FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA SNOW-ERLIN, as  No. 05-16790

representative of the Estate of D.C. No.

Darrow K. Erlin, CV-99-04050-VRW Plaintiff-Appellant,  ORDER

v. AMENDING

UNITED STATES OF AMERICA, OPINION AND

Defendant-Appellee. AMENDED

OPINION 

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

Amended December 6, 2006

Before: Susan P. Graber, M. Margaret McKeown, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Graber

19179
COUNSEL

Carter C. White, Supervising Attorney, and Sean Strauss, Certified 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.

ORDER

The opinion filed on November 14, 2006, is amended as

follows: 

On slip opinion page 18546, line 2 from the bottom, insert

“as we said of another tort,” after “Plaintiff has no claim—”

SNOW-ERLIN v. UNITED STATES 19181
On slip opinion page 18546, footnote 1, line 7, delete “of”

after “question”.

Petitions for rehearing or petitions for rehearing en banc

will remain due 45 days from the November 14, 2006, filed

date of the opinion.

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 husband’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 imprisonment, which is barred by 28 U.S.C. § 2680(h). We affirm.

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 District of Nevada sentenced him to three years’ imprisonment,

two-and-one-half years of it suspended, plus five years’ probation. In 1988, Erlin was convicted of possessing cocaine

with intent to distribute, and the District Court for the Northern District of California sentenced him to 10 years’ imprisonment, plus eight years of supervised release. Because of the

1988 conviction, the Nevada court reinstated Erlin’s threeyear methaqualone sentence, and the Bureau of Prisons properly determined his release date by aggregating the two sentences 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

19182 SNOW-ERLIN v. UNITED STATES
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 Northern District of California. That court ruled that the period of

parole should have been limited to the three-year methaqualone sentence, not the aggregated 13-year term of imprisonment, because the Sentencing Reform Act of 1984 rendered

the cocaine sentence non-parolable. Therefore, the court concluded, 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 personal injury resulting from the negligent incarceration of

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, pursues 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 statuteSNOW-ERLIN v. UNITED STATES 19183
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. 

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).

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 efficiency and consistency, a “ ‘decision of an appellate court on

a legal issue must be followed in all subsequent proceedings

19184 SNOW-ERLIN v. UNITED STATES
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 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.’ ” Kellington, 217 F.3d at 1093 (quoting 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

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 statute 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). 

SNOW-ERLIN v. UNITED STATES 19185
[4] 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.

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 immunity for certain torts, 28 U.S.C. §§ 1346(b)(1), 2674, but the

statute excepts “[a]ny claim arising out of . . . false imprisonment” 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

of first impression for this court and, so far as we can determine, for any federal appellate court. 

[6] Although Plaintiff couches her claim in terms of negligence, “[t]his circuit looks beyond the labels used to determine 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 conduct 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 conduct which constitutes one of the excepted torts . . . .”). To

19186 SNOW-ERLIN v. UNITED STATES
“hold otherwise would permit evasion of the substance of

[§ 2680(h)’s] exclusion of liability.” Id. Examining the substance 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—as we

said of another tort, “the Government’s actions that constitute

a claim for slander are essential to [Plaintiff’s] claim for

negligen[ce].” Thomas-Lazear, 851 F.2d at 1207. Plaintiff

cannot sidestep the FTCA’s exclusion 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. 

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 curtailed. 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

whether, under the FTCA, that theory would be viable. 

SNOW-ERLIN v. UNITED STATES 19187