77 F.

3d 1270
64 USLW 2628, 19 Employee Benefits Cas. 2864

Jerry CANNON, Individually and on behalf of the Estate of

Phyllis Cannon, Deceased, Plaintiff-Appellant,
v.
GROUP HEALTH SERVICE OF OKLAHOMA, INC., d/b/a
Blue Cross &
Blue Shield of Oklahoma; GHS Health Maintenance
Organization, Inc., d/b/a Blue Lincs
HMO, Defendants-Appellees.
No. 94-6451.

United States Court of Appeals,

Tenth Circuit.
Feb. 28, 1996.

Appeal from the United States District Court for the Western District of
Oklahoma, D.C. No. CIV-94-159-A.
Larry Alan Tawwater (Jo L. Slama and Terry T. Wiens with him on the
briefs), McCaffrey & Tawwater, Oklahoma City, Oklahoma, for PlaintiffAppellant.
Mark E. Schmidtke (Page Dobson and J.R. "Randy" Baker, Holloway
Dobson Hudson Bachman Alden Jennings Robertson & Holloway,
Oklahoma City, Oklahoma, with him on the briefs), J.R. Ebenstein
Consultants, Valparaiso, Indiana, for Defendants-Appellees.
Before PORFILIO, and BRORBY, Circuit Judges; and HOLMES, District
Judge.*
JOHN C. PORFILIO, Circuit Judge.

Jerry Cannon filed this action against Group Health Service of Oklahoma, Inc.,
d/b/a Blue Cross & Blue Shield of Oklahoma, and GHS Health Maintenance
Organization, Inc., d/b/a Blue Lincs HMO (insurers) to recover damages for the

death of his wife, Phyllis Cannon. After removal to federal court, the district
court granted summary judgment for the insurers, holding Mr. Cannon's claims
were preempted by the Employee Retirement Income Security Act (ERISA), 29
U.S.C. 1001 to 1461. The district court also denied Mr. Cannon's motion to
amend his complaint, holding his new claims could not withstand a motion to
dismiss. Mr. Cannon now appeals. Although moved by the tragic
circumstances of this case and the seemingly needless loss of life that resulted,
we conclude the law gives us no choice but to affirm.
2

* Phyllis Cannon was diagnosed with acute myeloblastic leukemia in

September of 1991. She was treated with chemotherapy, and her leukemia went
into remission. The insurers paid for this medical treatment. Mrs. Cannon's
treating physician, Dr. Ruben Saez, recommended she undergo an autologous
bone marrow transplant (ABMT), and on August 10, 1992, sought
preauthorization from the insurers.

On August 11, 1992, the insurers denied preauthorization for the ABMT,
contending the treatment was experimental during a first remission of leukemia.
Dr. Saez requested the insurers reconsider his request and submitted medical
literature in an attempt to demonstrate his proposed treatment was not
experimental. Dr. Saez also informed the insurers his request needed urgent
action because it was critical the ABMT be completed prior to any cancer
recurrence.

On August 21, 1992, the insurers again denied preauthorization. The Cannons
persisted in their request for reconsideration, and on September 21, 1992, the
insurers reversed their decision and agreed to authorize ABMT. Unfortunately,
Mrs. Cannon was not notified until October 10, 1992, in a letter dated
September 28, 1992. By that time, her leukemia had returned and she could no
longer beneficially receive ABMT, and none was ever administered. She was
admitted into the hospital on October 12, 1992, and died on November 21,
1992.

Mrs. Cannon was insured through her employer, Hendershot Tool Company.
She chose health insurance coverage through Blue Lincs HMO, one of three
options of Hendershot's health insurance plan. When Mrs. Cannon was first
diagnosed with leukemia in September 1991, the Blue Lincs HMO plan
provided:The following services or procedures are not covered by BlueLincs
HMO: .... (13) Organ transplants other than skin, cornea, bone, bone marrow
and kidney.

However, four months after Mrs. Cannon's diagnosis, effective January 1,

However, four months after Mrs. Cannon's diagnosis, effective January 1,

1992, Blue Lincs HMO issued an "Amendatory Rider" which specified:

7
Preauthorization
will be denied, and benefits will not be provided, for autologous
bone marrow transplants.... Such as: acute leukemia in first remission; ....
8

The insurers claimed the Rider was only a clarification in their policy, not a
change in coverage. These facts are not in dispute.

