1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-1996

Mints v. Ed Testing Ser

Precedential or Non-Precedential:

Docket 96-5067

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Recommended Citation

"Mints v. Ed Testing Ser" (1996). 1996 Decisions. Paper 27.

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 UNITED 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 Judges, 

 and HILLMAN, District Judge* 

 (Filed: November 14, 1996) 

 

 William S. Greenberg 

 B. John Pendleton, Jr. 

 Mary Ann Mullaney 

 McCarter & English 

 100 Mulberry Street

 Four Gateway Center

 Newark, NJ 07101-0652 

 Attorneys for Appellant 

 Jeffrey A. Mints 

 60 Montague Avenue 

 Ewing, NJ 08628 

 Appellee pro se 

 

*Honorable Douglas W. Hillman, Senior Judge of the United States 

 District Court for the Western District of Michigan, sitting by 

 designation. 
 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 Educational Testing Service ("ETS") appeals from an 

order entered January 5, 1996, awarding appellee Jeffrey 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 case to the 

district court under 28 U.S.C. § 1441(b). ETS asserted 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 ("ERISA"), 29 

U.S.C. § 1001, et seq. Mints subsequently moved in the district 

court to remand the case to the Superior Court. The district 

court granted the motion and then denied ETS's motion for 

reconsideration. Thereafter, Mints made a motion for attorney's 

fees and costs which the district court granted. ETS then 

appealed the order awarding the fees and costs. This appeal 

raises procedural questions as to the time when a court may enter 

an order requiring payment of attorney's fees and costs when it 

remands a case to a state court, as well as substantive 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 included six 

counts which we describe in detail. In the first count, he 

alleged that ETS terminated his employment on May 17, 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 continued 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 retirement, 

including, but not limited to, pension, medical and other 

benefits." He asserted that he suffered pain, emotional 

distress, and humiliation as a result of ETS's practices and that 

he "has suffered and continues to suffer substantial losses in 

earnings, job experience, retirement benefits, medical benefits 

and other employee benefits that he would have received" but for 

his termination or otherwise would receive in the future. Mints 

sought reinstatement, compensatory and punitive damages, and 

attorney's fees pursuant to N.J. Stat. Ann. § 10:5-27.1 (West 

1993). Significantly, the count did not indicate that ETS's 
actions violated the Age Discrimination in Employment 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 ETS discharged 

him by reason of his sex and that its actions constituted 

unlawful sex discrimination under the New Jersey Law Against 

Discrimination. He alleged that he suffered the same losses from 

sex discrimination as he suffered from age discrimination. 

Significantly, Mints did not allege that ETS's action 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 not 

obtain rights vested under ERISA. In the third count, Mints 

charged that ETS terminated his employment because he suffered a 

disability. He brought this count under the New Jersey 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 statute 

paralleling the state discrimination claim, the Americans with 

Disabilities Act, 42 U.S.C. § 12101, et seq., or under ERISA, and 

he did not assert that ETS discharged him so that he would not 

obtain rights vested under ERISA. 

 In Mints's fourth, fifth, and sixth counts he asserted 

common law claims for breach of contract, wrongful discharge, and 

defamation. Mints alleged in the breach of contract and wrongful 

discharge counts that he suffered the same losses as he set forth 

in the three discrimination counts, but in the defamation count 

he set forth only general losses and did not assert that he 

suffered the employment related losses he claimed in the other 

counts. Mints did not allege that he had a right to recovery 

under ERISA or any other federal law in any of these three 

counts. 

 Mints's omission of federal statutory causes 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 state case but 

adds these three federal statutes as bases for relief. 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 notice of removal 

of the Superior Court action to the district court. In the 

notice, ETS quoted the portion of the Superior Court complaint in 

which Mints alleged that ETS discharged him "within two years of 

vesting his eligibility for early retirement, including, but not 

limited to, pension, medical and other benefits." In addition, 

ETS set forth in the notice of removal that Mints was seeking 

benefits pursuant to a group employee welfare benefit plan. In 

view of these allegations, ETS asserted that the district 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, 481 U.S. 58, 

107 S.Ct. 1542 (1987), in support of its position. 

 Mints then moved in the district court to remand the 
case 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 pointed 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 ordinarily a 

district court has removal jurisdiction only if the federal cause 

of action appears on the face of the plaintiff's well-pleaded 

complaint. See Franchise Tax Board v. Construction Laborers 

Vacation Trust, 463 U.S. 1, 9-12, 103 S.Ct. 2841, 2846-47 (1983). 

