* Pursuant to Local Rule 47.5, the court has det ermined t hat this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in Local Rule 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-20598

(Summary Calendar)

MARION HUDAIFA,

Plaintiff-Appellee,

versus

MEMORIAL HOSPITAL SOUTHWEST,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-96-1188)

December 23, 1996

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM: *

Memorial Hospital Southwest (“Memorial”), appellant, appeals to thi s court the di stri ct

court’s Order For Remand, remanding this case to Texas state court, and award of attorney’s fees

in favor of Marion Hudaifa (“Hudaifa”), appellee. Memorial makes three arguments on appeal: (1)

the Order For Remand is appealable; (2) on the merits, Hudaifa’s claim is preempted by ERISA; and

(3) the district court abused its discretion in awarding attorney’s fees.2

We have reviewed the record and briefs and conclude that (1) § 1447(d) bars review of the

remand order and (2) Hudaifa waived the award of attorney’s fees. Accordingly, the award of

attorney’s fees is VACATED and the appeal is DISMISSED.

FACTS

The Appellee, Marion Hudaifa, filed suit in Texas state district court against the Appellant,

Memorial Hospital Southwest (“Memorial”), alleging breach of duty of good faith and fair dealing

based upon Memorial’s alleged refusal to pay her medical expenses for an alleged on-the-job injury

and for allegedly compelling her to sign a release and settlement. Memorial filed an answer, pleading

three affi rmat ive defenses: (1) Preemption by ERISA; (2) Failure to mitigate damages; and (3)

Memorial’s actions were not a proximate cause of Hudaifa’s injuries.

Memorial filed for removal to federal district court pursuant to 28 U.S.C. § 1441. Hudaifa

filed a motion for remand and for sanctions for improvident removal. Memorial objected. Hudaifa’s

motion was granted and the case was remanded. The Order for Remand states in pertinent part:

The motion of Plaint iff Marion Hudaifa to remand the above entitled

action to the 189th District Court of Harris County, Texas in which

it was brought originally and for sanction, having co me before this

Court and the Court having considered the motion, the certified copy

of the plaint iff’s First Amended Original Petition and the file herein,

and it appearing to the Court that the above enti tl ed acti on was

removed to this Court impro vidently and that Plaint iff’s Moti on for

Remand should be granted; R. 59 (emphasis added).

The district court also awarded Hudaifa $300.00 in attorney’s fees pursuant to 28 U.S.C. §

1447(c). Memorial filed a timely appeal to this court.

DISCUSSION

I. The Remand Order is not Reviewable1 Prior to 1988, § 1447(c) read as follows: “If at any time before final judgment it appears

that the case was removed improvidently and without jurisdiction, the district court shall remand the

case . . . .”

3 Reviewability of a remand order depends entirely upon the trial court’s stated grounds for its

decision to remand. Remand after removal is controlled by 28 U.S.C. § 1447(c), which provides:

A motion to r emand t he case on the basis of any defect in removal

procedure must be made within 30 days after the filing of the notice

of removal under section 1446(a). If at any time before final judgment

it appears that the district court lacks subject matter jurisdiction, the

case shall be remanded.

28 U.S.C. § 1447(c).

Except in civil rights cases, once a case is remanded pursuant to § 1447(c), § 1447(d) mandates that

“[a]n order remanding a case to the State court from which it w as removed is not reviewable on

appeal or otherwise

. . . .” 28 U.S.C. § 1447(d); S ee Gravitt v. Southw estern Bell Tel. Co. , 430 U.S.

723 (1977 ). In fact, prior to the 1988 amendment 1 to §1447(c), mere use of the words

“improvidently and without jurisdiction” rendered any remand order by a district court totally

unreviewable, “no matter how clearly erroneous the order appear[ed] on its face.” In re Merrimack

Mutual Fire Ins. Co.

, 587 F.2d 642, 648 (5th Cir. 1978). Today, it is well established law in this

circuit that the recital of the new phrase “‘lack of subject matter jurisdiction” has the same effect as

the old language. Tillman v. CSX Transp., Inc. , 929 F.2d 1023, 1025 (5th Cir. 1991).

