UNITED STATES COURT OF APPEAL
FOR THE FIFTH CIRCUIT
_____________________
No. 97-51094
_____________________
FRED C., Individually and by and through
his next friend Evelyn Tattini,
Plaintiff-Appellee,
versus
TEXAS HEALTH AND HUMAN SERVICES COMMISSION, ET AL.,
Defendants,
TEXAS HEALTH AND HUMAN SERVICES COMMISSION;
TEXAS DEPARTMENT OF HUMAN SERVICES; BURTON RAIFORD,
Commissioner, Texas Department of Health;
TEXAS DEPARTMENT OF HEALTH; DAVID SMITH, Dr.,
Commissioner of Texas Department of Health;
MIKE McKINNEY, Commissioner, Texas Department
of Human Services,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-94-CV-1028)
_________________________________________________________________
December 23, 1998
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:1
The linchpin to this second appeal in this case is whether our
court’s opinion for the first appeal bars our reconsideration of
whether an augmentative communication device is a covered benefit
for Fred C., an adult Medicaid recipient, under the Texas Medicaid
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
program. The Commissioners of the Texas Health and Human Services
Commission, the Texas Department of Human Services, and the Texas
Department of Health (collectively, Appellants) appeal the summary
judgment in favor of Fred C. We AFFIRM.
I.
Fred C., a Medicaid recipient who suffers from dysarthria,
which impedes his ability to speak, brought this action for
injunctive and declaratory relief, seeking to require Texas
Medicaid to provide him an augmentative communication device (ACD).
In May 1996, the district court granted summary judgment for Fred
C., concluding that an ACD is durable medical equipment or a
prosthetic device, covered by Texas Medicaid under its provisions
for home health services.
Appellants appealed, contending that the district court erred
by holding that, because ACDs are provided to Medicaid recipients
under age 21, the device must be provided to Fred C., who is over
age 21; that Fred C. failed to establish that he met the
eligibility requirements for home health services; that the
district court erred by holding that Appellants were required under
the Medicaid Act to provide ACDs as durable medical equipment or as
prosthetics; and that Fred C.’s claims against Appellants should
have been dismissed because Fred C. had moved to a program under
the jurisdiction of a non-defendant agency.
In a short, unpublished opinion, our court vacated the
judgment and remanded the case, stating:
To prevail on his motion for summary
judgment Fred C. must establish beyond any
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genuine dispute in the summary judgment record
that: (1) he is Medicaid qualified; (2) the
subject device is medically necessary; (3) the
device is provided by Texas Medicaid in its
home health services; and, finally, (4) he is
qualified for home health services. The
record abundantly establishes that Fred C. is
Medicaid qualified, that the device is
medically necessary, and that it is provided
by Texas Medicaid in its home health services
program. The record is totally devoid of
proof that Fred C. is either qualified or is
not qualified under the home health services.
As a consequence, for failure of proof of this
essential element, the district court properly
denied the motion for summary judgment filed
by Texas Health. Concomitantly, the district
court erred in granting Fred C.’s motion for
summary judgment.
Fred C. v. Texas Health & Human Services Comm’n, No. 96-50417 (5th
Cir. May 27, 1997) (unpublished).
On remand, the district court recognized that our court had
remanded the case “for the purpose of establishing whether Fred C.
is qualified to receive home health services under the Texas
Medicaid program”. Observing that Appellants did not controvert
the evidence that Fred C. was qualified to receive home health
services, the district court again granted summary judgment to Fred
C. Noting that it appeared that our court’s opinion had concluded
that the ACD was a covered benefit, the district court stated that
it was addressing that issue only “out of an abundance of caution”.
The district court’s opinion on remand is almost identical to its
initial opinion, with only slight changes.
II.
In this second appeal, Appellants contend again that the
district court erred by holding that, because the Texas Medicaid
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program provides ACDs to recipients under age 21, an ACD must
likewise be provided to Fred C.; that the district court erred by
holding that an ACD must be provided to Fred C. as durable medical
equipment or as a prosthetic device under the category of home
health services; and that the Texas Health and Human Services
Commission (THHSC), the Texas Department of Human Services (TDHS),
and their Commissioners should have been dismissed because Fred C.
has moved to a program under the jurisdiction of a non-defendant
agency. In addition, Appellants contend, as they did in district
court for the first time after remand, that all three of the agency
appellants are immune from suit under the Eleventh Amendment.
A.
