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. e du/thir dc ir c uit_1996/27UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-5067

JEFFREY A. MINTS

v.

EDUCATIONAL TESTING SERVICE,

Appellant

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 95-03446)

Submitted under Third Circuit LAR 34.1( a) October 10, 1996

BEFORE: MANSMANN and GREENBERG, Circuit J udges, and HILLMAN, District Judge*

(Filed: November 14, 1996)

William S. Greenber g B. John Pendleton, Jr. Mary Ann Mullaney McCarter & English 100 Mulberry Street Four Gateway Center Newark, NJ 07101-0 652

Attorneys f or Appellant

Jeffrey A. Mints 60 Montague Avenue Ewing, NJ 08628

Appellee pr o se

*Honorable Douglas W. Hillman, Senior Judge of the United States District Court for the Western District of Michiga n, sitting by designation.OPINION OF THE COURT

GREENBERG, Circuit Judge. Educational Testing Service ("ETS") appea ls from an order entered January 5, 1996, awarding appellee Je ffrey A. Mints $8,436.78 in attorney's fees and costs pursuant to 28 U.S.C. § 1447(c) ("section 1447(c)"). Mints initiated this action in the Superior Court of New Jersey, but ETS removed the c ase to the

district court under 28 U.S.C. § 1441(b). ETS asse rted that the district court had removal jurisdiction because, in its view, the case arose under the laws of the United States, in particular the Employee Retirement Income Security Act of 1974 ("E RISA"), 29 U.S.C. § 1001, et seq. Mints subsequently moved in the district court to remand the case to the Superior Court. Th e district court granted the motion and then denied ETS's moti on for reconsideration. Thereafter, Mints made a motion f or attorney's fees and costs which the district court granted. E TS then appealed the order awarding the fees and costs. Th is appeal raises procedural questions as to the time when a c ourt may enter an order requiring payment of attorney's fees and c osts when it remands a case to a state court, as well as substan tive questions regarding the standard governing the consideration of applications for such fees and costs.

I. FACTUAL AND PROCEDURAL HISTORY Mints's complaint in the Superior Court i ncluded six
counts which we describe in detail. In the first c ount, he alleged that ETS terminated his employment on May 1 7, 1993, "by reason of his age" and thus violated the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. ( West 1993). He also alleged that the discrimination con tinued when ETS subsequently refused to rehire him. He claimed that when ETS notified him that his employment was terminated, he was "within two years of vesting his eligibility for early reti rement, including, but not limited to, pension, medical and other benefits." He asserted that he suffered pain, emot ional distress, and humiliation as a result of ETS's prac tices and that
he "has suffered and continues to suffer substantia l losses in earnings, job experience, retirement benefits, medi cal benefits and other employee benefits that he would have rece ived" but for
his termination or otherwise would receive in the f uture. Mints sought reinstatement, compensatory and punitive dam ages, and attorney's fees pursuant to N.J. Stat. Ann. § 10:5- 27.1 (West 1993). Significantly, the count did not indicate t hat ETS'sactions violated the Age Discrimination in Employme nt Act, 29

U.S.C. § 621, et seq., nor did it allege that ETS's actions violated ERISA, or even that ETS discharged him so that he would not obtain rights vested under ERISA. In the second count, Mints claimed that E TS discharged him by reason of his sex and that its actions const ituted unlawful sex discrimination under the New Jersey La w Against Discrimination. He alleged that he suffered the sa me losses from sex discrimination as he suffered from age discrimi nation. Significantly, Mints did not allege that ETS's acti on violated Title VII of the Civil Rights Act of 1964, 42 U.S.C . § 2000e, et seq., or ERISA, or that it discharged him so that he would n ot obtain rights vested under ERISA. In the third cou nt, Mints charged that ETS terminated his employment because he suffered a disability. He brought this count under the New Je rsey Law Against Discrimination and stated that he suffered the same losses as he suffered from the age discrimination. Once again, Mints did not bring his action under the federal st atute paralleling the state discrimination claim, the Ame ricans with Disabilities Act, 42 U.S.C. § 12101, et seq., or un der ERISA, and he did not assert that ETS discharged him so that h e would not obtain rights vested under ERISA. In Mints's fourth, fifth, and sixth count s he asserted common law claims for breach of contract, wrongful discharge, and defamation. Mints alleged in the breach of contrac t and wrongful discharge counts that he suffered the same losses a s he set forth in the three discrimination counts, but in the defa mation count he set forth only general losses and did not assert that he suffered the employment related losses he claimed i n the other counts. Mints did not allege that he had a right t o recovery under ERISA or any other federal law in any of thes e three

