When a motion to dismiss a preliminary injunction has been granted by the Court of Appeal, when the motion is also dismissed by the District Court on the basis of a failure to exhaust tribal remedies, does the motion merge into the final judgment?

When a case is dismissed while an appeal of an order on a preliminary injunction is pending, the preliminary injunction order "merges" into the final judgment. See SEC v. Mount Vernon Memorial Park , 664 F.2d 1358, 136162 (9th Cir. 1982). We originally applied the merger doctrine when the final judgment was on the merits and in favor of the same party that prevailed on the preliminary injunction motion, because "[t]o attempt to review the district court's advance assessment of probabilities of plaintiff's success when the district court has now found in favor of plaintiffs on the merits seems a

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futile exercise." Id. at 1361 (quoting United States v. City of Chicago , 534 F.2d 708, 712 (7th Cir. 1976) ). However, we have since applied it in situations analogous to the one before us, when the district court denied a preliminary injunction and also dismissed the case on a non-merits ground. See Evans v. Shoshone-Bannock Land Use Policy Comm'n , 736 F.3d 1298, 1301 & n.4 (9th Cir. 2013) (holding that the denial of the preliminary injunction merged into the final judgment when the district court granted a motion to dismiss based on a failure to exhaust tribal remedies).