Lashawn A. v. Marion S. Barry, Jr.

87 F.3d 1389, 318 U.S. App. D.C. 380, 1996 U.S. App. LEXIS 16256, 1996 WL 378608

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 9, 1996
• Docket: 94-7044
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge WILLIAMS, in which Circuit Judge HENDERSON joins.

RANDOLPH, Circuit Judge.

In this ongoing litigation over the District of Columbia’s foster care system, we granted rehearing in banc to decide whether one panel of this court may reconsider a prior panel’s decision directing the district court to exercise pendent jurisdiction in the ease. The answer is no.

I

In 1989, plaintiffs brought this class action on behalf of the abused and neglected children who rely on the District of Columbia’s foster care system. They alleged that the defendants — the mayor and other high-level District officials — were responsible for widespread violations of their rights under the United States Constitution, various federal statutes, and a long list of local laws. Two weeks of trial testimony revealed the District of Columbia’s deficient and inept administration of its foster care system. The testimony, and more than a thousand admissions of fact by the District, showed that District officials had consistently failed to carry out responsibilities imposed on them by federal and local laws. LaShawn A. v. Dixon, 762 F.Supp. 959, 960, 986-87 (D.D.C.1991).

The district court reached the “inescapable conclusion” that the District’s foster care system complied with neither “federal law, District law, [n]or, for those plaintiffs in the District’s foster care, the United States Constitution.” Id. at 960-61. The District’s administration of its foster care system violated numerous provisions of the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-627 and §§ 670-679, and the Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-5106.¹ The Adoption Assistance Act, the court held, conferred upon the children rights that were privately enforceable under 42 U.S.C. § 1983, which the District had violated by depriving the children of those rights. 762 F.Supp. at 988-90. The district court also found that the District’s operation of its foster care system violated numerous provisions of the District’s own Prevention of Child Abuse and Neglect Act of 1977, D.C. Law 2-22 (Sept. 23, 1977) (codified as amended at D.C.Code Ann. §§ 2-1351 to -1357, §§ 6-2101 to -2107, §§ 6-2121 to -2127, and §§ 16-2351 to -2365); the Youth Residential Facilities Li-censure Act of 1986, D.C. Law 6-139 (Aug. 13, 1986) (codified as amended at D.C.Code Ann. §§ 3-801 to -808); and the Child and Family Services Division Manual of Operations (Sept. 1985). The District’s obligations under its own laws parallel the requirements of federal law; indeed the District law requirements are, in many respects, more stringent than those in the corresponding federal statutes. Analogizing the rights of children in foster care to rights of those involuntarily committed, LaShawn, 762 F.Supp. at 992, the district court ruled that the District’s laws conferred liberty and property interests, protected under the Fifth Amendment, on the children in the custody of the District’s foster care system, id. at 994, and that the District had violated § 1983 by depriving the children in foster care of these constitutionally protected interests. 762 F.Supp. at 998.

The parties worked out a remedial order to correct deficiencies in the District’s administration of its foster care system, and the district court entered it.

In the remedial order, the District specifically reserved the right to appeal the district court’s liability ruling. The District invoked that right almost immediately, contending before this court (1) that the district court erred in finding that the administration of the District’s foster care system violated the Fifth Amendment, and (2) that the intervening decision in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), precluded any private cause of action under § 1983 or federal child welfare statutes. A unanimous panel of this court held, however, that it was unnecessary to reach those “complex constitutional and federal statutory issues.” LaShawn A. ex rel. Moore v. Kelly, 990 F.2d 1319, 1324 (D.C.Cir.1993) (“La-Shawn /”), cert. denied, — U.S. -, 114 S.Ct. 691, 126 L.Ed.2d 659 (1994). Under District law, children reported to have been abused or neglected had a private right of action to enforce the District’s Prevention of Child Abuse and Neglect Act. Turner v. District of Columbia, 532 A.2d 662 (D.C. 1987). Because a government owes greater duties toward those in its custody, the panel concluded that the children in the District’s foster care system also had a private right of action under the Act. LaShawn I, 990 F.2d at 1325. In addition, the panel noted that the other District statute relied on by the children, the Youth Residential Facilities Li-censure Act, explicitly provides these children with a private cause of action to sue under the Prevention of Child Abuse and Neglect Act. Id. at 1325-26. These statutes, the panel held, “provide[d] an independent basis for supporting the district court’s judgment.” Id. at 1326.

