UNITED STATES of America, Plaintiff-Appellee, v. Reginald James TERRELL, Defendant-Appellant.
No. 91-3653.
United States Court of Appeals, Fifth Circuit.
Feb. 17, 1993.
983 F.2d 653
We can easily distinguish United States v. LePicard, 723 F.2d 663 (9th Cir.1984), a case reaching an arguably contrary conclusion. Although LePicard‘s bond contained similar language, it was executed by a corporate surety, who was not present at the hearing setting a new condition of release. Here, the bond was executed by Mr. Terrell himself, and he was present at the hearing where the magistrate judge issued the amended order. The Ninth Circuit concluded first that the new term, forbidding defendant to break any law, materially increased the risk to the surety without its consent. Second, the court stated, without discussing travel restrictions and restrictions on possession of controlled substances, that this condition did not qualify as “relating to appearance.” In dicta, LePicard also seemed to limit orders “relating to appearance” to “orders stating the times and places that defendant may be required to appear,” an analysis seemingly more restrictive than the one we adopt today. Id., 723 F.2d at 665. Neither LePicard‘s dicta, however, nor the enforceability of post hoc imposition of a significant bond term is controlling in this situation.
In short, we conclude that the parties to Mr. Terrell‘s appearance bond intended its conditions to include both conditions contained in the bond itself, as well as conditions ordered by the magistrate judge with respect to reporting to the Pre-trial Services agency, travel restrictions, and possession of controlled substances. The district court therefore properly considered violation of these conditions in ordering forfeiture.
III.
ABUSE OF DISCRETION
Terrell further complains that the district court abused its discretion by failing to set aside the forfeiture on the ground that “justice does not require the forfeiture.” Terrell did not present this argument to the district court, and the district court did not rule on the question of set-aside or remission.
A district court‘s decision denying set-aside or remission is reviewed for abuse of discretion. United States v. Dunn, 781 F.2d 447, 452 (5th Cir.1986). Where, as here, the district court has not even exercised its discretion, there is nothing for this Court to review. We will not consider issues not urged in the trial court, except when the failure to do so would lead to grave injustice. Masat v. United States, 745 F.2d 985, 988 (5th Cir.1984). While there may be grounds for set-aside of the forfeiturе, they are not so compelling that the failure of this Court to consider them would constitute a grave injustice. United States v. Cervantes, 672 F.2d 460 (5th Cir.1982); United States v. Parr, 594 F.2d 440 (5th Cir.1979).
The judgment of the district court is affirmed.
AFFIRMED.
Linda W. BURKEY and Carey David Burkey, Plaintiffs-Appellees, Cross-Appellants, and Department of Health & Human Resources, et al., Intervenors-Plaintiffs-Appellees, v. GOVERNMENT EMPLOYEES HOSPITAL ASSOCIATION, Defendant-Appellant, Cross-Appellee.
No. 91-3653.
United States Court of Appeals, Fifth Circuit.
Feb. 17, 1993.
983 F.2d 656
William Kanter, John P. Schnitker, U.S. Dept. of Justice, Washington, DC, for amicus curiae U.S. Office of Personnel Management.
Gayle Anne Reynolds, LeBrun, Mackles & Reynolds, New Orleans, LA, for Burkeys.
Miles Trapolin, New Orleans, LA, for DHHR.
Before DAVIS and JONES, Circuit Judges, and Parker1, District Judge.
EDITH H. JONES, Circuit Judge:
Linda W. Burkey Mahaffey, a federal employee, and Carey David Burkey filed suit in 1986 contending that the Government Employees Hospital Association (“GEHA“) breached its contractual agreement to pay Carey David Burkey‘s medical bills. They were awarded recovery under Louisiana law, which authorizes damages and attorneys’ fees for unreasonable delay in paying health and accident insurance claims.
