1

The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-3100

___________

Duane Carlson, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the District

* of Minnesota.

Arrowhead Concrete Works, Inc., *

*

Defendant-Appellant. *

___________

Submitted: March 13, 2006

Filed: April 19, 2006 

___________

Before MURPHY, BOWMAN, and BENTON Circuit Judges.

___________

MURPHY, Circuit Judge.

Duane Carlson (Carlson) brought this action in state court against his former

employer Arrowhead Concrete Works, Inc. (Arrowhead) for retaliatory discharge and

failure to recall, in violation of the Minnesota Occupational Safety and Health Act and

the state whistleblower statute. Arrowhead removed the case to the federal district

court, alleging complete preemption under § 301 of the Labor Management Relations

Act (LMRA), and then moved to dismiss. The district court1

 denied the motion to

dismiss and remanded the case after concluding that it lacked subject matter
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jurisdiction over Carlson's claims because they were not completely preempted.

Arrowhead appeals, but we dismiss the appeal for lack of jurisdiction. 

I.

Arrowhead hired Carlson as a pump truck operator in December 2002. The

terms of his employment were governed by a collective bargaining agreement (CBA)

between the local Teamsters Union and Arrowhead. The CBA and the accompanying

memorandum of understanding provide that no driver shall be required to drive a

truck that does not comply with all state and local safety regulations. There are also

detailed provisions governing seniority, layoffs, and recall rights and a grievance

arbitration provision for disputes about the CBA.

In early 2003 Arrowhead sent Carlson to a safety training course conducted by

the pump truck manufacturer, Swing America (Swing). After his training Carlson

became concerned about the safety of two of the trucks, and he reported his concerns

to Arrowhead owners, Jim and Gerry Carlson (no relation to Duane). Carlson told Jim

and Gerry that driving these trucks would violate various laws, including the

Occupational Safety and Health Act (OSHA). Although he asked them to have the

trucks inspected, they did not. Carlson also contacted Swing and Concrete Pump

Repair (CPR) to report safety issues with the trucks, and they suggested he bring the

trucks in for repairs. 

During the summer of 2003 Carlson continued to raise safety concerns with Jim

and Gerry, who suggested that the trucks could be serviced in the winter when they

were not in use. Carlson also took one truck into CPR to fix a crack on the bottom,

and CPR told him that many more repairs were needed. Gerry instructed Carlson to

return the truck without making the repairs. In August Carlson noticed more serious

structural problems with the truck and told Jim and Gerry that if the truck were not
2

 Complete preemption permits a party to remove a case from state court based

on federal question jurisdiction. See Caterpillar v. Williams, 482 U.S. 386, 392-94

(1987). It is distinct from the affirmative defense of preemption which contests

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repaired, it could seriously injure or kill someone. Jim responded "you should keep

your mouth shut and do what you are told." 

After talking with the union and gaining its support, Carlson informed

Arrowhead on August 28, 2003 that he was resigning from his pump truck driving

position in two weeks and would exercise his seniority rights under the CBA to work

in another position. He added, however, that he would continue to drive the trucks if

they were repaired. On September 10, 2003, Carlson left his pump truck position and

began working on a mixer truck. That same day Jim told Carlson to start the pump

truck for a job, and Carlson refused. Jim responded "[l]isten you little cocksucker, get

in that truck right fucking now and get it ready. I am sick of your whining." He also

told Carlson that "some fuckers are going down the road and getting laid off. You're

going to be the first one you son of a bitch." Carlson reported this incident to the

union, but it declined to file a grievance. Later that fall Carlson was given permission

to get one of the trucks inspected. The mechanic at CPR found the truck extremely

unsafe, but when Gerry was told the cost of the repairs he ordered Carlson to return

the truck without having it fixed. Carlson refused. In November 2003 he was laid off,

along with six other workers. In June 2004 some of the workers were called back to

work, but despite Carlson's length of service he was not among those recalled. 