Initially, on December 30, 1992, Mr. Cannon filed suit in Oklahoma state court
to recover damages for the death of his wife. He alleged her insurers either
negligently or in bad faith refused to authorize the ABMT for seven weeks, at a
time when it offered Mrs. Cannon her only chance of a cure for her leukemia.
The insurers filed a Notice of Removal to federal court asserting Mrs. Cannon's
health insurance plan was an employee welfare benefit plan within the meaning
of ERISA providing exclusive federal jurisdiction.

10

Although Mr. Cannon moved to remand, that motion was denied, and the
district court granted the insurers' subsequent motion for summary judgment.
The district court concluded Mrs. Cannon's group health insurance coverage
was an ERISA plan; and, as such, it preempted all of Mr. Cannon's state
common law and statutory claims. Preemption, the court held, was required
because the state claims related to the ERISA plan and did not fall within
ERISA's savings clause. These conclusions notwithstanding, the district court
gave Mr. Cannon the opportunity to file an amended complaint.

11

Thereafter, the district court denied Mr. Cannon's motion to amend his
complaint because his new claims could not withstand a motion to dismiss,
making amendment futile. Mr. Cannon's amended complaint stated three
claims under ERISA: (1) for benefits under 29 U.S.C. 1132(a)(1)(B); (2) for
equitable relief under 29 U.S.C. 1132(a)(3); and (3) for breach of fiduciary
duty pursuant to 29 U.S.C. 1132(a)(2). Mr. Cannon's complaint also brought
a claim pursuant to the Lanham Trade-Mark Act, 15 U.S.C. 1051 to 1127.

12

In its holding, the court disposed of Mr. Cannon's claims for benefits and
equitable relief under ERISA because Mrs. Cannon never incurred medical
expenses nor received ABMT. The court stated:

13 carefully considered plaintiff's argument but stands unpersuaded that he can sue
[It]
under subsection 1132(a)(1) or (3) to recover anything other than payment for
medical expenses actually incurred, when that is the benefit provided by the plan.
Plaintiff cites no legal authority for the proposition that a person may sue to recover

the value of a service that would have been a benefit of the plan if the plan's terms
had been satisfied.
14

The court also concluded Mr. Cannon's breach of fiduciary duty claim was
unavailing because beneficiaries cannot recover compensatory damages for any
such breach, stating: "A fiduciary is liable under ERISA, if at all, to the plan
and not to the beneficiary." Finally, the court held Mr. Cannon failed to state a
claim under the Lanham Trade-Mark Act. Mr. Cannon has not appealed the
district court's decision on this issue; therefore, we deem it abandoned and do
not address it.

II
15

* Mr. Cannon raises three issues on appeal. First, he argues ERISA does not
preempt state causes of action where ERISA does not provide a remedy. Mr.
Cannon contends ERISA preemption in this context is inconsistent with the
policies behind ERISA, the McCarran-Ferguson Act, and the Tenth
Amendment. Second, Mr. Cannon argues application of ERISA to preempt
state laws where ERISA provides no remedy violates his fundamental right to
access justice. Third, Mr. Cannon maintains the federal common law includes
the concept of equitable estoppel allowing him to assert his claim.

16

This court reviews the district court's interpretation of ERISA de novo. St.
Francis Regional Medical Center v. Blue Cross & Blue Shield of Kan., Inc., 49
F.3d 1460, 1462 (10th Cir.1995); National Elevator Indus., Inc. v. Calhoon, 957
F.2d 1555, 1557 (10th Cir.), cert. denied, 506 U.S. 953, 113 S.Ct. 406, 121
L.Ed.2d 331 (1992). Determining whether a particular state law action is
preempted by ERISA depends on the interrelationship of three ERISA statutory
provisions--the preemption clause, the savings clause, and the deemer clause.
The preemption clause, 29 U.S.C. 1144(a), provides:

17
Except
as provided in subsection (b) of this section [the savings clause], the
provisions of this subchapter and subchapter III of this chapter shall supersede any
and all State laws insofar as they may now or hereafter relate to any employee
benefit plan....
18

The savings clause, 29 U.S.C. 1144(b)(2)(A), reads:

19
Except
as provided in subparagraph (B) [the deemer clause], nothing in this
subchapter shall be construed to exempt or relieve any person from any law of any
State which regulates insurance, banking, or securities.