Accordingly, rather than reach the difficult constitutional and federal statutory questions, the LaShawn I panel remanded the case to the district court “with instructions to fashion an equally comprehensive order based entirely on District of Columbia law, if possible.” Id. The panel explained that the District’s statutory and regulatory scheme was “appropriately before us under our pendent jurisdiction,” id,, at 1324, and that federal judicial authority to decide the case on pendent grounds was “incontrovertible,” id. at 1326.

The District sought rehearing from that decision. The panel denied the petition. LaShawn A. v. Dixon, No.91-7159 (D.C.Cir. Aug. 9, 1993). The District suggested rehearing in banc. It did not get the votes. LaShawn A. v. Dixon, No. 91-7159 (D.C.Cir. Aug. 9, 1993). The District asked the Supreme Court to review the decision. Its petition for writ of certiorari was denied. Kelly v. LaShawn A. ex rel. Moore, — U.S. -, 114 S.Ct. 691, 126 L.Ed.2d 659 (1994).

On remand, the district court sought to comply with the direction of LaShawn I by entering a modified remedial order based on local law. LaShawn A. v. Kelly, Civ. No. 89-1754 (D.D.C. Jan. 27, 1994). The District of Columbia appealed again, this time arguing that (1) under both the terms of the parties’ agreement and general principles of contract law, the original remedial order should have been vacated because LaShawn I had “not affirmed” the district court’s finding of liability under federal law, and (2) the modified remedial order was not “based on” local law as required by LaShawn I.

Rather than confront those issues, a divided panel of this court remanded the case to the district court to “re-examine” its exercise of pendent jurisdiction over the claims arising under local law. LaShawn A. v. Barry, 69 F.3d 556, 570 (D.C.Cir.1995) (“LaShawn II”), vacated and reh’g in banc granted, 74 (D.C.Cir.1996). The LaShawn II majority acknowledged that LaShawn I explicitly decided that the district court had the “power” to exercise pendent jurisdiction under the first step of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). 69 F.3d at 560. The LaShawn II majority also acknowledged that the LaShawn I panel had decided — by necessary implication — that an exercise of pendent jurisdiction was appropriate under Gibbs step two. Id. Nonetheless, the LaShawn II majority concluded that it was free to revisit LaShawn I’s Gibbs step two decision because, it said, the law-of-the-case doctrine does not preclude reconsideration of “jurisdictional” questions decided but “not explicitly addressed” in a prior appeal. Id. at 562.

Upon the plaintiffs’ suggestion, we granted rehearing in banc and vacated the judgment of the LaShawn II majority. LaShawn A. v. Barry, 74 F.3d 303 (D.C.Cir.1996). We then directed the parties to brief the following question:

Under either the law-of-the-case doctrine or law-of-the-cireuit doctrine, did the decision in LaShawn I, 990 F.2d 1319 (D.C.Cir.1993), preclude the panel in LaShawn II, 69 F.3d 556 (D.C.Cir.1995), from considering whether the district court could properly exercise its jurisdiction under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)?

LaShawn A. v. Barry, No. 94-7044 (D.C.Cir. Feb. 9, 1996). We now answer that question in the affirmative.

II

Inconsistency is the antithesis of the rule of law. For judges, the most basic principle of jurisprudence is that “ ‘we must act alike in all cases of like nature.’ ”² Two time-honored doctrines help put that principle into practice. The first is 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.³ The second is the law-of-the-circuit doctrine: the same issue presented in a later case in the same court should lead to the same result. Both doctrines play a role in this ease.

“When there are multiple appeals taken in the course of a single piece of litigation, law-of-the-case doctrine holds that decisions rendered on the first appeal should not be revisited on later trips to the appellate court.” Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.Cir.), cert. denied, — U.S. -, 116 S.Ct. 180, 133 L.Ed.2d 118 (1995); see also Northwestern Ind. Tel. Co. v. FCC, 872 F.2d 465, 471 (D.C.Cir.1989), cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990). The Supreme Court has instructed the lower courts to be “loathe” to reconsider issues already decided “in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’ ” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 1391 n. 8, 75 L.Ed.2d 318 (1983)).