As our court recently reiterated,
Under the law of the case doctrine, an issue
of law or fact decided on appeal may not be
reexamined either by the district court on
remand or by the appellate court on a
subsequent appeal.... This self-imposed
doctrine serves the practical goals of
encouraging finality of litigation and
discouraging panel shopping. It is predicated
on the premise that there would be no end to a
suit if every obstinate litigant could, by
repeated appeals, compel a court to listen to
criticisms on their opinions or speculate of
chances from changes in its members.... The
law of the case doctrine, however, is not
inviolate. We have explained that a prior
decision of this court will be followed
without re-examination ... unless (i) the
evidence on a subsequent trial was
substantially different, (ii) controlling
authority has since made a contrary decision
of the law applicable to such issues, or (iii)
the decision was clearly erroneous and would
work a manifest injustice....
A corollary of the law of [the] case
doctrine, known as the mandate rule, provides
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that a lower court on remand must implement
both the letter and the spirit of the
appellate court’s mandate, and may not
disregard the explicit directives of that
court. The mandate rule simply embodies the
proposition that a district court is not free
to deviate from the appellate court’s mandate.
United States v. Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998)
(emphasis added; internal quotation marks and citations omitted).
The law of the case doctrine encompasses issues “decided by
necessary implication as well as those decided explicitly”.
Alberti v. Klevenhagen, 46 F.3d 1347, 1351 n.1 (5th Cir. 1995).
With the exception of the Eleventh Amendment issue, raised for
the first time after remand, each of the other issues raised by
Appellants were presented on the first appeal to the prior panel,
which remanded only for consideration of whether Fred C. was
qualified for home health services. The parties did not brief the
applicability of the law of the case doctrine or any of its
exceptions. Accordingly, counsel were directed to be prepared to
discuss at oral argument whether the law of the case doctrine
precludes us from revisiting the issues decided on the first
appeal. At oral argument, Appellants asserted that the third
exception to the law of the case doctrine is applicable, because
our court’s prior decision “was clearly erroneous”.
As noted, under the third exception to the law of the case
doctrine, our court may re-examine a prior decision if that
decision is both “clearly erroneous and would work a manifest
injustice”. Becerra, 155 F.3d at 753 (emphasis added). But, we
conclude that Appellants have not established that our court’s
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prior decision was both “clearly erroneous”; and that it “would
work a manifest injustice” if we do not reconsider the issues
presented in the first appeal. Accordingly, under the law of the
case doctrine, we are not free to re-examine those issues.
No authority need be cited for the rule that we review a
summary judgment de novo, applying the same test under FED. R. CIV.
P. 56 as did the district court. Accordingly, in affirming the
district court’s second summary judgment, we are not passing on the
correctness of, nor do we adopt, the district court’s opinion; we
hold merely that reconsideration of the issues presented in the
first appeal is barred under the law of the case doctrine.
In accordance with our court’s prior mandate, the only
remaining issue presented in the first appeal that was properly
before the district court on remand was whether Fred C. was
eligible to receive home health services. (The new Eleventh
Amendment issue is discussed infra.) Because Appellants did not
contest his eligibility for home health services, the district
court properly granted summary judgment for Fred C. It was not
necessary for the district court to readdress the other coverage
issues re-urged by Appellants on remand; as the court noted, it did
so only out of an abundance of caution.2
B.
2
The 4 September 1998 interpretive guidance letter issued
by the Director of the Center for Medicaid and State Operations,
Health Care Financing Administration, United States Department of
Health and Human Services, is advisory only, and has no bearing on
our disposition of this appeal.
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The law of the case doctrine is not applicable to the Eleventh
Amendment issue because it was not raised until after remand. And,
Appellants’ assertion of the issue was timely. See Edelman v.
Jordan, 415 U.S. 651, 678 (1974) (“the Eleventh Amendment defense
sufficiently partakes of the nature of a jurisdictional bar so that
it need not be raised in the trial court”).
Appellants concede that the Eleventh Amendment does not
immunize the Commissioners of the appellant agencies from suit
against them in their official capacities for prospective relief;
instead, they contend that the agencies, as entities, are immune.
On remand, the district court did not expressly address the
Eleventh Amendment claims; but, in response to Appellants’
contention that the only proper defendant is the Commissioner of
the Texas Department of Health, in her official capacity, the
district court stated that THHSC and TDHS, through their
Commissioners, were also proper defendants. Thus, the district
court implicitly agreed with Appellants’ assertion that the
agencies, as entities, are not subject to suit. See, e.g., Ex
parte Young, 209 U.S. 123 (1908); Aguilar v. Texas Department of
Criminal Justice, ___ F.3d ___, ___, 1998 WL 789435, at *2 (5th
Cir. 1998). Therefore, the district court correctly decided this
issue.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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