UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-30922

JULIO C. ARANA,

Plaintiff - Appellee

VERSUS

OCHSNER HEALTH PLAN, INC.,

Defendant - Appellant

Appeal from the United States District Court

For the Eastern District of Louisiana

August 15, 2002

Bef ore KING, Chief Judge, PARKER, Circuit Judge, and ELLISON,*

District Judge.

ELLISON, District Judge:Defendant-Appellant Ochsner Health Plan, Inc. (“OHP”)

requested and received certification under 28 U.S.C. § 1292(b) to

appeal the district court's order denying its motion to dismiss or,

alternatively, motion for summary judgment , and granting partial

summary judgment to Plaintiff-Appellee Julio C. Arana (“Arana”).

We hold that the district cou rt erred to the extent that it

determined it had jurisdiction over the instant action, and we

reverse the district court's order on that basis and direct that

the case be remanded to state court. Because we find that subject

matter jurisdiction is lacking, we do not reach the substantive

issues raised on appeal.

I. FACTS AND PROCEEDINGS BELOW

On July 5, 1998, Arana sustained serious injuries when a 1996

Ford Crown Victoria struck the rear of a 1995 Nissan Pathfinder,

operated by Arana and owned by his mother, Odette LeCler. At the

time of the accident, and at all relevant times thereafter, Arana

was a dependent beneficiary under the employee welfare benefit plan

established by his mother's employer, LeCler Printing Company. 1

OHP provided health benefits to participants and beneficiaries of

the LeCler Printing employee benefit plan (“the LeCler Plan”)

pursuant to a Group Health Services Agreement (“GHSA”) between OHP

and the employ er. After the automobile accident, Arana's health

care providers submitted to OHP claims f or services rendered to

Arana, and OHP has paid approximately $180,000 in health benefits

for treatment of Arana's accident-related injuries.In addition to the health benefits paid by OHP, coverage for

the accident also was available u nder four automobile insurance

policies: a State Fa rm liability policy covering the Crown

Victoria, an Allstate liability policy carried by the no n-owner

operator of that vehicle, a Fireman's Fund uninsured motorist

insurance policy issued on the Pathfinder, and an excess uninsured

motorist policy underwritten by United Fire. In October, 1998,

State Farm and Allstate paid their respective policy limits to

Arana, in the total amount of $150,000. Fireman's Fund paid Arana

$487,500, on a policy wi th a $500,000 limit. Finally, in late

2000, United Fir e, which provided $2 million in excess uninsured

motorist coverage subject to $650,000 in underlying limits, settled

with Arana for $475,000. Prior to their settlements with Arana,

Fireman's Fund and United Fire both were named as defendants in

Civil Action No. 98-2927, which Arana filed in the Eastern District

of Louisiana in connection with his automobile accident. Pursuant

to the terms of the settlement of that lawsuit, Arana's attorney

has maintained in a trust account $150,000 out of the settlement

proceeds obtained from United Fire. The remainder of the funds

received from the four automobile insurers has been disbursed.

During the relevant time period, OHP maintained an arrangement

under which Su bro Audit, Inc., a third-party contractor and

subrogation specialist, handled subrogation for OHP. On November

2, 1999, while the federal tort la wsuit remained pending, Subro

Audit wrote to Arana's mother and to United Fire, notifying boththat OHP claimed a contractual right to reimbursement of the health

benefits it had paid on Arana's behalf.

Arana d isputed OHP's right to pursue subrogation and/or

reimbursement, and filed the instant lawsuit against OHP in the

24th Judicial District Court for the Parish of Jefferson, both on

his own behalf and on behalf of other similarly situated

individuals. Specifically, in his petition Arana requests a

declaratory judgment “requiring OHP to release its notice of lien

and to withdraw and release OHP's subrogation, reimbursement, and

assignment claims” against Arana, Fireman's Fund, and/or United

Fire. Arana asserts that such claims violate L A

. R EV

. S TAT

. 22:663. 2

Arana also asks that OHP be ordered to pay statutory penalties and

attorney's fees pursuant to L A

. R EV

. S TAT . 22:657. 3

OHP removed Arana's lawsuit to the Eastern District of

Louisiana, on the grounds that the petition asserts claims that are

completely preempted by the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. § § 1001-1461. OHP then filed a motion to