BACKGROUND
The facts are recited as found by the district court. On December 17, 1981 plaintiff, Linda Burkey, an employee of the Naval Station in New Orleans, had family coverage for herself and her son, Carey, under a group health policy issued by GEHA as an authorized carrier under the Federal Employees Health Benefits Act (“FEHBA“),
Regulations of the federal Office of Personnel Management, which superintends FEHBA,
Immediately upon learning of her son‘s serious condition, Mrs. Burkey contacted her employer seeking confirmation that Carey was covered by GEHA so he could be transferred to a private hospital specializing in treatment of spinal cord injuries. Despite her own contact with GEHA verbally and through her employer and her repeated written pleas for help, Burkey never received that confirmation. Her son continued on public assistance at Charity. On June 1, 1982, Linda Burkey prepared for her lawyer to submit to GEHA its claim form E-1 seeking confirmation that Carey‘s medical needs as a result of his 1981 injury were covered. The E-1 was received by GEHA before June 25, 1982. In response to her E-1, plaintiff received a GEHA form F-012 stating only, “children are covered until age 22,” without further explanation.2 When, in late 1982, Mrs. Burkey received a copy of GEHA‘s “open seаson” announcement that referenced the 31-day extension following a person‘s 22nd birthday, she wrote to GEHA‘s claim office and inquired whether Carey was entitled to the 31-day extension of coverage. Her letter advised GEHA of all pertinent facts needed to determine whether or not Carey was entitled to medical services: (a) Carey severed his spinal cord in a December 1981 accident; (b) GEHA refused coverage and Carey had been in Charity Hospital continuously since that time; (c) she had sent an E-1 to GEHA in June 1982; (d) she had received form F-012 from GEHA apparently denying Carey‘s entitlement to coverage because he was over age 22. GEHA did not respond to plaintiff‘s lеtter.
On December 23, 1982, Mrs. Burkey again wrote to GEHA‘s claim office addressing her letter to its President, Mr. Rowland. She enclosed copies of her E-1 and GEHA‘s F-012 denying coverage. On December 23, Mrs. Burkey also wrote to Congresswoman Lindy Boggs and outlined the difficulties with GEHA. Because Carey‘s insurance benefits were never confirmed by GEHA, Carey was never transferrеd to a private specialty hospital.
GEHA‘s trial representative testified that if she had received the E-1 and Mrs. Burkey‘s letters referred to above, she
Having found out about the Burkeys’ lawsuit аgainst GEHA, Louisiana‘s Department of Health and Human Resources (“DHHR“) intervened to assert its interest in the claim for medical expenses incurred by Charity Hospital. The case was tried to the court without a jury on March 21, 1991. At the conclusion of the trial, the court gave oral reasons for judgment in favor of plaintiffs under the Louisiana statutory pеnalty provision, and it remanded to a magistrate judge for an evidentiary hearing to determine reasonable attorneys’ fees and the amount of medical bills. The magistrate judge recommended that $40,000 in attorneys’ fees were reasonable and that $44,693 be recognized as the actual amount of medical expenses due. The court initially entered judgment in favor of the Burkeys for twice the amount of medical expenses plus attorneys’ fees of $40,000. After revising the judgment to recognize the intervenors’ interest, the final damage award against GEHA remained $129,386, but $44,693 of that amount was ordered to be paid to DHHR and twenty-five percent of the $40,000 attorneys fees was ordered payable to the plaintiffs’ former attorneys, who had also intervened.