A problem arises, however, when the district court’s remand order neither recites the “magic

words,” nor mentions §1447(c), as in the case at bar. Memorial contends that this court may review

the remand order because the distr ict court remanded i t for a “reason other than those set out i n

section 1447(c).” Appellant’s Brief at 4. In support of its argument, Appellant attempts to place this2 T hermtron Products, Inc. v. Hermansdorfer

, 423 U.S. 336 (1976) (holding that review is

available by mandamus when remand is explicitly based upon grounds other than those specified in

§ 1447(c)).

4 case within the T

hermtron 2 exception of § 1447(c), by citing In re Shell Oil Co.

, 932 F.2d 1518 (5th

Cir. 1991), cert. denied

, 502 U.S. 1049 (1992), and In re International Paper Co.

, 961 F.2d 558 (5th

Cir. 1992), cert. denied , 506 U.S. 917 (1992), as controlling authority.

The reliance on Thermtron and its progeny is misplaced. T hermtron announced only a narrow

rule that was intended to be limit ed to the extreme facts of that case, in which a district judge stated

openly that he was relying o n a non-§ 1447(c) ground for remand. M errimack

, 587 F.2d at 647.

Consequently, Internation al Paper is not controlling. There the court held that an order which

remanded a case “in the spirit of federalism,” due to a congested docket was a basis outside the scope

of § 1447(c) and was reviewable. In the case at bar, the remand order is virtually silent.

Moreover, reliance on Shell Oil is totally inappropriate for the guidance in this case. There,

the court explicitly limit

ed the holding to cases in which both the “remand motions were not t imely,

and in which the remand orders were not based on lack of subject matter jurisdiction.” S hell Oil

, 922

F.2d at 1526 n.4. In our case, Hudaifa filed a timely motion to remand.

Soley v. First Nat’l Bank of Commerce

, 923 F.2d 4 06 (5th Ci r. 1991), provi des m ore

a ppropriate guidance for resolving our case. In S oley

, the court held that even if the trial cour t

neither states as grounds for remand the specific words of § 1447(c) nor cites the statute itself, the

order is n o t reviewable if, it is evident that the court intends to remand for the grounds cited in §

1447(c). In that case, in its order of remand the district court only stated that the claims “were not

within the bounds of ERISA pre-emption.” Id . at 409. The court stated that although the remand5

order was confusing, review was precluded “because th e district court di d not cl earl y state that i t

relied on a non-1447(c) ground.” Id.

Such is the case here. The district court’s Order of Remand only states that upon review of

Hudaifa’s motion and the record, the court determined that the action was removed “improvidently.”

The order does not cite § 1447(c) and provides no further reason for the remand.

Memorial argues that after the 1988 amendment to § 1447(c), only a finding of lack of subject

matter jurisdiction renders a remand order per se unreviewable under § 1447(d). Thus, the district

court statement that the case was improvidently removed is reviewable. Memorials argument,

however, contradicts the Supreme Court’s holding in Things Remembered, Inc., v. Petrarca

, 116 S.

Ct. 494 (1995). There, the court held that § 1447(d) prohibits review of a remand order any time the

district court’s remand is “based on a t imely raised defect in removal procedure or on lack of subjectmatter jurisdiction . . . .” Id. at 496 (emphasis added).

Because we conclude tha t § 1447(d) bars us from reviewing the remand order, we do not

reach Memorial’s arguments on the preemption issue.

II. The Award of Attorney’s Fees Pursuant to § 1447(c)

This court has held that it has the authority to review a district court’s award attorney’s fees

and costs pursuant to § 1447(c). See Miranti v. Lee

, 3 F.3d 925 (5th Cir. 1993). Consideration of

whether the district court abused its discretion, however, is useless in the instant case. Hudaifa has

waived any claim to the award “[i]n the interest of judicial economy . . . .” Appellee’s brief at 2.

Accordingly, the award of attorney’s fees is VACATED and the appeal is DISMISSED.