counts. Mints's omission of federal statutory cau ses of action under the ADEA, Title VII, and the ADA clearly was intentional, for at the time he filed his Superior Court action he also filed
an action in the district court which tracks his st ate case but
adds these three federal statutes as bases for reli ef. Thus, he made a strategic decision to file parallel actions in the federal and state courts, but to limit his state action to claims founded
under state law. On July 13, 1995, ETS filed a timely noti ce of removal of the Superior Court action to the district court. In the notice, ETS quoted the portion of the Superior Cour t complaint in which Mints alleged that ETS discharged him "within two years of vesting his eligibility for early retirement, inclu ding, but not limited to, pension, medical and other benefits." In addition,
ETS set forth in the notice of removal that Mints w as seeking benefits pursuant to a group employee welfare benef it plan. In view of these allegations, ETS asserted that the di strict court had jurisdiction under 28 U.S.C. § 1331 and ERISA, and it cited Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478 (1990), and Metropolitan Life Ins. Co. v. Taylor, 4 81 U.S. 58, 107 S.Ct. 1542 (1987), in support of its position.
Mints then moved in the district court to remand thecase to the Superior Court. On September 19, 1995, the district

court granted the motion to remand in an order and accompanying opinion. In its opinion, the district court pointe d out that under 28 U.S.C. § 1441 a defendant could remove an action started
in a state court to a federal district court if the action is

founded under federal law. The court noted that or dinarily a district court has removal jurisdiction only if the federal cause of action appears on the face of the plaintiff's we ll-pleaded complaint. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12, 103 S.Ct. 2841, 2 846-47 (1983). Thus, the plaintiff is the master of the complaint and "may, by eschewing claims based on federal law, choose to ha ve the cause heard in state court." Caterpillar Inc. v. William s, 482 U.S. 386, 399, 107 S.Ct. 2425, 2433 (1987). The district court indicated, however, th at in Metropolitan Life Ins. Co. v. Taylor, which ETS cit ed in its notice of removal, the Supreme Court recognized tha t "Congress may so completely pre-empt a particular area that a ny civil complaint raising this select group of claims is ne cessarily federal in character." 481 U.S. at 63-64, 107 S.Ct . at 1546.
The district court then indicated that ERISA would preempt an action completely only if the defendant established "that the underlying state action involves the recovery of be nefits due under the terms of a plan, the enforcement of right s under a plan or the clarification of the right to future benefit s under the plan." Mints v. Educational Testing Serv., No. 95- 3446, slip op. at 6 (Sept. 19, 1995). See Metropolitan v. Taylor, 481 U.S. at 66, 107 S.Ct. at 1547-48; 29 U.S.C. § 1132(a)(1)(B)