The LaShawn II majority identified no such “extraordinary circumstance” to justify reconsideration of LaShawn I’s pendent jurisdiction decision, and we are aware of none. There had been no intervening change in controlling legal authority, see McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 350 (D.C.Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996), and the LaShawn I decision was not “clearly erroneous.” See Christianson, 486 U.S. at 817, 108 S.Ct. at 2178.⁴ Nonetheless, the LaShawn II majority thought itself free to revisit LaShawn I’s Gibbs step two decision on the ground that the law-of-the-case doctrine contains an exception allowing a panel to reexamine any “jurisdictional” question decided, but not extensively discussed, by an earlier panel in an earlier appeal of the same case.

No such exception exists. In Christianson v. Colt Industries Operating Corp. — a case involving one circuit’s attempt to revisit the transfer decision of another circuit — the Supreme Court specifically rejected any “jurisdictional question” exception to the law-of-the-case doctrine. The Court said:

There is no reason to apply law-of-the-case principles less rigorously to transfer decisions that implicate the transferee’s jurisdiction. Perpetual litigation of any issue— jurisdictional or nonjurisdictional — delays, and therefore threatens to deny, justice.

Id. at 816-17 n. 5, 108 S.Ct. at 2178 n. 5. In reaching that conclusion, the Court rejected Potomac Passengers Ass’n v. Chesapeake & Ohio Railway, 520 F.2d 91, 95 n. 22 (D.C.Cir.1975), in which this court first suggested that the law-of-the-case doctrine might not preclude reconsideration of jurisdictional questions. Id. Before the Supreme Court decided Christianson, the lower federal courts frequently cited Potomac Passengers for the notion that jurisdictional questions are relatively unrestrained by law-of-the-case considerations. In the eight years since Christianson, however, references to Potomac Passengers have been few and far between. Only two federal courts have relied on Potomac Passengers, and then only to bolster the unremarkable conclusion that a district court is free to reconsider its own non-final jurisdictional decisions. Matek v. Murat, 862 F.2d 720, 724 n. 1 (9th Cir.1988); Travelers Indem. Co. v. Household Int’l, Inc., 775 F.Supp. 518, 530 (D.Conn.1991).⁵

That the jurisdictional question exception of Potomac Passengers is no longer good law should come as no particular surprise. Today, this court and other courts of appeals routinely apply law-of-the-case preclusion to questions of jurisdiction, see, e.g., McKesson Corp., 52 F.3d at 350; Oneida Indian Nation v. New York, 860 F.2d 1145, 1151 (2d Cir.1988), cert. denied, 493 U.S. 871, 110 S.Ct. 200, 107 L.Ed.2d 154 (1989), and do so even when the first decision regarding jurisdiction is less than explicit. See, e.g., In re Memorial Estates, Inc., 950 F.2d 1364, 1367 (7th Cir.1991), cert. denied, 504 U.S. 986, 112 S.Ct. 2969, 119 L.Ed.2d 589 (1992). The dissent complains that the LaShawn I panel did not explicitly discuss the Gibbs step two question, except to say that pendent jurisdiction was “incontrovertible.” 990 F.2d at 1326. But the Supreme Court’s holding in Christianson renders the dissent’s complaint irrelevant. The law-of-the-case doctrine, the Supreme Court said, turns “on whether a court previously decide[d] upon a rule of law ... not whether, or how well, it explained the decision.” 486 U.S. at 817, 108 S.Ct. at 2178 (internal quotation marks omitted). We said the same in Crocker, 49 F.3d at 739: the law-of-the-case doctrine applies to questions decided “explicitly or by necessary implication.” As the dissent acknowledges, the LaShawn I panel decided the Gibbs step two question “by necessary implication.” Dissent at 1399. Under Christianson, nothing more is required.⁶

The procedural setting of this case calls for an even stronger than usual version of the law-of-the-case doctrine. While law-of-the-case doctrine is a prudential creation of the courts, the law-of-the-circuit doctrine is derived from legislation and from the structure of the federal courts of appeals. Courts of appeals sit in panels, or divisions, of “not more than three judges” pursuant to the authority granted in 28 U.S.C. § 46(c). The “decision of a division” is “the decision of the court.” Revision Notes to 28 U.S.C. § 46 (citing Textile Mills Sec. Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249 (1941)); see Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 876 (D.C.Cir.1992) (in banc), cert. denied, 507 U.S. 984, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993). Were matters otherwise, the finality of our appellate decisions would yield to constant conflicts within the circuit. Textile Mills Sec. Corp., 314 U.S. at 335, 62 S.Ct. at 278. One three-judge panel, therefore, does not have the authority to overrule another three-judge panel of the court. E.g., United States v. Caldwell, 543 F.2d 1333, 1370 n. 19 (D.C.Cir.1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). That power may be exercised only by the full court, either through an in banc decision, id., or pursuant to the more informal practice adopted in Irons v. Diamond, 670 F.2d 265, 268 n. 11 (D.C.Cir.1981).