The deemer clause, 29 U.S.C. 1144(b)(2)(B), states:

20
Neither an employee benefit plan ... nor any trust established under such a plan, shall
21
be deemed to be an insurance company or other insurer, bank, trust company, or
investment company or to be engaged in the business of insurance or banking for
purposes of any law of any State purporting to regulate insurance companies,
insurance contracts, banks, trust companies, or investment companies.
22

The interpretation and analysis of these three provisions has been a recurrent
theme in both the Supreme Court and this court.

23

The seminal Supreme Court ERISA preemption case is Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). In Pilot Life, the
Court addressed the appropriate inquiry for determining whether a particular
state law claim was preempted under ERISA. A court must analyze whether the
state statutory or common law actions asserted in the plaintiff's complaint "
'relate to' an employee benefit plan and therefore fall under ERISA's express
pre-emption clause." Id. at 47, 107 S.Ct. at 1552. The Court noted the
preemption clause had an "expansive sweep," and must be given its "broad
common-sense meaning." Id.
More recently, the Court has elaborated:

24 pre-emption clause is conspicuous for its breadth. Its deliberately expansive

The
language was designed to establish pension plan regulation as exclusively a federal
concern. The key to 514(a) is found in the words relate to. Congress used those
words in their broad sense, rejecting more limited pre-emption language that would
have made the clause applicable only to state laws relating to specific subjects
covered by ERISA....
25

A law relates to an employee benefit plan, in the normal sense of the phrase, if
it has a connection with or reference to such a plan. Under this broad commonsense meaning, a state law may relate to a benefit plan, and thereby be preempted, even if the law is not specifically designed to affect such plans, or the
effect is only indirect. Pre-emption is also not precluded simply because a state
law is consistent with ERISA's substantive requirements.

26

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138-39, 111 S.Ct. 478, 48283, 112 L.Ed.2d 474 (1990) (citations and quotation marks omitted). A
common law cause of action which "relates to" ERISA is preempted unless it
falls within one of the exceptions to 514(a).

27

Mr. Cannon's initial claims were for breach of contract or a breach of fiduciary
duty cause of action related to the improper processing of Mrs. Cannon's benefit
claim for ABMT. Both the Supreme Court and this court have consistently held
these types of claims are preempted by ERISA. See, e.g., Pilot Life, 481 U.S. at
57, 107 S.Ct. at 1558 (common law tort and contract actions asserting improper
processing of a claim for benefits preempted by ERISA); Metropolitan Life Ins.
Co. v. Taylor, 481 U.S. 58, 62-3, 107 S.Ct. 1542, 1545-46, 95 L.Ed.2d 55
(1987) (common law tort and contract claims are preempted); Pitman v. Blue
Cross & Blue Shield of Okla., 24 F.3d 118, 121-22 (10th Cir.1994) (tortious
breach of contract claim preempted); Kelso v. General American Life Ins. Co.,
967 F.2d 388, 389-91 (10th Cir.1992) (common law breach of contract action
preempted). But see Mackey v. Lanier Collection Agency & Serv., 486 U.S.
825, 841, 108 S.Ct. 2182, 2191, 100 L.Ed.2d 836 (1988) (general Georgia
garnishment statute not preempted by ERISA; but specific provision referring
to ERISA is preempted); Guidry v. Sheet Metal Workers Nat. Pension Fund, 39
F.3d 1078, 1083-86 (10th Cir.1994) (en banc) (general Colorado garnishment
statute not preempted by ERISA), cert. denied, --- U.S. ----, 115 S.Ct. 1691, 131
L.Ed.2d 556 (1995).

28

Mr. Cannon does not really dispute the fact his claims would be preempted
based on these precedents. Instead, he argues a question of first impression
exists whether ERISA may preempt state common law claims if no alternative
remedy is possible under ERISA. The district court concluded Mr. Cannon had
no available remedy under ERISA, and we agree. However, even assuming Mr.
Cannon did not have any remedy pursuant to ERISA, we do not believe this fact
has any bearing on our preemption analysis.