. The court noted that ETS claimed that the case was removable because the complaint called into questio n Mints's rights under ERISA. The court said that while Cong ress under ERISA has preempted state law claims "related to" e mployee pension and benefit plans, 29 U.S.C. § 1144(a), the fact that a plaintiff's claims might be deemed preempted does n ot establish that they are removable. See Dukes v. U.S. Healthc are, Inc., 57 F.3d 350, 355 (3d Cir.), cert. denied, 116 S.Ct. 35 0 (1995); Warner v. Ford Motor Co., 46 F.3d 531, 535 (6th Cir . 1995). Here the court found that Mints's claim did not trigger federal jurisdiction. Thus, it remanded the case to the st ate court where ETS could advance any preemption issue. On September 19, 1995, the clerk of the d istrict court mailed a certified copy of the remand order to the clerk of the Superior Court. On September 29, 1995, ETS moved f or reconsideration. On November 9, 1995, the district court entered an order and accompanying opinion denying the motio n for reconsideration. Notwithstanding Trans Penn Wax Co rp. v. McCandless, 50 F.3d 217, 225 (3d Cir. 1995), and Hu nt v. Acromed Corp., 961 F.2d 1079, 1081-82 (3d Cir. 1992), which indicate that once the district court mails a certified copy of t he remand
order to the state court the federal court is dives ted of jurisdiction, the district court denied the motion for
reconsideration on the merits. On December 8, 1995, Mints moved for an a ward of attorney's fees and costs to compensate him for mov ing for theremand and opposing ETS's motion for reconsideratio n. On January

5, 1996, the district court entered an order and ac companying opinion granting $8,437.68 in fees and costs. In i ts opinion, the court pointed out that ETS argued that the cour t lacked jurisdiction to grant the fees and costs and that E TS argued that fees and costs should not be assessed against it as it did not act in bad faith in removing the action. The distr ict court ruled that it did have jurisdiction inasmuch as the Supreme Court in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 1 10 S.Ct. 2447 (1990), held that a court could award attorney's fe es under Fed. R. Civ. P. 11 after a plaintiff voluntarily dismiss ed a suit because "[i]t is well established that a federal co urt may
consider collateral issues after an action is no lo nger pending." 496 U.S. at 395, 110 S.Ct. at 2455. The district c ourt pointed out that courts have applied this jurisdictional ap proach under section 1447(c) which provides that "[a]n order rem anding the case may require payment of just costs and any actu al expenses, including attorney fees, incurred as a result of th e removal." See Miranti v. Lee, 3 F.3d 925, 927 (5th Cir. 1993) ; Moore v. Permanente Medical Group, Inc., 981 F.2d 443, 445 ( 9th Cir. 1992).
The district court next considered the st andard governing whether attorney's fees and costs should be assessed against a defendant who has removed a case from the state to the
federal court when the court remands the case. The court pointed out that prior to its amendment in 1988, section 14 47(c)
authorized the award of fees when a case was "remov ed improvidently." Under that standard there was auth ority that a court could assess fees only if the defendant acted in bad faith in removing the action. See Schmitt v. Insurance C o. of N.A., 845 F.2d 1546, 1552 (9th Cir. 1988). The court ind icated that the basis for awarding the plaintiff fees when a ca se is remanded now may be broader, as the court has broad discreti on to award fees since the "removed improvidently" language has been removed from section 1447(c). See Gotro v. R & B Realty Gr oup, 69 F.3d 1485, 1487 (9th Cir. 1995); Morgan Guar. Trust Co. v. Republic of Palau, 971 F.2d 917, 923-24 (2d Cir. 1992). The co urt nevertheless indicated that the propriety of the re moval still may be a consideration in a determination of whethe r to require the party removing the action to pay costs and fees . See Miranti v. Lee, 3 F.3d at 928. The court, however, did not set forth definitively the basis for awarding fees, as it hel d that even under the pre-1988 standard, ETS improvidently remo ved the case. Thus, it entered the order for $8,437.68 in fees an d costs. ETS then appealed.