dismiss pursuant to F E D

. R. C IV

. P. 12(b)(6) or, alternatively, a

motion for summary judgment. OHP's motion focuses on three issues:

w hether ERISA preempts L A

. R EV

. S TAT

. 22:663, whether 22:663

prohibits the defendant from claiming subrogation and/or

reimbursement rights, and whether Arana failed to exhaust the

administrative remedies provided by an ERISA plan prior to filing

suit. Arana filed a motion for partial summary judgment seeking a

declaration that, under Louisiana law, OHP does not have a right to

pursue subrogation and reimbursement for medical expenses that itpaid on behalf of Arana from any amount received by Arana under the

United Fire policy. The district court granted Arana's motion and

denied the motion filed by OHP. In reaching its decision, the

district court found th at Arana's petition stated a claim for

benefits under 29 U.S.C. § 502(a) that was completely preempted by

ERISA.

Pursuant to 28 U.S.C. § 1292(b), OHP appeals the district

court's order as to OHP's and Arana's respective motions. On

appeal, Arana asserts that subject matter jurisdiction is lacking. 4

II. JURISDICTION

A. Complete Preemption and Removal

“[A]ny civil action brought in a State court of which the

district courts of the Uni ted States have original jurisdiction,

may be removed by the defendant or the defendants, to the district

court of the United States for the district and division embracing

the place where such action is pending.” 28 U.S.C. 1441(a).

Moreover,

“[a]ny civil action of which the district courts

have original jurisdiction founded on a claim or

right arising under the Constitution, treaties or

laws of the United S tates shall be removable

without regard to the citizenship or residence of

the parties. Any other such action shall be

removable only if none of the parties in interest

properly joined and served as d efendants is a

citizen of the State in which such action is

brought.”

28 U.S.C. § 1441(b); see also 28 U.S.C. § 1331 (granti ng federal

question jurisdiction to district courts). Because OHP is acitizen of Louisiana, removal to the district court was proper only

if the instant action arises under federal law.

It is well settled that a cause of action arises under federal

law only when the plaintiff's well-pleaded complaint raises issues

of federal law. H eimann v. Nat'l Elevator Indus. Pension Fund

, 187

F.3d 49 3, 499 (5th Cir. 1999) (citing G ully v. First Nat'l Bank

,

299 U.S. 109 (1936); Louisville & Nashville R.R. Co. v. Mottley

,

2 11 U.S. 149 (1908)). Accordingly, petitions, such as Arana's,

that on their face assert only state law claims generally do not

provide a basis for the exercise of federal question jurisdiction.

In limited circumstances, however, “Congress may so completely preempt a particular area that any civil complaint raising this select

group of claims is necessarily federal in character.” M etro. Life

Ins. Co. v. Taylor

, 481 U.S. 58, 63-64 (1 987). In effect, the

applicatio n of the complete preemption doctrine converts an

ordinary state common law complaint into one stating a federal

claim for purposes of the well-pleaded complaint rule. M cClelland

v. Gronwalt

, 155 F.3d 507, 512 (5th Cir. 1998) (citation omitted).

Because they are recast as federal claims, state law claims that

are held to be completely preempted give rise to federal question

jurisdiction, and thus may provide a basis for removal. Id

.

In particular, certain state law claims that fall within the

scope of ERISA section 502(a), 29 U.S.C. § 1132(a), are completely

preempted and may be r emoved to federal court. See Metro. Life

Ins. Co.

, 481 U.S. at 66; C opling v. Container Store

, Inc.

, 174F.3d 590, 594 (5th Cir. 1999). “Section 502, by providing a civil

enforcement cause of action, completely preempts any state cause of

action seeking the same relief, regardless of how artfully pled as

a state action.” C opling

, 174 F.3d at 594. Complete preemption

under section 502(a) thus is jurisdictional in nature, rather than

an affirmative defense to a plaintiff's claims under state law.

Heimann , 187 F.3d at 500.