Carlson brought this action in state court in November 2004, alleging violations

of the Minnesota Whistleblower's Act, Minn. Stat. § 181.932, and the state

Occupational Safety and Health Act (MOSHA), Minn. Stat. § 182.654, based on the

circumstances surrounding his discharge and Arrowhead's failure to rehire him in

accordance with the seniority provisions of the CBA. Arrowhead removed the case

to the federal district court on December 16, 2004, contending that Carlson's claims

were completely preempted2

 by § 301 of the LMRA, 29 U.S.C. § 185. After the case
whether a particular claim may be litigated.

3

 The Garmon doctrine originated in San Diego Building Trades Council v.

Garmon, 359 U.S. 236, 244-47 (1959), where the Supreme Court held that neither

state nor federal courts have jurisdiction over claims arising under § 7 or § 8 of the

NLRA which the statute assigns to the National Labor Relations Board. This doctrine

is unrelated to complete preemption under § 301 of the LMRA. Teamsters v. Lucas

Flour Co., 369 U.S. 95, 101 n.9 (1962).

4

 Counsel affirmed at oral argument that the parties are not diverse.

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had been removed Arrowhead moved to dismiss, alleging that Carlson's claims were

completely preempted because they required interpretation of the CBA. It also alleged

in the alternative that his claims grew out of conduct arguably protected by the

National Labor Relations Act (NLRA) and were thus preempted under the Garmon

doctrine.3 Carlson responded that his case had been improperly removed to federal

court which lacked jurisdiction over it. 

The district court determined that Carlson's state law claims were not

completely preempted by LMRA § 301 because neither required interpretation of the

CBA and that subject matter jurisdiction was therefore lacking.4

 It denied

Arrowhead's motion to dismiss and remanded the case to state court pursuant to 28

U.S.C. § 1447(c). Arrowhead appeals. 

II. 

In every federal case the court must be satisfied that it has jurisdiction before

it turns to the merits of other legal arguments. Krein v. Norris, 309 F.3d 487, 490 (8th

Cir. 2002); Carney v. BIC Corp., 88 F.3d 629, 631 (8th Cir. 1996). Arrowhead asserts

that this court has jurisdiction over its appeal under 28 U.S.C. § 1291 which grants

appellate jurisdiction over appeals from a final order. Alternatively, it argues that the

district court's order is appealable under the collateral order exception to the finality
5

 In contrast, if a district court remands a case after the federal claims have been

resolved and it has chosen not to exercise supplemental jurisdiction, its order is

reviewable because it is not covered by § 1447(c). See, e.g., Lindsey v. Dillard's, Inc.,

306 F.3d 596, 598-99 (8th Cir. 2002); Green v. Ameritrade, Inc., 279 F.3d 590, 595

(8th Cir. 2002); St. John v. Int'l Ass'n of Machinists & Aerospace Workers, 139 F.3d

1214, 1216-17 (8th Cir. 1998). 

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rule. Carlson responds that under 28 U.S.C. § 1447(d) this court lacks jurisdiction

over an appeal from a remand order and that Arrowhead's appeal is not from a final

order or reviewable under the collateral order exception. Appellant Arrowhead bears

the burden to prove that appellate jurisdiction exists. Reinholdson v. Minnesota, 346

F.3d 847, 849 (8th Cir. 2003). 

Congress addressed appellate jurisdiction over remand orders in 28 U.S.C. §

1447(d), which provides that except in civil rights cases, "[a]n order remanding a case

to the State court from which it was removed is not reviewable on appeal or

otherwise." (emphasis added). The Supreme Court has instructed that § 1447(d) "must

be read in pari materia with § 1447(c)." Things Remembered, Inc. v. Petrarca, 516

U.S. 124, 127 (1995). Section 1447(c) provides that motions to remand based on a

procedural defect must be made within thirty days of removal and requires that a case

be remanded to state court "[i]f at any time before final judgment it appears that the

district court lacks subject matter jurisdiction." The district court explicitly based its

remand order in this case on § 1447(c). 

Under the statutory scheme remand orders based on a procedural defect or lack

of subject matter jurisdiction are unreviewable. Things Remembered, 516 U.S. at 127;

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345-46 (1976). So long

as the district court's remand order is based on one of these two grounds, "a court of

appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d)."