29

Mr. Cannon is correct the Supreme Court has not addressed this precise issue.
He has skillfully crafted an argument, based on a variety of different cases, that
by implication preemption only is appropriate when ERISA provides a remedy.
However, none of the cases he cites stand for the broad proposition an
exception to ERISA's express preemption clause exists when ERISA provides
no remedy.

30

Mr. Cannon is effectively asking us to rewrite ERISA to craft such an

exception. Although there are sound reasons why such an exception is
appropriate, the Congress, and not this court, is the appropriate forum for such
policy arguments.

31

While the Supreme Court has not addressed this issue, we have. In dicta, we
have noted the unavailability of a remedy under ERISA is not germane to
preemption analysis.

32

Finally, plaintiffs suggest that a definition of "participant" which excludes them

will leave them without a remedy, inasmuch as their state law claims were held
preempted by ERISA. Preemption is not at issue in this case, and we do not
address it. However, we note the fact that a state law claim may be preempted
does not necessarily mandate that there be an ERISA remedy. See Corcoran v.
United HealthCare, Inc., 965 F.2d 1321, 1333 (5th Cir.) ("While we are not
unmindful of the fact that our interpretation of the preemption clause leaves a
gap in remedies within a statute intended to protect participants in employee
benefit plans, the lack of an ERISA remedy does not affect a pre-emption
analysis."), cert. denied, 506 U.S. 1033, 113 S.Ct. 812, 121 L.Ed.2d 684
(1992); Cromwell v. Equicor HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991)
("Nor is it relevant to an analysis of the scope of federal preemption that
appellants may be left without a remedy."), cert. denied, 505 U.S. 1233, 113
S.Ct. 2, 120 L.Ed.2d 931 (1992); Hospice of Metro Denver, Inc. v. Group
Health Ins., 944 F.2d 752, 755 (10th Cir.1991) ("We are aware that preemption
normally is not dependent on the availability of ERISA remedies.").

33

Raymond v. Mobil Oil Corp., 983 F.2d 1528, 1537-38 (10th Cir.), cert. denied,
--- U.S. ----, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993) (footnote omitted).

34

Further, the Supreme Court has clarified Congress intended the civil
enforcement mechanisms of ERISA to be exclusive, and this legislative policy
choice must be respected. In Pilot Life, the Court explained:

35

In sum, the detailed provisions of 502(a) set forth a comprehensive civil

enforcement scheme that represents a careful balancing of the need for prompt
and fair claims settlement procedures against the public interest in encouraging
the formation of employee benefit plans. The policy choices reflected in the
inclusion of certain remedies and the exclusion of others under the federal
scheme would be completely undermined if ERISA-plan participants and
beneficiaries were free to obtain remedies under state law that Congress
rejected in ERISA.

36

Pilot Life, 481 U.S. at 54, 107 S.Ct. at 1556. We see no reason why this
calculation should differ because of the unavailability of ERISA remedies. Mr.
Cannon has failed to explain why one class of potential plaintiffs--those without
available ERISA remedies--should be entitled to state common law and
statutory remedies which would remain unavailable to another class of
plaintiffs--those with alternative ERISA remedies. The proper focus for
preemption analysis should be on the nature of the claim for relief, not on
whether a particular plaintiff has a potential remedy under ERISA.

B
37

Next, Mr. Cannon crafts an argument out of a creative reading of the deemer
and savings clauses. He suggests his claims fall within the savings clause
because they regulate insurance. There are numerous problems with this
analysis, however.

38

We have found no case which stands for the proposition an insurance company
which contracts through an employer to supply insurance to an employee
benefit plan should be deemed an insurance company. The savings clause
indicates Congress sought to allow states to regulate the business of insurance.
In turn, the deemer clause reveals Congress' fear the states would overzealously
deem employee benefit plans as insurance for the purpose of regulating them.
Mr. Cannon's argument is in direct contradiction to this provision because there
is no doubt Mrs. Cannon's plan was an employee benefit plan within the
meaning of ERISA.