Thus, the plaintiff is the master of the complaint and "may, by 

eschewing claims based on federal law, choose to have the cause 

heard in state court." Caterpillar Inc. v. Williams, 482 U.S. 

386, 399, 107 S.Ct. 2425, 2433 (1987). 

 The district court indicated, however, that in 

Metropolitan Life Ins. Co. v. Taylor, which ETS cited in its 

notice of removal, the Supreme Court recognized that "Congress 

may so completely pre-empt a particular area that any civil 

complaint raising this select group of claims is necessarily 

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 benefits due 

under the terms of a plan, the enforcement of rights under a plan 

or the clarification of the right to future benefits 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 question Mints's 

rights under ERISA. The court said that while Congress under 

ERISA has preempted state law claims "related to" employee 

pension and benefit plans, 29 U.S.C. § 1144(a), the fact that a 

plaintiff's claims might be deemed preempted does not establish 

that they are removable. See Dukes v. U.S. Healthcare, Inc., 57 

F.3d 350, 355 (3d Cir.), cert. denied, 116 S.Ct. 350 (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 state court 

where ETS could advance any preemption issue. 

 On September 19, 1995, the clerk of the district court 

mailed a certified copy of the remand order to the clerk of the 

Superior Court. On September 29, 1995, ETS moved for 

reconsideration. On November 9, 1995, the district court entered 

an order and accompanying opinion denying the motion for 

reconsideration. Notwithstanding Trans Penn Wax Corp. v. 

McCandless, 50 F.3d 217, 225 (3d Cir. 1995), and Hunt v. Acromed 

Corp., 961 F.2d 1079, 1081-82 (3d Cir. 1992), which indicate that 

once the district court mails a certified copy of the remand 

order to the state court the federal court is divested of 

jurisdiction, the district court denied the motion for 

reconsideration on the merits. 

 On December 8, 1995, Mints moved for an award of 

attorney's fees and costs to compensate him for moving for the 
remand and opposing ETS's motion for reconsideration. On January 

5, 1996, the district court entered an order and accompanying 

opinion granting $8,437.68 in fees and costs. In its opinion, 

the court pointed out that ETS argued that the court lacked 

jurisdiction to grant the fees and costs and that ETS argued that 

fees and costs should not be assessed against it as it did not 

act in bad faith in removing the action. The district court 

ruled that it did have jurisdiction inasmuch as the Supreme Court 

in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447 

(1990), held that a court could award attorney's fees under Fed. 

R. Civ. P. 11 after a plaintiff voluntarily dismissed a suit 

because "[i]t is well established that a federal court may 

consider collateral issues after an action is no longer pending." 

496 U.S. at 395, 110 S.Ct. at 2455. The district court pointed 

out that courts have applied this jurisdictional approach under 

section 1447(c) which provides that "[a]n order remanding the 

case may require payment of just costs and any actual expenses, 

including attorney fees, incurred as a result of the 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 standard 

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 1447(c) 

authorized the award of fees when a case was "removed 

improvidently." Under that standard there was authority that a 

court could assess fees only if the defendant acted in bad faith 

in removing the action. See Schmitt v. Insurance Co. of N.A., 

845 F.2d 1546, 1552 (9th Cir. 1988). The court indicated that 

the basis for awarding the plaintiff fees when a case is remanded 

now may be broader, as the court has broad discretion to award 

fees since the "removed improvidently" language has been removed 

from section 1447(c). See Gotro v. R & B Realty Group, 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 court 

nevertheless indicated that the propriety of the removal still 

may be a consideration in a determination of whether 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 held that even 

under the pre-1988 standard, ETS improvidently removed the case. 

Thus, it entered the order for $8,437.68 in fees and costs. ETS 

then appealed. 

 II. DISCUSSION 

 ETS makes both procedural and substantive arguments to 

support a reversal. Citing Trans Penn Wax v. McCandless, 50 F.3d 

at 225, and Hunt v. Acromed, 961 F.2d at 1081-82, ETS initially 

makes the procedural argument that the district court lost 

jurisdiction when the district court clerk sent the certified 

copy of the order of remand to the clerk of the Superior Court of 

New Jersey. It then points out that section 1447(c) provides 
that an order remanding a case "may require payment of just costs 

and any actual expenses, including attorney fees, incurred 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 filed and 

served no later than 14 days after the entry of judgment 

"[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 attorney's fees 

had to be entered in the order of remand and not thereafter. ETS 

also points out that even if section 1447(c) permitted 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 the court 

abused its discretion in awarding fees. This argument 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 within section 

1447(c). 