II. DISCUSSION ETS makes both procedural and substantive arguments to support a reversal. Citing Trans Penn Wax v. McCan dless, 50 F.3d at 225, and Hunt v. Acromed, 961 F.2d at 1081-82, E TS initially makes the procedural argument that the district cou rt lost jurisdiction when the district court clerk sent the certified copy of the order of remand to the clerk of the Sup erior Court of New Jersey. It then points out that section 1447(c ) providesthat an order remanding a case "may require payment of just costs

and any actual expenses, including attorney fees, i ncurred as a
result of the removal." It notes that under Fed. R . Civ. P. 54(d)(2)(B), a motion for attorney's fees must be f iled and served no later than 14 days after the entry of jud gment "[u]nless otherwise provided by statute or order of the court." In its view, this case comes within the "otherwise provided by statute" provision because section 1447(c) provides that the order of remand may require the payment of attorney 's fees. Thus, ETS argues that any order for payment of atto rney's fees
had to be entered in the order of remand and not th ereafter. ETS also points out that even if section 1447(c) permit ted a motion for attorney's fees to be filed after the entry of the order of remand, Mints's application was late under Rule 54( d)(2)(B). ETS makes the substantive argument that t he court abused its discretion in awarding fees. This argum ent has three component parts: (1) ETS properly removed the case ; (2) the case was not obviously nonremovable; (3) ETS did not act in bad faith in removing the case. Of course, ETS does not seek to reverse the order remanding the case, as under 28 U.S.C. § 1447(d) ("section 1447(d)") we do not have jurisdiction to review that
order because the district court remanded the case for lack of subject matter jurisdiction, a cause for remand wit hin section 1447(c). We address ETS's procedural claims first, exercising plenary review, as these claims raise only issues o f law. We agree with the district court that it did not lose jurisdiction
to award fees and costs when the clerk of the distr ict court mailed a certified copy of the order of remand to t he clerk of the Superior Court. While there is no doubt that u nder Hunt v.Acromed Corp., 961 F.2d at 1081-82, the district court shou ld not
have reconsidered the order of remand after the cle rk of the district court sent the certified copy of the order to the clerk of the Superior Court, the principles underlying ou r opinion in that case are not applicable with respect to the fe e application. In Trans Penn Wax v. McCandless, 50 F.3d at 225, we explained that the Hunt v. Acromed holding was predicated in part on "the need to establish a determinable jurisdictional eve nt after which
the state court can exercise control over the case without fear
of further federal interference." If the district court entertains a post-remand application for fees and c osts, it does not interfere with or even affect the proceedings i n the state court. Thus, we see no reason why a district court cannot entertain a request for attorney's fees and costs i n a remanded case merely because the clerk of the district court has mailed a certified copy of the order of remand to the state court. Of course, a holding that the divesting o f jurisdiction by the mailing of a certified copy of the order of remand does not preclude the award of attorney's fees and costs is consistent with Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, which held that a district court could impose sanctions under Fed. R. Civ. P. 11 after a plaintiff voluntar ily dismissed an action. While we recognize that Cooter & Gell i s distinguishable because it did not implicate the sp ecialjurisdictional problems presented when a case is re manded to a