39

Mr. Cannon's broad policy argument related to the McCarran-Ferguson Act is

equally inapposite. In Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.
724, 742-44, 105 S.Ct. 2380, 2390-91, 85 L.Ed.2d 728 (1985), the Court
adopted the definition of "business of insurance" from this Act to help
determine whether a state law falls within the savings clause. Unfortunately for
Mr. Cannon, his claims arise from generally applicable common law principles
which do not specifically regulate insurance within the meaning of the savings
clause. FMC Corp. v. Holliday, 498 U.S. 52, 57-8, 111 S.Ct. 403, 407, 112
L.Ed.2d 356 (1990). Therefore, even if Mrs. Cannon's health plan was
considered "insurance," the savings clause would not save Mr. Cannon's claims
from the application of the preemption clause.

C
40

Finally, Mr. Cannon argues the Tenth Amendment supports his theory no
remedy equals no preemption. However, he has failed to indicate how the
Tenth Amendment precludes Congress from exercising its Commerce Clause
authority to enact ERISA. ERISA substantially affects commerce to a greater
degree than what has recently concerned the Supreme Court in this area,
regardless of the Tenth Amendment. See United States v. Lopez, --- U.S. ----,
115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (holding Gun Free School Zones Act
of 1990, 18 U.S.C. 922(q)(1)(A), exceeds Congress' Commerce Clause
authority). Mr. Cannon's broad policy arguments concerning the reserved
powers of the states are unavailing to his cause. We conclude the district court
ruled correctly on this issue.

III
41

Mr. Cannon argues, if ERISA is applied to preempt Oklahoma law, he has

suffered an unconstitutional denial of his right to access justice. Mr. Cannon
locates this fundamental right in several sources. First, in the Fifth
Amendment's Due Process Clause and the Ninth Amendment. He argues one of
the Ninth Amendment's rights reserved to the people is the right to access
courts for redress. Mr. Cannon cites the Magna Carta in support of this
proposition. "To none will we sell, to none will we deny, to none will we delay
right to justice." Magna Carta, Art. 40. Second, he finds such a right in two
cases. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977);
Doe v. Puget Sound Blood Center, 117 Wash.2d 772, 819 P.2d 370 (1991)
("That justice which is to be administered openly is not an abstract theory of
constitutional law, but rather is the bedrock foundation upon which rest all the
people's rights and obligations."). Third, he argues such a right is implicit in
numerous Supreme Court cases which determined federal regulatory law did
not preempt state torts law. Mr. Cannon argues in these cases the Court was
concerned with whether preemption would deprive a party of a remedy.

42

Although impressed with the inventiveness of this argument, we believe it is

without substance. Simply put, a fundamental right to access justice has yet to
be defined. The Supreme Court has carefully limited those rights considered
part of the substantive component of liberty within the meaning of the Due
Process Clauses of the Fifth and Fourteenth Amendments. See generally
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 845-53, 112
S.Ct. 2791, 2804-08, 120 L.Ed.2d 674 (1992) (discussing a woman's right to
terminate her pregnancy as a fundamental right); Cruzan v. Director, Missouri
Dep't of Health, 497 U.S. 261, 278-85, 110 S.Ct. 2841, 2851-55, 111 L.Ed.2d
224 (1990) (discussing the right to die as a fundamental right); Bowers v.
Hardwick, 478 U.S. 186, 190-96, 106 S.Ct. 2841, 2843-46, 92 L.Ed.2d 140
(1986) (discussing the right of homosexuals to engage in consensual sodomy as
not a fundamental right).

43

Neither case Mr. Cannon cites supports this fundamental right to access justice.
First, in Bounds, the Court held "the fundamental right of access to the courts
requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law." 430 U.S. at 828, 97 S.Ct.
at 1498. The fundamental right Mr. Cannon seeks is much broader than the
Court's holding in Bounds. Second, in Doe, the Washington Supreme Court
addressed whether the recipient of a blood transfusion contaminated with AIDS
could compel the discovery of the name of the blood donor from the Blood

Center. The court affirmed the trial court's conclusion the donor's name could
be discovered. Doe, 819 P.2d at 373. We fail to see the relevance of Doe to Mr.
Cannon's argument. Finally, the other cases involving federal preemption cited
by Mr. Cannon are also inapposite.
IV
44