The Burkeys and GEHA have appealed, but neither DHHR nor the attorney intervenors have done so. GEHA asserts that the district court incorrectly interpreted the scope of FEHBA preemption and therefore improperly applied Louisiana law in assessing сoverage and awarding damages and attorneys fees. Further, GEHA claims that the substantive finding of coverage was incorrect under the GEHA plan. We agree with GEHA‘s preemption argument but disagree with its contention that plaintiffs’ expenses were not covered by the plan because no complete claim form was filed. The Burkeys аre thus entitled to recover only the stipulated expenses of $44,693 incurred at Charity Hospital, together with pre- and post-judgment interest, subject to the intervention judgment awarded DHHR by the district court.3
DISCUSSION
While one federal circuit court has held otherwise concerning the scope of FEHBA preemption of state law, “The weight of authority аnd most persuasive analysis supports the position that state law claims are preempted“.4 Federal Plaza Medical Associates v. Palermino, 1991 WL 29201 (S.D.N.Y.). Federal preemption of state law is fundamentally “a question of Congressional intent ...” English v. General Elec. Co., 496 U.S. 72, 78, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990) (citation omitted). Congress expressed itself with unusual clarity in
The provisions of any contract under this chapter which relate to the nature or еxtent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or regulation issued thereunder, to the extent that such law or regulation is inconsistent with such contractual provisions.
The policy underlying
The Burkeys argue that their state law claim for penalties is not preempted under
Insofar as the Burkeys’ claim for statutory delay damages necessarily refers to GEHA‘s plan to determine coverage and whether the proper claims handling process was followed, it refers to the plan, “relates to” it and is therefore preempted. Further, preemption is required because imposition of Louisiana‘s statutory penalties would invariably expand GEHA‘s obligations under the terms of its plan and would foster interstate conflicts in coverage.
As
HOW TO FILE CLAIM
1. Aftеr you have incurred covered expenses exceeding the deductible, submit a completed Form E-1 Employee Statement of Claim for reimbursement of covered expenses in excess of the Deductible. Include copies of the bills with your claim to show that you met the Deductible. A separate claim form must be submitted for eаch covered family member.
2. Submit an attending doctor‘s statement (Form S02). This form must be completed by the principal attending doctor and all items must be answered. If assignment authorizing direct payment to the doctor is desired you should complete and sign the upper portion of Form S-2. A Form S-2 need not be completed by any other attending dоctor unless requested by the Plan.
3. If you wish to authorize direct payment to a hospital, show your identification card upon admission. The hospital completes their own form or will send an itemized statement to the Government Employees Hospital Association (GEHA). If you do not wish to authorize direct payment to a hospital, see 4.
4. Submit hospital and doctor bills itemized to show—
Name of the person for whom service was rendered
Name of the attending doctor and/or admitting hospital
Dаte charge was incurred, statement of the diagnosis or treatment given and amount of the charge.
GEHA contends that Mrs. Burkey‘s E-1, prepared in June, 1982, was fatally incomplete because it included no bill for medical services rendered by Charity Hospital and no specific information on Carey‘s injury. Although this is correct as far as it goes, the trial court implicitly found, and we agree, that filing a “claim” under the GEHA plan does not invariably require the attachment of medical bills. Further, Mrs. Burkey‘s E-1, taken together with her two letters in December 1982—still within the period for filing a timely GEHA claim for December, 1981 services rendered to Carey—furnished sufficient information concerning the claim to require GEHA to investigаte and inquire. It is both unrealistic and insensitive of GEHA to assert, as it implicitly does, that only a letter-perfect filled-in claim form, complete with exhibits, will satisfy its contractual claim filing procedures. The contract says no such thing. The evidence that Carey had been covered, that he had suffered a serious injury, and that he had just barely become 22 at the time of his hospitalization required GEHA, given the coverage provisions of its plan, to treat Mrs. Burkey‘s communications as a claim.
In this connection, we fully endorse the district court‘s comments:
We are not dealing with technicalities. It seems to me we‘re dealing here with matters of just plain common sense and human decency. Even a brief contact to this lady in response to her letters, if somebody had just read their mail, would have resolved the problem and none of us would [be] in this Court today.
GEHA additionally argues that the Burkeys failed to exhaust administrative remedies by not seeking OPM review of GEHA‘s inaction pursuant to
CONCLUSION
Based on the above discussion, we vacate that portion of the judgment based on Louisiana‘s statutоry penalty law and revise it downward to a total of $44,693 plus pre- and post-judgment interest. This judgment remains subject to the intervention award to DHHR, however.
AFFIRMED in Part, REVERSED in Part.