F.3d 727, 735 (5th Cir. 1997) (“This court will not apply the law of the case to factual determinations if there is a different standard of review in the two appeals.”).
Nevertheless, as a general matter, “when a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal.” Bay v. Anadarko E&P Onshore LLC, 73 F.4th 1207, 1216 (10th Cir. 2023) (quotation omitted). While lower courts are required to follow the mandate of a higher court after remand on appeal, the law of the case doctrine, “is properly characterized as discretionary in nature” when applied by an appellate court to its own prior decisions, or to the decisions of a coordinate or equal court that has made a prior determination in the case. 18 Moore’s Fed. Prac. – Civil § 134.21.
Exceptions
“[T]he law of the case doctrine does not apply to bar reconsideration of an issue when (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.”
Wheeler v. Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984) (quotation omitted).
“The first exception to the doctrine recognizes that the law of the case is the law made on a given set of facts, not law yet to be made on different facts.” Silva v. Baptist Health S. Fla., Inc., 838 F. App’x 376, 383 (11th Cir. 2020) (quotation omitted). “When the record changes, which is to say when the evidence and the inferences that may be drawn from it change, the issue presented changes as well.” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1283 (11th Cir. 2005).
In short, the first exception to the law of the case doctrine applies in situations where a subsequent trial produces substantially different evidence. See generally, Jackson, 405 F.3d at 1283 (“[T]he evidence before Judge Nelson when he entered judgment as a matter of law was substantially different from the evidence upon which we based our [prior] reversal … of summary judgment for the Board.”); Davis v. Town of Lake Park, 245 F.3d 1232, 1237 n.1 (11th Cir. 2001) (“Law of the case does not apply in this situation because [the later district court judge] based his post-trial order on a different record than [the earlier district court judge] did when addressing summary judgment.”); United States v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982) (“In deciding the issue of … consent …, the prior panel relied upon what has turned out to be, after the proceedings on remand, an erroneous view of the facts. …. In light of this new evidence and its effect on the issue of consent, we decline to adhere to the prior panel’s ruling ….”).
The second exception to the doctrine is when the law changes between the first and the second decision, in which case the court cannot disregard the new law. See Milgard Tempering v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990) (recognizing exception to the law of the case when “an intervening change in the law has occurred.”). Similarly, the doctrine would not apply if a higher court, i.e. the U.S. Supreme Court or a State Supreme Court, reaches a decision contrary to the law as applied by the court in its original decision, in which case the court must follow that new precedent. See CPC Int’l v. Northbrook Excess & Surplus Ins. Co., 46 F.3d 1211, 1215 (1st Cir. 1995) (quotation omitted) (“[A] district court may, as an exception to the law of the case doctrine, reexamine a previous ruling when ‘controlling authority has since made a contrary decision of the law applicable to such issues ….’”).
Under the third exception, “[t]he doctrine does not apply if the court is ‘convinced that [its prior decision] is clearly erroneous and would work a manifest injustice.’” Agostini v. Felton, 521 U.S. 203, 236 (1997) (quotation omitted). See also, Kennedy, 273 F.3d at 1299 (“[O]ur ability to revisit prior jurisdictional determinations is particularly strong where the prior panel’s decision is found to be clearly erroneous or contrary to the clear mandate of the law.”); Pac. Emplrs. Ins. Co., 291 F.3d at 398–99 (district court did not abuse its discretion in declining to apply the law of the case doctrine where it “was satisfied— with good reason — that the state court had made a mistake.”).
For example, in Agostini, 521 U.S. at 236, the Supreme Court held “[i]n light of our conclusion that [the prior appeal] would be decided differently under our current Establishment Clause law, we think adherence to that decision would undoubtedly work a ‘manifest injustice,’ such that the law of the case doctrine does not apply.” Similarly, in Christianson, 486 U.S. at 817, the Supreme Court held “even if the Seventh Circuit’s decision was law of the case, the Federal Circuit did not exceed its power in revisiting the jurisdictional issue, and once it concluded that the prior decision was ‘clearly wrong’ it was obliged to decline jurisdiction.”