Because the law-of-the-case doctrine alone precluded the LaShawn II panel from revisiting the Gibbs decision of LaShawn I, we need not delve deeply into the interplay between the law-of-the-case and the law-of-the-circuit doctrines.⁷ Suffice it to say that, when both doctrines are at work, the law-of-the-circuit doctrine should increase a panel’s reluctance to reconsider a decision made in an earlier appeal in the same case. See, e.g., United States v. 162.20 Acres of Land, 733 F.2d 377, 379 (5th Cir.1984) (explaining that when a prior panel in the same circuit has decided an issue, law-of-the-circuit doctrine supplants law-of-the-case doctrine and precludes reconsideration of that decision in a subsequent appeal, even if the second panel believes the first was wrong), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 920 (1985); cf. Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1077 (D.C.Cir.1984) (holding that both the law of the ease and the law of the circuit precluded a panel from reconsidering issues resolved in a prior appeal in the same case), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 951 (1985). While the law-of-the-case doctrine offers several exceptions- — although not, as we have explained, a “jurisdictional question” one — the law-of-the-circuit doctrine is much more exacting. Whether the law-of-the-circuit doctrine allows reconsideration of a prior decision that was “ ‘clearly erroneous and would work a manifest injustice,’ ” see Christianson, 486 U.S. at 817, 108 S.Ct. at 2178 (quoting Arizona v. California, 460 U.S. at 618 n. 8, 103 S.Ct. at 1391 n. 8), is a question we can leave for another day: in revisiting LaShawn I, the LaShawn II majority did not identify any “clear error,” and, as we said in discussing the law-of-the-case doctrine, see supra p. 1393, we do not believe that the LaShawn I panel committed one.

Instead, the LaShawn II majority claimed that it was free to revisit LaShawn I under a “jurisdictional question” exception to the law-of-the-case doctrine. To repeat, no such exception exists. But even if it did, LaShawn I’s decision on Gibbs step two would not fall within it. As the Supreme Court explained in Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 627, 94 S.Ct. 1323, 1336, 39 L.Ed.2d 630 (1974), the view of “pendent jurisdiction as something akin to subject matter jurisdiction that may be raised sua sponte at any stage and that is capable of aborting prior federal court proceedings is a misreading of the law.”

The concept of pendent jurisdiction entails a jurisdictional element, but that is comprised in the first step of the Gibbs analysis. See Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1503 (6th Cir.1990); District of Columbia Common Cause v. District of Columbia, 858 F.2d 1, 10 (D.C.Cir.1988); Dimond v. District of Columbia, 792 F.2d 179, 188 (D.C.Cir.1986); Financial Gen. Bankshares, Inc. v. Metzger, 680 F.2d 768, 772 (D.C.Cir.1982). Step one of Gibbs deals with the court’s “power” to hear pendent local law claims — its jurisdiction — when the case raises a “substantial” federal issue and the federal and local law claims “derive from a common nucleus of operative fact” and “are such that [the plaintiff] would ordinarily be expected to try them all in one proceeding.” Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. The federal courts’ subject matter jurisdiction, to the extent Congress authorizes it, is derived directly from Article III, Section 2, extending the judicial “Power” to “all Cases in Law and Equity arising under this Constitution, the Laws of the United States....” U.S. Const. art. III, § 2; see also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 807, 106 S.Ct. 3229, 3231-32, 92 L.Ed.2d 650 (1986); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 395-96, 100 S.Ct. 1202, 1208-09, 63 L.Ed.2d 479 (1980). The doctrine of pendent jurisdiction rests on the idea that the court’s jurisdiction over the underlying federal claim brings the related pendent claims under the scope of Article III because they are part of the same “case” or “controversy.” See Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138; Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 821-23, 6 L.Ed. 204 (1824). Gibbs’s requirements of a substantial federal claim, a common nucleus of operative fact, and the expectation of one trial, 383 U.S. at 725, 86 S.Ct. at 1138, “serve[] as an operational definition of the ‘one constitutional “case” ’ language.” Richard A. Matasar, Rediscovering “One Constitutional Case”: Procedural Rules and the Rejection of the Gibbs Test for Supplemental Jurisdiction, 71 Cal. L.Rev. 1399, 1416 (1983).

