1 P ursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

. R.

47.5.4. 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 a ppeal bars our reconsideration of

whether an augmentative communication device is a covered benefit

for Fred C., an adult Medicaid recipient, under the Texas Medicaid- 2 -

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 w ho 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 hom e 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

prostheti cs; 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, unpub lished 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- 3 - genuine dispute in the summary judgment record

that: (1) he is Medicaid qualified; (2) the

subject device is medically necessary; (3) the

device i s 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. T he record is totally devoid of

proof that Fred C. is either qu alified 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 r emand, 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 th e 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

d istrict court erred by holding that, because the Texas Medic aid- 4 -

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 Serv ices

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 l aw or fact decided on appeal may not be

reexamined either by the district court on

remand or by th e appellate court on a

subsequent appeal.... This self-imposed

doctrine serves the practical goals of

encouraging finality of l itigation 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 chan ges in its members.... The

law of the ca s e 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- 5 - that a lower court on remand m ust implement

both the letter and t he 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 th ose 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

t he first time after remand

, each of the other issues rais ed by

Appellants were presented on the first appeal to the prior panel,

which remanded only for considera tion 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 th e 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 note d, under the third exception to the law of the case

doctrine, our court may re-examine a prior decision if that

decis ion is both “clearly erroneous a nd would work a manifest

injustice”. B ecerra

, 155 F.3d at 753 (emphasis added). But, we

conclude that Appellants have not established that our court’s2 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.

- 6 - pri or decision was both “clearly erroneous”; a nd 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 cite d for the rule that we review a

summary judgment de novo

, applying the same test under F ED

. R. C IV

.

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 reco nsideration of the issues presented in the

first appeal is barred under the law of the case doctrine.

In ac cordance with our court’s prior mandate, the only

remain ing 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 di scussed i nfra .) Because Appellants did not

c ontest his eligibility for home health services, the district

co urt properly granted summary judgment for Fred C. It was not

n ecessary 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.- 7 -

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. S ee 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 t he 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 off icial capacity, the

district court st ated 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. S ee, e.g., Ex

parte Young

, 209 U.S. 123 (1908); Aguilar v. Texas Department of

Criminal Just ice , ___ 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.