Things Remembered, 516 U.S. at 127-28; see also Horton v. Conklin, 431 F.3d 602,

604 (8th Cir. 2005).5

 This jurisdictional bar applies even if the district court's remand
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decision was in error. Thermtron, 423 U.S. at 343 ("this section prohibits review of

all remand orders...whether erroneous or not"); see also Vincent v. Dakota, Minnesota

& Eastern R.R. Corp., 200 F.3d 580, 581 (8th Cir. 2000); Transit Cas. Co. v. Certain

Underwriters at Lloyd's of London, 119 F.3d 619, 623 (8th Cir. 1997). Where the

district court has remanded under § 1447(c), the scope of our review is limited to

verifying that the actual basis for remand was lack of subject matter jurisdiction.

Lindsey v. Dillard's, Inc., 306 F.3d 596, 598 (8th Cir. 2002); Kennedy v. Lubar, 273

F.3d 1293, 1297 (10th Cir. 2001); Transit Cas. Co., 119 F.3d at 624; Mangold v.

Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir. 1996).

The doctrine of complete preemption "converts an ordinary state...law

complaint into one stating a federal claim" providing a basis for removal of the state

court action to federal court. Caterpillar v. Williams, 482 U.S. 386, 393 (1987).

Section 301 of the LMRA preempts state law claims "where the resolution of the state

claim substantially depends on the interpretation of terms or provisions of a collective

bargaining agreement," Hanks v. General Motors Corp., 906 F.2d 341, 343 (8th Cir.

1990) (internal quotations omitted), or where it is "inextricably intertwined" with

consideration of the CBA. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985).

On the other hand, "[m]ere reference to a collective bargaining agreement is not

sufficient to result in preemption," Thomas v. Union Pac. R.R. Co., 308 F.3d 891, 893

(8th Cir. 2002), and "when the meaning of contract terms is not the subject of dispute,

the bare fact that a collective-bargaining agreement will be consulted in the course of

state-law litigation plainly does not require the claim to be extinguished." Livadas v.

Bradshaw, 512 U.S. 107, 124 (1994). Complaints alleging a violation of state law

without asserting a breach of the CBA have been found not preempted by federal law.

See Deneen v. Northwest Airlines, Inc., 132 F.3d 431 (8th Cir. 1998); Welch v. Gen.

Motors Corp., Buick Motor Div., 922 F.2d 287 (6th Cir. 1990). It is the plaintiff who

controls the wording of the complaint, and reliance on the terms of a CBA to establish

a state law claim can lead to complete preemption. See Fant v. New England Power

Serv. Co., 239 F.3d 8, 14-16 (1st Cir. 2001) (affirming district court decision that state
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law claim for failure to recall was preempted by the LMRA because it was based on

seniority provisions of the CBA); Anderson v. Gen. Motors Corp., 35 Fed. Appx. 175,

179 (6th Cir. 2002) (same); Pandil v. Illinois Cent. Gulf R.R., 312 N.W.2d 139, 143

(Iowa App. 1981). 

In this case Carlson's complaint does refer to the seniority provision of the

CBA, directly quote language from this provision, and cite the alleged breach of the

CBA as proof of his whistleblower claim. See Complaint, ¶¶ 29-30, 38. The

whistleblower statute does not address employee recall, and the recall rights Carlson

asserts are only found in the CBA. Although adjudication of Carlson's claims could

require more than reference to the CBA, it has not been shown that it would involve

interpretation of the CBA. The district court opinion shows that its decision was

based on lack of subject matter jurisdiction and it explicitly remanded the case

pursuant to § 1447(c), making the remand unreviewable under § 1447(d). The

jurisdictional situation is even clearer here than in our Vincent decision where we

reasoned that the remand order must have been based on § 1447(c) because the "only

basis for remand discussed by the district court was whether it had subject matter

jurisdiction." Vincent, 200 F.3d at 582; see also Transit Cas. Co., 119 F.3d at 625;

Whitman v. Riley's Inc., 886 F.2d 1177, 1181 (9th Cir. 1989); Soley v. First Nat'l

Bank of Commerce, 923 F.2d 406, 409 (5th Cir. 1991). 