state court, and because it involved an application under Rule 11 rather than under section 1447(c), the case still g uides us. As the district court noted, other courts have followe d Cooter & Gell and have allowed an award of attorney's fees u nder 28 U.S.C. § 1447(c) after a case has been remanded. See, e.g ., Moore v. Permanente, 981 F.2d at 445. We are convinced that those courts are correct, as a post-remand application for fees and costs is
collateral to the decision to remand and cannot aff ect the proceedings in the state court. Even though Hunt v. Acromed does not bar the postremand award of fees and costs, there understandabl y is support for ETS's argument that an award of attorney's fees under section 1447(c) must be included in the body of the order i tself, since section 1447(c) states that an order remanding a ca se "may require payment of just costs and any actual expens es, including attorney's fees, incurred as a result of the remova l." SeeUnited Broadcasting Corp. v. Miami Tele-Communications, In c., 140 F.R.D. 12, 14 (S.D. Fla. 1991) ("This court is of t he opinion that the plain language of the statute controls and clearly provides that if the court is going to award costs and expenses, including attorneys' fees pursuant to 28 U.S.C. § 1 447(c), it must be taken care of in the order of remand."); Ca sal v. Casal, 132 F.R.D. 146, 150 (D.N.J. 1989) ("Section 1447(c) is inappropriate because the statute states only that the remand order of the Court may require the costs enumerated in the statute. The moving parties should have moved for costs under this provision at the time of remand."). This argu ment, predicated on the language of section 1447(c), is d istinct from ETS's contention that the district court lost juris diction when
the clerk of the district court mailed a certified copy of the remand order to the Superior Court. Other courts, however, do not regard sect ion 1447(c) itself as a bar to a post-remand award of fees and costs. In Moore v. Permanente, 981 F.2d 443, the court of app eals affirmed an order assessing attorney's fees against a defend ant after the court remanded the matter. In the course of its op inion, the Moore court explained that: "[w]hile we have not a ddressed the specific question whether a district court retains jurisdiction to award costs and fees pursuant to section 1447(c) after remand, it is clear that an award of attorney's fees is a c ollateral matter over which a court normally retains jurisdic tion even after being divested of jurisdiction on the merits. " Id. at 445. In our view, section 1447(c), by providin g that a court "may require payment" of costs and attorney's fees incurred as a result of the removal does not imply that the court cannot enter an order for payment of such costs and fees at some later time. In this regard, we observe that section 1447(c) pro vides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, t he case shall be remanded." The duty of the district court to re mand the case for lack of subject matter jurisdiction is not depe ndent on either party moving for a remand. Accordingly, whi le undoubtedly the appropriate practice for a district court which proposesremanding a removed matter for lack of subject matt er

jurisdiction would be to invite the parties to subm it their views before it enters the order for remand, particularly inasmuch as the court probably will not be able to reconsider i ts order after the clerk sends a copy of it to the state court, se e Hunt v. Acromed, 961 F.2d at 1082 n.6, still it is possible that the district court might remand the case without seekin g the parties' views. In fact, that is what happened in Hunt v. A cromed Corp., 961 F.2d 1079, where the court remanded the case on its own motion without seeking the views of the parties.
If the district court remanded the matter on its own motion, a conclusion that the order for remand must include any provision for costs and attorney's fees would depri ve the plaintiff of the opportunity to seek to recover its fees and costs. While we recognize that in some cases those fees and costs would be limited to proceedings with respect to a motion to remand, so that the plaintiff would not have any co sts and fees
to recover in a case that the court remanded on its own motion, section 1447(c) does not provide that the court may require the defendant to pay only the plaintiff's costs and att orney's fees incurred in a motion to remand. Rather, section 14 47(c) provides that the court may require payment of the costs and fees
"incurred as a result of the removal." Such costs and fees could
include items distinct from those incurred on a mot ion to remand. Accordingly, though we acknowledge that sometimes l anguage such as "may require" can be deemed mandatory, we find t hat this is
not such a situation. In fact, we think that Congress used the "may require" language not to direct that an order for payment of costs and fees must be made, if at all, in the order of reman d, but to make
clear that the district court has discretion whethe r to order such payment. Our conclusion is supported by the c ourts' recognition that when remanding a case they are not required to order the payment of costs and fees. See, e.g., Mo ore v. Permanente, 981 F.2d at 447. So understood the "ma y require" language in section 1447(c) is not temporal and doe s not govern when a motion for costs and attorney's fees can be made or when an order for the payment of costs and fees can be e ntered. We realize that it might be argued that b y not limiting entry of an order for fees and costs to the time th e order for remand is entered we would leave an open-ended peri od for a party, usually the plaintiff, to move for fees and costs after a remand. Such a fear, however, would not be well gr ounded. Fed. R. Civ. P. 54(d)(2)(B) directs that unless otherwis e provided by statute or order of the court, a motion for attorne y's fees and related nontaxable expenses must be filed and serve d "not later than 14 days after entry of judgment." We believe that an order of remand would be regarded as a judgment under Rul e 54(d)(2)(B), even though it is not appealable, since the entry o f the order
would terminate the matter in the district court. Thus, although Fed. R. Civ. P. 54(a) provides that a judgment "inc ludes a decree or any order from which an appeal lies" it does not preclude an order of remand from being regarded as a judgment w ithin Rule 54(d)(2)(B) because a remand order, though not appe alable, hasthe same indicia of finality as an appealable order . Therefore,