 We address ETS's procedural claims first, exercising 

plenary review, as these claims raise only issues of law. We 

agree with the district court that it did not lose jurisdiction 

to award fees and costs when the clerk of the district court 

mailed a certified copy of the order of remand to the clerk of 

the Superior Court. While there is no doubt that under Hunt v.Acromed 

Corp., 961 F.2d at 1081-82, the district court should not 

have reconsidered the order of remand after the clerk of the 

district court sent the certified copy of the order to the clerk 

of the Superior Court, the principles underlying our opinion in 

that case are not applicable with respect to the fee 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 event 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 costs, it does 

not interfere with or even affect the proceedings in the state 

court. Thus, we see no reason why a district court cannot 

entertain a request for attorney's fees and costs in 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 of 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 voluntarily dismissed 

an action. While we recognize that Cooter & Gell is 

distinguishable because it did not implicate the special 
jurisdictional problems presented when a case is remanded to a 

state court, and because it involved an application under Rule 11 

rather than under section 1447(c), the case still guides us. As 

the district court noted, other courts have followed Cooter & 

Gell and have allowed an award of attorney's fees under 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 affect the 

proceedings in the state court. 

 Even though Hunt v. Acromed does not bar the postremand award of fees and costs, there understandably 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 itself, since 

section 1447(c) states that an order remanding a case "may 

require payment of just costs and any actual expenses, including 

attorney's fees, incurred as a result of the removal." SeeUnited 

Broadcasting Corp. v. Miami Tele-Communications, Inc., 140 

F.R.D. 12, 14 (S.D. Fla. 1991) ("This court is of the 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. § 1447(c), it 

must be taken care of in the order of remand."); Casal 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 argument, 

predicated on the language of section 1447(c), is distinct from 

ETS's contention that the district court lost jurisdiction 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 section 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 appeals affirmed 

an order assessing attorney's fees against a defendant after the 

court remanded the matter. In the course of its opinion, the 

Moore court explained that: "[w]hile we have not addressed 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 collateral 

matter over which a court normally retains jurisdiction even 

after being divested of jurisdiction on the merits." Id. at 445. 

 In our view, section 1447(c), by providing 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) provides that 

"[i]f at any time before final judgment it appears that the 

district court lacks subject matter jurisdiction, the case shall 

be remanded." The duty of the district court to remand the case 

for lack of subject matter jurisdiction is not dependent on 

either party moving for a remand. Accordingly, while undoubtedly 

the appropriate practice for a district court which proposes 
remanding a removed matter for lack of subject matter 

jurisdiction would be to invite the parties to submit their views 

before it enters the order for remand, particularly inasmuch as 

the court probably will not be able to reconsider its order after 

the clerk sends a copy of it to the state court, see Hunt v. 

Acromed, 961 F.2d at 1082 n.6, still it is possible that the 

district court might remand the case without seeking the parties' 

views. In fact, that is what happened in Hunt v. Acromed 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 deprive 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 costs 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 attorney's fees 

incurred in a motion to remand. Rather, section 1447(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 motion to remand. 

Accordingly, though we acknowledge that sometimes language such 

as "may require" can be deemed mandatory, we find that 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 remand, but to make 

clear that the district court has discretion whether to order 

such payment. Our conclusion is supported by the courts' 

recognition that when remanding a case they are not required to 

order the payment of costs and fees. See, e.g., Moore v. 

Permanente, 981 F.2d at 447. So understood the "may require" 

language in section 1447(c) is not temporal and does 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 entered. 

 We realize that it might be argued that by not limiting 

entry of an order for fees and costs to the time the order for 

remand is entered we would leave an open-ended period for a 

party, usually the plaintiff, to move for fees and costs after a 

remand. Such a fear, however, would not be well grounded. Fed. 

R. Civ. P. 54(d)(2)(B) directs that unless otherwise provided by 

statute or order of the court, a motion for attorney's fees and 

related nontaxable expenses must be filed and served "not later 

than 14 days after entry of judgment." We believe that an order 

of remand would be regarded as a judgment under Rule 54(d)(2)(B), 

even though it is not appealable, since the entry of the order 

would terminate the matter in the district court. Thus, although 

Fed. R. Civ. P. 54(a) provides that a judgment "includes a decree 

or any order from which an appeal lies" it does not preclude an 

order of remand from being regarded as a judgment within Rule 

54(d)(2)(B) because a remand order, though not appealable, has 
the same indicia of finality as an appealable order. Therefore, 

we do not read "includes" in Rule 54(a) as in all cases limiting 

a judgment to an appealable order. 

