Access Mediquip, L.L.C. v. Unitedhealthcare Insurance
698 F.3d 229
5th Cir.
2012
Check Treatment
Docket

ACCESS MEDIQUIP, L.L.C., a Texas Limited Liability Company v. UNITEDHEALTHCARE INSURANCE COMPANY, A Connecticut Corporation

No. 10-20868

United States Court of Appeals, Fifth Circuit

Oct. 5, 2012

698 F.3d 229

merated offense as that offense is understood in its ordinary, contemporary, [and] common meaning.”

at 560-61 (quoting
) (alteration in original). “If the state definition for an offense is broader than the generic definition, a conviction under that state‘s law cannot serve as a predicate for the enhancement.”
.

The Texas statute under which Hernandez was convicted criminalizes sexual contact with a child, defined as a person under the age of seventeen. TEX. PENAL CODE § 21.11(a)(1). Hernandez argues that the Texas offense is broader than the generic, contemporary definition of sexual abuse of a minor because it sets the age of consent at seventeen and criminalizes sexual activity when there is more than three years age difference between the defendant and victim.3 See id. § 21.11(a), (b)(1). Hernandez contends that most jurisdictions set the age of consent at sixteen and require that there be more than four years age difference between the actor and victim before criminal liability for sexual abuse of a minor can attach.

Hernandez concedes, however, that this court has squarely held that the offense defined in TEX. PENAL CODE § 21.11(a)(1) constitutes sexual abuse of a minor for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). See

(citing
); see also
(“We have also held that the Texas indecency with a ‘child’ statute constitutes sexual abuse of a minor under U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).“);
(“[W]e have already addressed the issue of whether a violation of [TEX. PENAL CODE] § 21.11(a) constitutes sexual abuse of a minor for purposes of § 2L1.2....“).

“It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel‘s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”

. Hernandez points to no change in the law that would allow this panel to decide the issue differently than prior panels of this court. Accordingly, we are bound by those decisions.

CONCLUSION

For the foregoing reasons, the sentence imposed by the district court is AFFIRMED.

D. Brian Hufford (argued), Pomerantz, Haudek, Grossman & Gross, L.L.P., New York City, for Plaintiff-Appellant.

JoAnn Dalrymple, Jackson Walker, L.L.P., Austin, TX, Jonathan D. Hacker (argued), Joanna Lynn Nairn, O‘Melveny & Myers, L.L.P., Washington, DC, Paula Denney, Jackson Walker, L.L.P., Houston, TX, Scott M. McElhaney, Jackson Walker, L.L.P., Dallas, TX, for Defendant-Appellee.

Thomas Tso (argued), U.S. Dept. of Labor, Waldemar Jacob Pflepsen, Jr., Jorden Burt, L.L.P., Washington, DC, Michael Christopher Drew, Sara C. Valentine, Jones Walker, New Orleans, LA, for Amici Curiae.

Before STEWART, Chief Judge, and REAVLEY, JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES and HIGGINSON, Circuit Judges.* **

PER CURIAM:

The court took en banc this case, which raises questions about the scope of liability of an ERISA plan administrator and fiduciary for allegedly misrepresenting a plan beneficiary‘s coverage in its advice to a provider of health devices. The vacated panel opinion relied primarily on this court‘s decisions in

, and
, in reaching the conclusion that three of the provider‘s state law claims, for negligent misrepresentation, promissory estoppel and violations of the Texas Insurance Code, were not preempted by ERISA.1

* Judge King did not participate in this decision.

** Judge Reavley and Judge Graves agree to reinstate the panel opinion and concur in the judgment.

The panel itself rejected, albeit without citing, this court‘s decision in

. Further, UnitedHealthcare, the plan administrator, contended in its petition for rehearing en banc that Transitional and Northbrook, and consequently the panel‘s decision, are in tension with the court‘s prior opinions in
(“Hermann I“), and
(“Hermann II“).

Having reconsidered this case en banc, we reinstate the panel opinion and overrule, to the extent inconsistent with its reasoning, the court‘s opinions in Cypress Fairbanks, Hermann I and Hermann II.

The judgment of the district court is REVERSED and the case REMANDED for further proceedings consistent herewith.

REVERSED and REMANDED.

E. GRADY JOLLY, Circuit Judge, specially concurring:

I concur. If, however, we were writing on a clean slate—that is without two decades of following Memorial Hospital, and without other circuits essentially doing the same—I would make clear that the test proposed in Memorial Hospital should be articulated in the disjunctive, not the conjunctive. Instead of requiring that “the state law claims address areas of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan; and ... the claims directly affect the relationship among the traditional ERISA entities—the employer, the plan and its fiduciaries, and the participants and beneficiaries,”

, I would make the test whether: “(1) the state law claims address areas of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan; [or] (2) the claims directly affect the relationship among the traditional ERISA entities—the employer, the plan and its fiduciaries, and the participants and beneficiaries.”
The satisfaction of either the first or second prong establishes preemption, and that is that.

Notes

1
Access Mediquip has not challenged the panel‘s rejection of its state law claims for quantum meruit and unjust enrichment; that portion of the panel opinion is reinstated.
3
The Texas statute provides an affirmative defense when, inter alia, the actor “was not more than three years older than the victim and ... did not use duress, force, or a threat against the victim at the time of the offense.” See TEX. PENAL CODE § 21.11(b).
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