There can be not the slightest doubt here that the children’s claims under federal statutory law, the Constitution, and District of Columbia law all arise from a common set of facts. The district court’s jurisdiction — its power — to decide the local law claims thus turned on the substantiality of the underlying federal claims. Whether a court may decide pendent claims is determined on the face of the pleadings. The ultimate disposition of the federal claim is “immaterial on the question of power.” 13B Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3567.1, at 114-15 (1995).

Once a district court finds a substantial federal claim, it has jurisdiction over the entire case. The court then must engage in the second step of the Gibbs analysis and decide whether to exercise that jurisdiction over the local or state law claims. This aspect of Gibbs is not a jurisdictional determination, which is why Gibbs held that “pendent jurisdiction is a doctrine of discretion. ...” 383 U.S. at 726, 86 S.Ct. at 1139.⁸ There is no other way to explain Schmidt v. Oakland Unified School District, 457 U.S. 594, 595, 102 S.Ct. 2612, 2612, 73 L.Ed.2d 245 (1982), in which the Supreme Court held that a federal court’s decision whether to resolve pendent local law claims was to be reviewed for abuse of discretion.⁹ Clearly, a question cannot be both discretionary and jurisdictional: the federal courts have no “discretion” to hear eases outside their jurisdiction. The Gibbs step two question is thus not “jurisdictional” and would not come under a “jurisdictional” question exception to the law-of-the-case doctrine if such an exception existed.¹⁰

Our analysis resolves the question we posed: the law-of-the-case and law-of-the-circuit doctrines precluded the panel in La-Shawn II from revisiting the Gibbs step two decision reached in LaShawn I. It does not, however, resolve the issues the District raised in its appeal. See supra p. 1392. Because the LaShawn II panel remanded the case to the district court to reexamine the pendent jurisdiction question, it did not address those arguments when the appeal was before it. We remit the appeal to the panel so it may do so now.

So ordered.

1 . Specifically, the court found the District in violation of the following requirements imposed upon recipients of federal funding for child welfare programs: 42 U.S.C. § 5106a(b)(2) (requiring prompt investigations into reports of abuse or neglect and necessary action to protect welfare of abused or neglected children), 762 F.Supp. at 968-70, 42 U.S.C. § 5106a(b)(3) (requiring demonstration of program to ensure effective treatment of child abuse and neglect cases), 762 F.Supp. at 970, 42 U.S.C. § 671(a)(15) (requiring provision of services to enable a child for whom a report has been made to remain in the home or, if removal is necessary, to enable the child to return home as quickly as possible), 762 F.Supp. at 970, 42 U.S.C. § 672(e) (mandating that a child return home within 180 days unless a judicial determination has been made that foster care placement is in the child's best interests), 762 F.Supp. at 971, 42 U.S.C. § 675(5)(A) (requiring procedures to assure children are placed in least restrictive settings), 762 F.Supp. at 971, 42 U.S.C. § 675(1) (requiring timely preparation of case plans containing specific information), 762 F.Supp. at 972-73, 42 U.S.C. § 675(5)(B) (requiring review of child's status at least every six months), 762 F.Supp. at 974; and 42 U.S.C. § 627(a)(2)(A) (requiring operation of information system from which status, location and goals for placement of all foster care children may be readily determined), 762 F.Supp. at 976-77.

2 . Ward v. James, [1966] 1 Q.B. 273, 294 (C.A.) (quoting Lord Mansfield in John Wilkes’ case, Rex v. Wilkes, 98 Eng. Rep. 327, 335 (1770)). See Henry J. Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982).

3 . Of course, the law-of-the-case doctrine reaches beyond the court that made the first decision. It applies just as strongly to coordinate courts, see Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 2177-78, 100 L.Ed.2d 811 (1988), and an even more powerful version of the doctrine — sometimes called the "mandate rule” — requires a lower court to honor the decisions of a superior court in the same judicial system. See Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492, 9 L.Ed. 1167 (1838).