we do not read "includes" in Rule 54(a) as in all c ases limiting a judgment to an appealable order. ETS also argues that if section 1447(c) w as not applicable in determining when Mints had to make hi s fee application, then Rule 54(d)(2)(B) was applicable, and under that
rule Mints's motion for fees and costs was late. T his argument certainly seems to be correct because Mints filed h is motion on December 8, 1995, which was more than 14 days after November 9, 1995, when the district court entered its order den ying reconsideration of its order of remand. Thus, even if we measure the 14 days from the denial of the motion for recon sideration rather than from the entry of the order of remand, Mints's motion was untimely. Mints responds that ETS did not argue in the district court that Mints's motion was untimely under Rule 5 4(d)(2)(B).
He thus contends that we should not entertain the a rgument, as ETS is raising the issue on appeal for the first ti me. We have
examined the brief ETS filed in the district court on Mints's
motion and have concluded that Mints's assertion is accurate. ETS did not cite Rule 54(d)(2)(B) in that brief. R ather, in the district court brief it made the procedural argumen ts that (1) section 1447(c) requires that an order for costs an d attorney's fees must be included in the order of remand and (2 ) that once the clerk sent the certified copy of the order of r emand to the Superior Court the district court lost jurisdiction

. We see no reason to entertain ETS's Rule 54(d)(2)(B) argument on appeal. Under Fed. R. Civ. P. 6(b)(2), if ETS had raised the Rule 54(d)(2)(B) contention in the distr ict court,
Mints could have asked the district court to extend the time for him to file and serve his motion. While Rule 6(b)( 2) does list
certain rules with time constraints that the court ordinarily cannot extend, Rule 54(d)(2)(B) is not one of them. Thus, if we entertained ETS's argument now that the motion was untimely, the most relief we reasonably could grant would be a re mand for the
district court to consider whether to extend the ti me for Mints
to file the motion for fees and costs so that the D ecember 8, 1995 motion would be deemed timely. At this late d ate, after the protracted proceedings in the district court and on this appeal,
we will not remand the matter for reconsideration. Rather, inasmuch as the time constraint provision in Rule 5 4(d)(2)(B) is not jurisdictional, as the district court can exten d the time for motions under that rule, we adhere to our usual pra ctice of not entertaining arguments initially raised on appeal. See United Parcel Serv., Inc. v. United Bhd. of Teamsters, etc ., 55 F.3d 138, 140 n.5 (3d Cir. 1995). We now address the merits of ETS's appeal . We review
the award of counsel fees on an abuse of discretion standard. See Deisler v. McCormack Aggregates Co., 54 F.3d 10 74, 1087 (3d Cir. 1995); Moore v. Permanente, 981 F.2d at 447 (a buse of
discretion standard used in fee award under section 1447(c)). The district court in its opinion granting fees and costs indicated that prior to 1988, section 1447(c) provi ded that the court could order payment of costs and fees on rema nding a caseif the party against whom the costs and fees are so ught

