664 F.2d 1358, 1361-62 (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 plaintiffs success when the district court has now found in favor of plaintiffs on the merits seems a 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>). Applying the merged doctrine in this
holding preliminary injunction improper where it exceeded the relief sought and granted the same relief which would have been given in a final order of permanent injunction holding that trial court properly granted motion to dismiss for lack of subject matter jurisdiction because plaintiff had failed to exhaust remedies available through exclusive grievance procedure 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 holding that when the district court applies the wrong preliminary injunction standard this court may review the record to determine whether the injunction is justified holding that the courts denial of either a motion to dismiss or a motion for summary judgment is not a final judgment and is not reviewable 