Arrowhead nonetheless urges that we retain appellate jurisdiction over this case

under 28 U.S.C. § 1291. Section 1291 vests the circuit courts with jurisdiction over

appeals from "all final decisions of the district courts of the United States," and it has

also been interpreted to permit appeals from collateral orders which would otherwise

not be reviewable. See Quackenbush v. Allstate Insur. Co., 517 U.S. 706, 712 (1996).

Arrowhead argues that the remand order in this case was a final order, but

alternatively that it should be considered a collateral order subject to appeal. 
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A decision is considered "final and appealable under § 1291 only if it 'ends the

litigation on the merits and leaves nothing for the court to do but execute the

judgment.'" Quackenbush, 517 U.S. at 712; Reinholdson, 346 F.3d at 849.

Arrowhead's finality argument relies primarily on Hill v. Bellsouth Communs., Inc.,

364 F.3d 1308 (11th Cir. 2004), an easily distinguishable case since it did not consider

the reviewability of a remand order issued under § 1447(c). Hill turned instead on the

appealability of an order remanding state law claims where the district court had

declined to exercise supplemental jurisdiction over them. 364 F.3d at 1314. It is thus

inapposite.

Arrowhead argues that the portion of the district court's order denying its

motion to dismiss Carlson's complaint is a final order appealable under § 1291.

Whether the denial of the motion to dismiss may be deemed a final order under § 1291

turns on whether it was only part of the whole district court remand order or whether

it is severable. An order is severable from a remand order and subject to appellate

review if (1) it precedes the order of remand “in logic and in fact” and was issued

while the district court had control of the case, and if (2) the order sought to be

separated is “conclusive.” City of Waco v. United States Fidelity & Guar. Co., 293

U.S. 140, 143 (1934). We examine each element in turn. 

Whether the denial of Arrowhead's motion precedes the remand portion of the

court's order in logic and fact depends in part upon the significance we give to the

sequence of the rulings made by the district court. In its order the district court denied

the motion to dismiss before remanding the case to state court. Had the district court's

denial of Arrowhead's motion to dismiss followed the remand portion of the order, the

denial of the motion would have been superfluous since the court would have already

determined it lacked jurisdiction and divested itself of the case. Arrowhead has not

referenced, nor have we found, any case where a similar chronology within an order

was determinative of the final order issue. We have recently dismissed an appeal for

lack of jurisdiction in another case with a similar scenario, where the district court first
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denied a motion to dismiss and then remanded for lack of subject matter jurisdiction.

See Horton, 431 F.3d 603 (appeal dismissed under § 1447(d) for lack of appellate

jurisdiction); see also Whitman, 886 F.2d 1177 (same). The significance given to the

sequence within the court's order is unsurprising since "[a]ny order remanding a

matter to state court for lack of subject matter jurisdiction necessarily denies all other

pending motions." Dahiya v. Talmidge Int'l, Ltd., 371 F.3d 207, 210 (5th Cir. 2004).

Even if the denial of the motion to dismiss preceded the remand order in logic

and fact, that portion of the order would not be severable unless the denial was

"conclusive." A federal district court ruling is conclusive if it is functionally

unreviewable in state court. City of Waco, 293 U.S. at 143; Arnold v. State Farm Fire

and Cas. Co., 277 F.3d 772, 777 (5th Cir. 2001). Since the district court's decision

was based on lack of federal subject matter jurisdiction, the denial of the motion to

dismiss is not considered conclusive. See Dahiya, 371 F.3d at 210 (refusal to compel

arbitration was jurisdictional and thus not conclusive); Angelides v. Baylor Coll. of

Med., 117 F.3d 833 (5th Cir. 1997) (denial of a motion to dismiss was jurisdictional

decision reviewable by state court and not conclusive). Here, the district court only

ruled on the issue of complete preemption under LMRA § 301 and specifically noted

that it was not addressing any other arguments in Arrowhead's motion to dismiss.

Carlson v. Arrowhead Concrete Works, Inc., 375 F. Supp. 2d 835, 839 n.3 (D. Minn.

2005). Although portions of orders dismissing a party or a claim have sometimes

been found conclusive, final, and subject to appellate review, see, e.g., City of Waco,

293 U.S. at 142-43; Allen v. Ferguson, 791 F.2d 611, 613 (7th Cir. 1986); Katsaris v.

United States, 684 F.2d 758, 761 (11th Cir. 1982), the test is whether those portions

affected "the parties' substantive rights." Nutter v. Monongahela Power Co., 4 F.3d

319, 321 (4th Cir. 1993).

