Muecke Co. v. CVS Caremark Corp., 2015 U.S. App. LEXIS 15158 (5th Cir. Aug. 25, 2015):

The plaintiffs argue that the law-of-the-case doctrine or, alternatively, the mandate rule prevents the district [*9]  court from reconsidering its previous order denying the defendants' motion to compel arbitration. The law-of-the-case doctrine "is not a jurisdictional rule, but a discretionary practice" that "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (citation and quotation marks omitted). Unpublished opinions are precedential for purposes of the law of the case. 5th Cir. R. 47.5.4. The same theory and rules apply to the mandate rule, which "provides 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." Matthews, 312 F.3d at 657 (citation and quotation marks omitted). The rule does not apply when: "(1) [t]he evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; and (3) the earlier decision is clearly erroneous and would work a manifest injustice." Id.

The district court concluded that Crawford represented an intervening change in the law, fitting within an exception to the law-of-the case doctrine and the mandate rule. [Note:  This Crawford is a Fifth Circuit arbitration opinion, not the Supreme Court’s Confrontation Clause case.] The plaintiffs contend that decision was incorrect [*10]  because the Crawford panel did not consider the provider agreements' no non-party rights provision. That provision states that "no term or provision . . . is for the benefit of any person who is not a party to the [p]rovider [a]greement . . . ." The plaintiffs have argued throughout this litigation that this provision prohibits the non-signatory defendants from compelling arbitration. The Crawford panel did not address that provision. The plaintiffs make no other attempt to distinguish the facts of this case from those in Crawford. They also argue that Crawford could not overrule Muecke I, citing several cases in which we held that one panel of this court cannot overrule another even if it perceives error in the precedent.

The magistrate judge specifically concluded that Crawford required a different analysis than the one used when first considering the issue. The Crawford court considered California precedent to find the relevant law. In Muecke I, the magistrate judge had only applied Arizona law. Because an intervening precedential Fifth Circuit decision used a distinctly different analysis for the same contract, the magistrate judge here concluded there was an intervening change of law by a controlling [*11]  authority.

We agree that Crawford represents an intervening change of law by a controlling authority. It is a published opinion in which the court applied a completely different analysis than the one the district court used prior to our decision in Muecke I. Moreover, we need not determine whether the law-of-the-case doctrine or mandate rule applies because they are merely procedural. See Matthews, 312 F.3d at 657. "So long as a case remains alive, there is power to alter or revoke earlier rulings." Id. at 657 n.5 (citation and quotation marks omitted). The district court retained control of this case and altered its earlier ruling. Under Matthews, it had the authority to do so. See id. Regarding the argument that Crawford could not have overruled Muecke I, our rules make clear that an unpublished opinion such as Muecke I is not precedential. See 5th Cir. R. 47.5.4. Thus, the Crawford court was not bound by Muecke I.