United States Court of Appeals,

Fifth Circuit.

No. 92-5290.

Thomas H. BURKS, Plaintiff-Appellee,

v.

AMERADA HESS CORPORATION and Alan Fuller, Defendants-Appellants.

Dec. 7, 1993.

Appeal from the United States District Court for the Eastern District of Texas.

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Thomas H. Burks was an employee of Amerada Hess Corporation ("Hess") who suffered an

on-the-job injury and filed for workers' compensation. Shortly thereafter, Hess fired Burks, allegedly

for using company property for his personal benefit during work hours. Burks contended that he was

fired in retaliation for making a workers' compensation claim, and he filed suit in Texas state court

against Hess and Alan Fuller, a Hess manager. Later he amended his complaint, alleging intentional

infliction of emotional distress, unlawful termination, slander, libel, and defamation, all arising from

the termination of employment and the denial of his long-term benefits. The defendants removed to

federal court, basing jurisdiction upon the Employee Retirement Income Security Act of 1974

("ERISA"), 29 U.S.C. §§ 1001-1461. After Burks amended his complaint once again, the district

court remanded to state court. Because we find that the district court abused its discretion by

remanding, we reverse.

I.

Burks's original petition in state court, filed in March 1991, claimed that Hess fired him in

retaliation for filing a worker's compensation claim and alleged the following:

Defendant's firing of Plaintiff is a violation of Article 8307(c) Texas Revised Civil Statutes

which prevents employers from firing workers who have filed worker's compensation

claims.... As a result of Defendant's unlawful action, Plaintiff has suffered damages. Plaintiff

Burks hassuffered lost wagesin the past and willsuffer lost wagesin the future. Plaintiff has

also as a result of his employment, received additional benefits such as health insurance and

retirement benefits. As a result of his firing, Plaintiff will not [sic] longer receive such
 

1The court reasoned that it had "allowed plaintiff to amend his petition and omit any allegation

that his emotional distress resulted from a denial of benefits." In truth, the second amended

complaint still alleged the emotional distress claim. 

benefits.

In April 1992, Burks replaced the original petition with a first amended pet ition containing the

following language:

Defendant's firing of Plaintiff is a violation of Article 8307(c) Texas Revised Civil Statutes

which prevents employersfromfiring workers who have filed worker's compensation claims.

Plaintiff was fired immediately upon his return to work from being off due to an on-the-job

injury, and further his employer denied his long-term disability benefits. The defendants'

actions constitute an intentional infliction of emotional distress.

 * * * * * *

Plaintiff would further show the Court that during his employment with AMERADA HESS

CORPORATION he worked overtime and was never compensated for it or received any

comp time. Plaintiff has overtime due and owing in the amount of $30,000.00.

Within thirty days of the filing of the second amended petition, Hessremoved the case on the ground

that Burks's claim for elimination of long-term disability benefits was preempted by ERISA.

In September 1992, Burks filed his second amended petition, which was identical to the first

amended petition except that it omitted the paragraph containing the overtime compensation claim.

Thus, the second amended petition contained the following statement:

Defendant's firing of Plaintiff is a violation of Article 8307(c) Texas Revised Civil Statutes

which prevents employersfromfiring workers who have filed worker's compensation claims.

Plaintiff was fired immediately upon his return to work from being off due to an on-the-job

injury, and further his employer denied his long-term disability benefits. The defendants'

actions constitute an intentional infliction of emotional distress.

In November 1992, the district court ordered the case remanded to state court1and rejected

Hess's motion to reconsider the remand, holding that the emotional distress claim contained in the

second amended complaint was not preempted.

II.

The first issue we must deal with is whether we have appellate jurisdiction over the remand

order. At first glance, 28 U.S.C. § 1447(d) appears to preclude appellate review of any remand

order. It reads,

An order remanding a case to the State court from which it was removed is not reviewable
 

2According to the district court,

However, the issue before the court is not whether the case was properly removed,

but whether the court should remand the case to state court when only state law

claims remain.

The Supreme Court has held that ... a federal district court has discretion to

remand a properly removed case to state court when all federal-law claims

have been eliminated and only pendent state-law claims remain.

Jones v. Roadway Express, Inc., 936 F.2d [789, 792 (5th Cir.1991) ] (citing

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720

(1988)). 

 

3Carnegie-Mellon, 484 U.S. at 343 n. 11, 108 S.Ct. at 614 n. 11 ("The remand power that we

recognize today derives from the doctrine of pendent jurisdiction and applies only to cases

involving pendent claims. Sections 1441(c) and 1447(c), as the dissent recognizes, do not apply

to cases over which the federal court has pendent jurisdiction. Thus, the remand authority

conferred by the removal statute and the remand authority conferred by the doctrine of pendent

jurisdiction overlap not at all."). Although § 1447(c) has been amended since Carnegie-Mellon

was decided, the Supreme Court's analysis continues to apply. 