Here, the denial of Arrowhead's motion to dismiss did not alter the substantive

rights of either party. Nothing in the district court's order prevents Arrowhead from

raising the affirmative defense of preemption or from bringing a motion to dismiss in
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the state court proceedings below. See Vincent, 200 F.3d at 582 (rejecting appellant's

argument that the preemption decision had preclusive effect in state court); Nutter, 4

F.3d at 321 (same). Indeed, "because the district court remanded for lack of subject

matter jurisdiction, it lacked jurisdiction to make any substantive rulings, and thus no

rulings of the federal court have any preclusive effect on the substantive matters

before the state court." Transit Cas. Co., 119 F.3d at 624. We therefore conclude that

the portion of the district court's order denying Arrowhead's motion to dismiss is not

severable from its remand order, and thus not separately appealable under § 1291. 

Arrowhead also contends that this court has appellate jurisdiction over the

remand order of the district court under the collateral order exception. This doctrine

establishes a narrow exception to the final order rule and permits an appeal if the

district court order (1) conclusively determined a disputed question; (2) resolved an

important issue completely separate from the merits of the action; and (3) is

effectively unreviewable on appeal from a final judgment. See Quackenbush, 517 U.S.

at 712; Cooper & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949). Arrowhead argues that all three parts

of this test are met in this case: the district court's order conclusively determined

whether § 301 of the LMRA completely preempts state law; its resolution of the

jurisdictional issue was a question separate from the merits; and any state court

determination upon remand will be effectively unreviewable in federal court. 

Arrowhead cites no case, and we have found none, which has treated a district

court remand order under § 1447(c) as a reviewable collateral order. See Excimer

Assocs., Inc. v. CLA Vision, Inc., 292 F.3d 134, 138 (2d Cir. 2002) (noting that "[w]e

have not found a single case in which this Court has invoked the collateral order

doctrine to confer appellate jurisdiction where the district court's remand order was

based on a determination that it lacked subject matter jurisdiction"). To the contrary,

courts of appeal have consistently held that § 1447(d) bars review of remand orders

by the district court when they are based on the lack of complete preemption under §
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301 of the LMRA. See Dahl v. Rosenfeld, 316 F.3d 1074 (9th Cir. 2003) (dismissing

for lack of jurisdiction based on district court's finding that § 301 of the LMRA did

not preempt state law); Kennedy, 273 F.3d at 1297 (same); Nutter, 4 F.3d 319 (same);

Soley, 923 F.2d 406 (same); Whitman, 886 F.2d at 1182 (same). And while our court

has not previously had occasion to address appellate jurisdiction over a remand order

based on the lack of complete preemption, we have determined that a § 1447(c)

remand order in analogous circumstances was unreviewable. See Vincent, 200 F.3d

at 581-82 (jurisdiction lacking over § 1447(c) remand order holding state law claims

not completely preempted by the Railway Labor Act).

Arrowhead's invocation of the collateral order rule in these circumstances

would virtually eviscerate § 1447(d) by allowing review of essentially any remand

order if it were framed by the appealing party as a collateral order. See In re WTC

Disaster Site, 414 F.3d 352, 368 (2d Cir. 2005); Good v. Voest-Alpine Indus., Inc.,

398 F.3d 918, 926 (7th Cir. 2005) ("If every remand decision could be relabeled as a

collateral order, there would be nothing left of...§ 1447(d)."). Moreover, such a

holding would directly contradict the rationale and purpose of § 1447(d) which is to

prevent the delay of state court proceedings by the federal appeals process. See

Thermtron, 423 U.S. at 351. We therefore conclude that the remand order in this case

is not a collateral order reviewable under 28 U.S.C. § 1291. 

Because the district court's remand order was issued pursuant to § 1447(c) for

lack of subject matter jurisdiction and does not qualify as an a final order or collateral

order appealable under § 1291, we lack jurisdiction under § 1447(d) to review the

merits of the case. Accordingly, the appeal is dismissed. 

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