stating that under the law-of-the-case doctrine, “the same issue presented a second time in the same case in the same court should lead to the same result” unless the decision was “clearly erroneous and would work a manifest injustice”
How later courts described this case
- stating that under the law-of-the-case doctrine, “the same issue presented a second time in the same case in the same court should lead to the same result” unless the decision was “clearly erroneous and would work a manifest injustice”
- explaining that the law of the case doctrine dictates that “[t]he same issue presented a second time in the same case in the same court should lead to the same result” (emphasis in original)
- declaring that “[t]he same issue presented a second time in the same case in the same court should lead to the same result ... in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice’ ”
- explaining that under the law-of-the-case doctrine “the same issue presented a second time in the same case in the same court should lead to the same result” (emphases omitted)
Written by the judges who cited it.
The opinion
SILBERMAN, Circuit Judge,
concurring:
I join the majority opinion; I do not think it was clear error for the original panel to have pretermitted the federal statutory and constitutional questions and directed the district judge “to fashion an equally comprehensive order based entirely on District of Columbia law, if possible.” The law of the ease exception for clear error is only awkwardly applied to a decision of a roughly contemporaneous panel of the same appellate court, which is why the majority is quite right that in this sort of situation we have law of the case plus elements of law of the circuit. Whatever the boundary between clear error and error, however, it surely cannot be clear error for the panel to have not accepted an argument — based on an analogy to Pennhurst // — which the District did not make.
Still, I do believe the original panel’s disposition was dubious. I think that the implication of Gibbs’ observation that a federal court should not exercise pendent jurisdiction if the federal claims are dismissed, see 383 U.S. at 726, 86 S.Ct. at 1139, is that the federal claims should be considered first. Ordinarily, of course, federal courts seek to avoid deciding federal constitutional questions, see Ashwander v. TVA, 297 U.S. 288, 347 , 56 S.Ct. 466, 483 , 80 L.Ed. 688 (1936) (Brandéis, J., concurring), but when the alternative is the unseemly prospect of taking over a state institution to force compliance with state law, the Ashwander doctrine should yield. By deciding Pennhurst II on Eleventh Amendment sovereign immunity grounds, the Supreme Court put paid to the prospect of federal courts being used in that fashion against a state. But there still remains the District of Columbia, which, of course, is not a state and therefore not enti *1398 tied to Eleventh Amendment protection. The District is correct, however, in arguing that whether the panel erred or not depends on whether one is to regard the District as akin to a state under the Gibbs-Pennhurst II line. We have traditionally so treated the District, and I think the panel should have done so — at least by deciding the federal questions first so that if they were decided against the plaintiffs, the case could be dismissed.
To be sure, our tradition of treating the District jurisprudentially like a state may be outmoded: the District’s “home rule” itself might well be thought a sad failure. Surely those organizations who, as plaintiffs, seek federal judicial control of more and more of the District’s governmental functions feed that perception. If home rule is to be abolished, however, it should be done by Congress, not incrementally by federal judges.