 

4We can review an order to remand if the district court affirmatively states a non-§ 1447(c)

ground for remand. See Soley v. First Nat'l Bank of Commerce, 923 F.2d 406, 409 (5th

Cir.1991); In re Merrimack Mut. Fire Ins. Co., 587 F.2d 642, 647 (5th Cir.1978) ("Thermtron

announced only a narrow rule that was intended to be limited to the extreme facts of that case, in

which a district judge stated openly that he was relying on a non-§ 1447(c) ground for remand."). 

Thus, a remand order is reviewable if it is based upon the Carnegie-Mellon rationale. On the

other hand, a remand order is immune from review if it is based upon a ground contained in §

1447(c), such as lack of subject matter jurisdiction. See Tillman v. CSX Transp., 929 F.2d 1023

(5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 176, 116 L.Ed.2d 139 (1991) (remand order

stated that amendment to add another party "would destroy subject matter jurisdiction in this

court"); In re Weaver, 610 F.2d 335, 337 (5th Cir.1980); Merrimack, 587 F.2d at 647-48. 

on appeal or otherwise, except that an order remanding a case to the State court from which

it was removed pursuant to section 1443 of this title shall be reviewable by appeal or

otherwise.

Despite its broad language, § 1447(d) applies only to remands made pursuant to § 1447(c).

Thermtron Prods. v. Hermansdorfer, 423 U.S. 336, 350-52, 96 S.Ct. 584, 593-94, 46 L.Ed.2d 542

(1976). Section 1447(c) provides two grounds for remand: (1) a defect in removal procedure and

(2) lack of subject matter jurisdict ion. The district court's rationale for remanding is that it has

discretion not to exercise its jurisdiction over pendent state claims.2 Because this rationale is not a

ground for remand under § 1447(c),3 we can review the remand order.4 J.O. v. Alton Community

Unit School Dist. 11, 909 F.2d 267 (7th Cir.1990) (order based upon district court's discretion to

remand pendent state claims is reviewable); Rothner v. City of Chicago, 879 F.2d 1402 (7th
 

5The second amended complaint was the current version of the complaint when the district

court remanded. 

Cir.1989) (same) (dictum); In re Life Ins. Co. of N. Am., 857 F.2d 1190, 1193 n. 1 (8th Cir.1988);

Scott v. Machinists Automotive Trades Dist. Lodge No. 190, 827 F.2d 589, 592 (9th Cir.1987)

(same).

III.

We review as a matter of law the district court's decision to remand the case. Although the

district court ostensibly exercised its discretion to remand a case in which federal jurisdiction has

disappeared, see Carnegie-Mellon, a district court has no discretion to remand a matter in which a

federal-law claim still exists. In re Wilson Indus., 886 F.2d 93, 96 (5th Cir.1989). Because the first

and second amended complaints contain a claim that is preempted by federal law, the district court

could not decline to hear the removed case.

Burks'ssecond amended petition contains a claimthat the denial of employee benefits byHess

constituted an intentional infliction of emotional distress.5 The second amended petition reads,

Plaintiff was fired immediately upon his return to work from being off due to an on-the-job

injury, and further his employer denied his long-term disability benefits. The defendants'

actions constitute an intentional infliction of emotional distress. [Emphasis added.]

The district court held that Burks's complaint, although inartfully pleaded, merely asserted a

claim for emotional distress arising from wrongful termination and did not assert a claim for

emotional distress arising from denial of benefits. We disagree.

We interpret the language quoted above to allege two different claims: first, that the firing

of Burks was an intentional infliction of emotional distress; and second, that the denial of long-term

disability benefits was an intentional infliction of emotional distress. The conjunctive phrase "and

further" distinguishes the two claims. Also, the allegation of intentional infliction of emotional

distress in the second sentence appears to relate back to both "actions": the wrongful discharge and

the denial of benefits.

Further evidence that the two claims are separate can be found in Burks's response to Hess's

motion for partial summary judgment:
 

6Following oral argument, Burks has filed in this court a motion for leave to file a third

amended complaint in federal district court. We deny that motion. While it appears that Burks

has had ample opportunity to amend and is engaged in an obvious and somewhat frantic maneuver

to avoid federal jurisdiction, we leave it up to the district court, in the first instance, to evaluate

any further motion for leave to amend. 

 

7

In Brown, a relapse in a worker's chronic back condition allegedly prevented him from

working. The employee's supervisors visited him at his home to inform him that his claim for

additional disability benefits had been denied. They also told him that he would be fired if he did

not return to work. Later, when the employee did not return to work, he was fired.