4 .The District now argues that the LaShawn I decision was fundamentally flawed because it analyzed pendent jurisdiction under Gibbs rather than Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ("Pennhurst II"). But Pennhurst II dealt with the Eleventh Amendment to the Constitution, which prohibits federal courts from entertaining "suit[s] in law or equity, commenced or prosecuted against one of the United States." U.S. Const, amend. XI (emphasis added). The District of Columbia is not a state. It is the seat of our national government, subject — as has become increasingly clear of late — to the plenary authority of Congress under Article I, Section 8, Clause 17 of the Constitution. Thus, Pennhurst II has no application here. Perhaps that is why the District failed even to mention Pennhurst II in its petition for rehearing, suggestion for rehearing in banc, and petition for certiorari from LaShawn I.

5 . The Tenth Circuit recently cited Potomac Passengers as support for the argument that the “always-open character of jurisdictional questions" should be “a consideration weighing against” the application of the law-of-the-case doctrine to such questions. Wilmer v. Board of County Comm'rs, 69 F.3d 406, 410 n. 3 (10th Cir.1995). The Wilmer court did not adopt that view, however; it held only that the law-of-the-case doctrine does not preclude consideration of questions — jurisdictional or otherwise — that were not decided in a prior appeal. Id. at 409-10. Because the LaShawn I panel in fact necessarily decided the Gibbs step two question (dissent at 1399), the Wilmer holding has no application here.

6 . As the dissent notes (dissent at 1399), the Supreme Court said in Pennhurst II that it does not consider itself bound by decisions on questions of jurisdiction made sub silentio in previous cases "when a subsequent case finally brings the jurisdictional issue” to the Court. 465 U.S. at 119, 104 S.Ct. at 918 (internal quotation marks and citation omitted). But that plainly has nothing to do with this appeal. The quoted portion of Pennhurst II dealt with the stare decisis effect of decisions in other cases, not the effect of earlier decisions by the same appellate court in the same case.

7 . There are situations in which the law-of-the-case doctrine but not the law-of-the-circuit doctrine applies. If a party fails to raise a point he could have raised in the first appeal, the "waiver variant” of the law-of-the-case doctrine generally precludes the court from considering the point in the next appeal of the same case. See Crocker, 49 F.3d at 739-40. The law-of-the-circuit doctrine would not, however, bind another panel. Without a holding on the point, the first panel’s decision would have no precedential effect. "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925).

8 . While it is true that the Supreme Court in Gibbs explained that the step two question remains open through "the litigation,” see dissent at 1403, the Court meant only that the question need not be decided forever on the pleadings, but could be reconsidered during pretrial proceedings or even the trial itself. See Gibbs, 383 U.S. at 727, 86 S.Ct. at 1139-40.

9 . Congress has also explicitly recognized the discretionary nature of the second step of the Gibbs inquiry. The Judicial Improvements Act, enacted in 1990 and codified in part at 28 U.S.C. § 1367, states:

... in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

28 U.S.C. § 1367(a) (italics added). When the federal claim drops out, the district court has discretion to retain or dismiss the pendent local law claims: "The district courts may decline to exercise supplemental jurisdiction over a claim in subsection (a)” for any of the reasons listed in § 1367(c)(l)-(4). 28 U.S.C. § 1367(c) (italics added).

Section 1367 does not apply in this particular case because the children’s complaint was filed before the statute's effective date. Still, § 1367’s language is instructive in that the provision, inter alia, "codified the doctrine of pendent jurisdiction developed by the Supreme Court in the case of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), and its progeny." Shanaghan v. Cahill, 58 F.3d 106, 109 (4th Cir.1995); see also Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1266 (D.C.Cir.1995).

10 . The dissent suggests that Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (D.C.Cir.1990), and Maguire v. Marquette University, 814 F.2d 1213 (7th Cir.1987), imply that the Gibbs step two is jurisdictional. Dissent at 1403-1404. They do not. Those cases treated as "jurisdictional” only the Gibbs "rule” that "if the federal claims are dismissed before trial ... the state claims should be dismissed as well.” See Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; Minker, 894 F.2d at 1361; Maguire, 814 F.2d at 1218 n. 4.