improvidently removed the case. In 1988, Congress amended section 1447(c), deleting the improvidently removed language and simply providing that on remanding a case the court could require the payment of costs and fees. Congress, however, did not establish a standard governing when a court should require the payment of fees and costs to substitute for the imp rovidently
removed standard. Like the district court, we see no need t o establish definitive criteria against which costs and attorne y's fee applications under section 1447(c) must be judged. ETS argues
that it did not remove the case in bad faith. Whil e we will assume that this contention is correct, this assump tion does not control our result, as we agree with the other cour ts of appeals which have held that the district court may require the payment of fees and costs by a party which removed a case w hich the court then remanded, even though the party removing the c ase did not act in bad faith. See Morris v. Bridgestone/Firest one, Inc., 985 F.2d 238, 240 (6th Cir. 1993); Moore v. Permanente, 981 F.2d at 447; Morgan Guar. Trust Co. v. Republic of Palau, 9 71 F.2d at 923-24. Rather, a district court has broad discret ion and may be flexible in determining whether to require the paym ent of fees under section 1447(c). See Moore v. Permanente, 98 1 F.2d at 449; Morgan Guar. Trust Co. v. Republic of Palau, 971 F. 2d at 924. We note that in Moore v. Permanente, 981 F.2d at 447, the court indicated that even though a remand order is unreviewable under section 1447(d), "some evaluatio n of the merits of the remand order is necessary to review a n award of attorney's fees, regardless of the test applied." While we do not go so far as to hold that an evaluation of the merits of a remand order is always necessary to review an award of fees under section 1447(c), we agree that section 1447(d), in precluding an appeal from an order of remand for a reason provide d for remand in section 1447(c), does not preclude all evaluatio n of a remand order. Section 1447(d) is intended to avoid the de lays attendant upon appeal from an order of remand. See Liberty M ut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 745 (3d Cir. 1 995). An
evaluation of an order of remand in the context of the review of an award of fees under section 1447(c) does not rai se the concerns regarding delay that section 1447(d) seeks to avoid, as that evaluation will not interfere with the proceed ings in the state court. We also point out that a court of app eals might be reluctant to uphold an award of fees under section 1447(c) if it
concluded that the district court erred in remandin g the case for a reason enumerated in section 1447(c) even though it could not
reverse the order of remand. In some cases there are very difficult is sues raised when a party removes a case filed in a state court to the district court and another party moves to remand. See, e.g., Goepel v. National Postal Mail Handlers Union, 36 F .3d 306 (3d Cir. 1994), cert. denied, 115 S.Ct. 1691 (1995). B ut this case
is not difficult as there was no colorable basis fo r the removal. Mints brought this action under state law. He made no claim that ETS's actions in terminating him and in failing to rehire himviolated any federal employment discrimination stat ute or ERISA.

Furthermore, to prove his case Mints either must es tablish that ETS violated the New Jersey Law Against Discriminat ion or that he can recover against ETS by proving that it is liabl e on one or more of his common law counts. While Mints did ple ad that he lost rights protected by ERISA when ETS terminated his employment and he pointed out that ETS terminated him within t wo years of the time he would have become eligible for benefits upon taking early retirement, he did not assert that ETS fired him to avoid an obligation to pay benefits. Rather, he merely s et forth the loss of his ERISA protected rights as a consequence of ETS's actions which allegedly violated state law. Furthe rmore, in many employment termination cases in which a plaintiff c laims that the employer terminated him or her for discriminatory r easons, the employee will have lost ERISA benefits so that the employee's reinstatement will restore the benefits or a damage s award may compensate the employee for their loss.
While this case is not the vehicle in whi ch to set
forth in detail when state causes of action will be deemed completely preempted by ERISA so that regardless of how the plaintiff pleads them they are of federal character and thus arise under federal law, we do state that this case is not even close to being in that category. See Dukes v. U.S. Healthcare, Inc., 57 F.3d 356-61. Thus, the assertion in the r emoval petition that the district court had jurisdiction w as, if not frivolous, at best insubstantial. In the circumsta nces, we cannot possibly conclude that the district court ab used its discretion in ordering ETS to pay Mints's attorney' s fees and costs with respect to the motion to remand and for
reconsideration. Mints has made a motion under Fed. R. App . P. 38 for the imposition of sanctions against ETS on the grou nds that this appeal is frivolous. We will deny that motion beca use ETS has raised substantial procedural arguments on the appe al. SeeLiberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d at 751. While we reject these arguments, we cannot regard t hem as
frivolous. The order of January 5, 1996, will be aff irmed.