 ETS also argues that if section 1447(c) was not 

applicable in determining when Mints had to make his fee 

application, then Rule 54(d)(2)(B) was applicable, and under that 

rule Mints's motion for fees and costs was late. This argument 

certainly seems to be correct because Mints filed his motion on 

December 8, 1995, which was more than 14 days after November 9, 

1995, when the district court entered its order denying 

reconsideration of its order of remand. Thus, even if we measure 

the 14 days from the denial of the motion for reconsideration 

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 54(d)(2)(B). 

He thus contends that we should not entertain the argument, as 

ETS is raising the issue on appeal for the first time. 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. Rather, in the 

district court brief it made the procedural arguments that (1) 

section 1447(c) requires that an order for costs and 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 remand 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 district 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 remand for the 

district court to consider whether to extend the time for Mints 

to file the motion for fees and costs so that the December 8, 

1995 motion would be deemed timely. At this late date, 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 54(d)(2)(B) is 

not jurisdictional, as the district court can extend the time for 

motions under that rule, we adhere to our usual practice 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 1074, 1087 (3d 

Cir. 1995); Moore v. Permanente, 981 F.2d at 447 (abuse 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) provided that the 

court could order payment of costs and fees on remanding a case 
if the party against whom the costs and fees are sought 

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 improvidently 

removed standard. 

 Like the district court, we see no need to establish 

definitive criteria against which costs and attorney's fee 

applications under section 1447(c) must be judged. ETS argues 

that it did not remove the case in bad faith. While we will 

assume that this contention is correct, this assumption does not 

control our result, as we agree with the other courts of appeals 

which have held that the district court may require the payment 

of fees and costs by a party which removed a case which the court 

then remanded, even though the party removing the case did not 

act in bad faith. See Morris v. Bridgestone/Firestone, 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, 971 F.2d at 

923-24. Rather, a district court has broad discretion and may be 

flexible in determining whether to require the payment of fees 

under section 1447(c). See Moore v. Permanente, 981 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 evaluation of the 

merits of the remand order is necessary to review an 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 provided for remand 

in section 1447(c), does not preclude all evaluation of a remand 

order. Section 1447(d) is intended to avoid the delays attendant 

upon appeal from an order of remand. See Liberty Mut. Ins. Co. 

v. Ward Trucking Corp., 48 F.3d 742, 745 (3d Cir. 1995). An 

evaluation of an order of remand in the context of the review of 

an award of fees under section 1447(c) does not raise the 

concerns regarding delay that section 1447(d) seeks to avoid, as 

that evaluation will not interfere with the proceedings in the 

state court. We also point out that a court of appeals might be 

reluctant to uphold an award of fees under section 1447(c) if it 

concluded that the district court erred in remanding 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 issues 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). But this case 

is not difficult as there was no colorable basis for 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 him 
violated any federal employment discrimination statute or ERISA. 

Furthermore, to prove his case Mints either must establish that 

ETS violated the New Jersey Law Against Discrimination or that he 

can recover against ETS by proving that it is liable on one or 

more of his common law counts. While Mints did plead that he 

lost rights protected by ERISA when ETS terminated his employment 

and he pointed out that ETS terminated him within two 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 set forth the 

loss of his ERISA protected rights as a consequence of ETS's 

actions which allegedly violated state law. Furthermore, in many 

employment termination cases in which a plaintiff claims that the 

employer terminated him or her for discriminatory reasons, the 

employee will have lost ERISA benefits so that the employee's 

reinstatement will restore the benefits or a damages award may 

compensate the employee for their loss. 

 While this case is not the vehicle in which 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 removal 

petition that the district court had jurisdiction was, if not 

frivolous, at best insubstantial. In the circumstances, we 

cannot possibly conclude that the district court abused 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 grounds that this 

appeal is frivolous. We will deny that motion because ETS has 

raised substantial procedural arguments on the appeal. SeeLiberty Mut. 

Ins. Co. v. Ward Trucking Corp., 48 F.3d at 751. 

While we reject these arguments, we cannot regard them as 

frivolous. 

 The order of January 5, 1996, will be affirmed.