Last, Mr. Cannon argues the concept of equitable estoppel should apply here.
He asserts federal courts have a duty to develop federal common law to
supplement ERISA, and this court should look to state law to develop this
federal common law. Mr. Cannon asserts the court in National Companies
Health Benefit Plan v. St. Joseph's Hosp. of Atlanta, 929 F.2d 1558 (11th
Cir.1991), adopted the principle of equitable estoppel in ERISA cases. He
urges equitable estoppel principles should apply here to prevent the insurers
from benefitting from their unreasonable conduct.

45

Although Mr. Cannon relies upon National Companies for the general
proposition a federal common law of equitable estoppel should be applied in his
case, the Eleventh Circuit concluded equitable estoppel could apply only under
certain circumstances, explaining:

46 Nachwalter v. Christie, 805 F.2d 956, 960 (11th Cir.1986), this court held that the
In
federal common-law claim of equitable estoppel is not available to plaintiffs in cases
involving oral amendments to or modifications of clear terms of employee benefit
plans governed by ERISA....
47

In Kane [v. Aetna Life Ins., 893 F.2d 1283, 1283, cert. denied, 498 U.S. 890,
111 S.Ct. 232, 112 L.Ed.2d 192 (1990) ], this court further clarified the scope
of the holding in Nachwalter, "differentiat[ing] between oral amendments or
modifications to a plan and oral interpretations of a plan." The court held that
the federal common-law claim of equitable estoppel may be applied when an
employee relies, to his detriment, on an interpretation of an ambiguous
provision in a plan by a representative of that plan.... The rationale of Kane is
equally applicable to informal written interpretations of an ERISA plan.

48

Id. at 1571-72 (citation omitted). The court applied its equitable estoppel rule to
a written interpretation of an ERISA continuing coverage provision. Id. at 1572.
In National Companies, the Eleventh Circuit identified five elements of a
common-law claim of equitable estoppel: (1) the party to be estopped
misrepresented material facts; (2) the party to be estopped was aware of the
true facts; (3) the party to be estopped intended that the misrepresentation be
acted on or had reason to believe the party asserting the estoppel would rely on

it; (4) the party asserting the estoppel did not know, nor should it have known,
the true facts; and (5) the party asserting the estoppel reasonably and
detrimentally relied on the misrepresentation. Id. (citing Heckler v. Community
Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 59, 104 S.Ct. 2218, 2223, 81
L.Ed.2d 42 (1984) and Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1217
(6th Cir.), cert. denied, 484 U.S. 820, 108 S.Ct. 77, 98 L.Ed.2d 40 (1987)).
49

The major distinction here which negates equitable estoppel is the absence of
misrepresentation of any term of the plan triggering Mrs. Cannon's reasonable
detrimental reliance. The controversy surrounding whether the plan would
authorize ABMT had nothing to do with any misrepresentation; it simply was a
disagreement over the proper interpretation of the terms of the plan. Although it
is arguable whether the insurers improperly interpreted the plan,
misinterpretation does not amount to the misrepresentation necessary to support
an equitable estoppel claim.

50

This court has neither adopted nor rejected an equitable estoppel rule in the
ERISA context. In Averhart v. U.S. West Management Pension Plan, 46 F.3d
1480 (10th Cir.1994), we effectively avoided a decision of this issue by not
explicitly saying an equitable estoppel theory was viable, but concluding the
plaintiffs failed to state such a claim. We explained:

51

We hold that, in any event, the plaintiffs have not shown any viable basis for
the estoppel theory they advance--that there were representations made
interpreting ambiguous Plan terms. Courts that have recognized estoppel claims
in these circumstances have done so only where "the terms of the plan are
ambiguous" and "the employer['s] communications constituted an interpretation
of that ambiguity."

52

Id. at 1486 (citations omitted). Because Mr. Cannon has failed to state an
equitable estoppel claim here, we do not believe this is a case in which the
availability of such a claim should be decided.

53

AFFIRMED.

Honorable Sven Erik Holmes, United States District Court for the Northern
District of Oklahoma, sitting by designation