The employee sued the company for, among other things, intentional infliction of

emotional distress, alleging that the company forced him to choose between his job and

proper treatment of his medical condition. Because the "essence of [the plaintiff's]

complaint was that "his claim for ERISA benefits was wrongly denied,' " we held the

emotional distress claim was preempted. 

 

8Title 29 U.S.C. § 1144(a) states,

Except as provided in subsection (b) of this section, the provisions of this

subchapter and chapter III of this chapter shall supersede any and all State laws

insofar as they may now or hereafter relate to any employee benefit plan described

in section 1003(a) of this title and not exempt under section 1003(b) of this title. 

[N]either is Summary Judgment proper as to the Plaintiff's claim for intentional infliction of

emotional distress. The Defendant's [sic] actions in this case are extreme and outrageous.

The Plaintiff was terminated the day he attempted to return from his injury. His attempting

to return to work was against his doctor's recommendation. The Defendant's [sic] then

advised the other employees of the company that the Plaintiff had been terminated for

misconduct whichwas not true. The Defendant's [sic] conduct was further outrageous in that

they attempted to get him to sign a release releasing them from all claims for wrongful

termination and attempted to deny him employee benefits to which he was rightly entitled.

These benefits were reinstated after action by the Plaintiff's lawyer. The Plaintiff has made

no claim for the denial of these benefits but rather the Defendant's [sic] actions show their

outrageous behavior. [Emphasis added.]

Thus, in the district court Burks sought to isolate the denial of benefits as an independent act that

inflicted emotional distress.

In our view, Burks'ssecond amended complaint allegesthat Hess denied to himhis employee

benefits and that such denial was an intentional infliction of emotional distress.6 As we held in Brown

v. Southwestern Bell Tel. Co., 901 F.2d 1250, 1254 (5th Cir.1990), a cause of action for infliction

of emotional distress arising from the denial of employee benefits is preempted by ERISA.7

The preemption clause in ERISA preempts allstate lawsthat relate to ERISA plans.8 A state

cause of action for emotional distress arising from the denial of employee benefits determines when

an employer can and cannot terminate an employee's benefits.
 

9Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir.1988); Titsch v.

Reliance Group, Inc., 548 F.Supp. 983, 985 (S.D.N.Y.1982), aff'd mem., 742 F.2d 1441 (2d

Cir.1983); Samuel v. Langham, 780 F.Supp. 424, 427 (N.D.Tex.1992); Morningstar v. Meijer,

Inc., 662 F.Supp. 555, 557 (E.D.Mich.1987); Rody v. Midland Enter., 685 F.Supp. 129

(M.D.La.1988). 

This is not a case in which the loss of benefits is merely an element in damages related to a

claim for wrongful discharge. Burks's complaint expressly says that—independently of the wrongful

discharge—his denial of benefits is illegal under state law.

IV.

Burks argues, alternatively, that if the second amended complaint is preempted by ERISA,

the original petition also was preempted by ERISA. Since Hess's notice of removal was filed more

than thirty days after Hessreceived Burks's original petition, Burks arguesthat the notice of removal

fails to meet the thirty-day requirement. A notice of removal must be filed within thirty days after

receipt by the defendant of a document from which it may first be ascertained that the case is

removable. 28 U.S.C. § 1446.

The flaw with Burks's argument is that the original petition contained only state claims that

were not preempted byERISA. That petition alleged that Hess unlawfully discharged Burks for filing

a worker's compensation claim. See TEX.REV.CIV.STAT.ANN. art. 8307c (West Supp.1993). The

original petition plainly stated that the loss of benefit was merely part of damages caused by the

termination:

As a result of Defendant's unlawful action, Plaintiff hassuffered damages. Plaintiff Burks has

suffered lost wages in the past and will suffer lost wages in the future. Plaintiff has also as

a result of his employment, received additional benefits such as health insurance and

retirement benefits. As a result of his firing, Plaintiff will not [sic] longer receive such

benefits. [Emphasis added.]

 A claim that unlawful termination resulted in loss of benefits is not preempted by ERISA.9

Because the original petition presented no question of federal law, the case was not removable until

Burksfiled hisfirst amended petition, which contained an ERISA-preempted claim. Hess's notice of

removal, filed within thirty days thereafter, was therefore proper.

In closing, we express our disapprovalofBurks's attempt at forummanipulation. He has tried

and failed to delete all of the federal claims from his complaint in order to get the district court to
remand. In Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. at 619, the Court urged the lower federal

courts to guard against such manipulation by denying motions to remand where appropriate.

The order ofremand is REVERSED, and this matter is REMANDED to the district court for

further appropriate proceedings.