Complete preemption must be distinguished in this regard from

ordinary preemption, also known as conflict-preemption. In general

terms, ordinary preemption is a federal defense to the plaintiff's

suit, and may arise either by express statutory term or by a direct

conflict between the operation of federal and state law. I d. at

500. In the context of ERISA, section 514(a) provides for the

ordinary preemption of “any and all State laws insofar as they may

now or hereafter relate to any employee benefit plan” regulated by

that statute. 29 U.S.C. 1144(a). State laws preempted under

section 514 therefore are displac ed by federal law. M cClelland

,

155 F.3d at 516. However, because ordinary ERISA preemption almost

invariably arises as a defense, and thus does not appear on the

face of the plaintiff's well-pleaded complaint, ordina ry ERISA

preemption alone does not authorize removal to federal court. I d .;

see also Heimann , 187 F.3d at 500.

Accordingly, in determining whether OHP properly removed the

instant action to federal court, the disposi tive issue is not

whether ordinary ERISA preemption affords OHP an effective defenseagainst Arana's state law claims. Irrespective of whether Arana's

claims are subject to ordinary preemption pursuant to section 514,

subject matter jurisdictio n will not lie unless, through those

claims, Arana seeks relief available to him under section 502(a). 5

See Bauhaus USA, Inc. v. Copeland, 292 F.3d 439, 442 n.6 (5th Cir.

2002); McClelland

, 155 F.3d 518-19. It is to this inquiry that we

now turn.

B. Arana's Claims under 22:663 and 22:657

Arana seeks two forms of relief in his state court petition.

First, he requests a declaratory judgment to the effect that L A

.

R EV

. S TAT

. 22:663 bars OHP from asserting both its contractual right

of s ubrogation to Arana's state law personal injury cause of

action, and its right to reimbursement from tort settlement funds

pai d to Arana. 6 Secondly, Arana requests statutory penalties

and/or attorney's fees under L A

. R EV

. S TAT

. 22:657 for what he claims

was OHP's wrongful attempt to assert a lien against his tort

settlement and to obtain reimbursement t herefrom of the health

benefits OHP has paid on Arana's behalf.

1. The 22:663 claim

In ruling that Arana's state court action was completely

preempted by ERISA, the district cou rt determined that Arana's

declaratory judgment claim under 22:663 was in fact a claim for

benefits, an d thus fell within the scope of ERISA section

502(a)(1)(B). 7 The district court erred in that regard. It is

undisputed that OHP has paid Arana all of the health benefits duehim under the GHSA between OHP and LeCler Printing. Arana does not

rely on 22:663 in order to seek additional health benefits from

OHP, but rather he requests a declaration that OHP is not entitled

to a portion of his tort recovery. Although OHP has not filed a

formal claim for sub rogation or reimbursement in either state or

federal court, 8 it is OHP that seeks to obtain money from Aran a

,

not vice versa. 9 Arana's claim thus is not one for benefits under

section 502(a). See Blackburn v. Sundstrand Corp. , 115 F.3d 493,

495 (7th Cir. 1997).

OHP's assertion that Arana's 22:663 cause of a ction must be

characterized as a claim for benefits because 22:663 on its face

speaks only to the exclusion or reduction of benefits similarly is

without merit. Arana's cause of action is completely preempted

only if it seeks the same relief as that afforded beneficiaries

under section 502(a), see McClelland

, 155 F.3 d at 518-19, and

Arana's suit simply does not seek health care benefits under the

LeCler plan. OHP argues as a substantive defense that 22:663 does

not apply to circumstances such as those present here, in which a

health plan does not coordinate or otherwise exclu de benefits on

the front end, but rather seeks subrogation or reimbursement on the

back end. Whatever the merits of this defense regarding the scope

o f 22:663, it does not convert Arana's suit challenging OH P's

subrogati on and reimbursement rights into a claim for benefits.

Just as OHP may assert its ordinary preemption defense in state

court, OHP also may argue that 22:663 on its own terms does notapply to subrogation and reimbursement at all. However, if a

federa l defense does not authorize removal to federal court,

Heimann

, 187 F.3d at 500, this state law defense certainly does not

do so.

Finally, as an alternative basis for complete preemption, OHP

also argues that Arana's 22:663 cause of action is within the scope

of 502(a) because through it Arana seeks “to enforce his rights

under the terms of the plan.” This theory draws some support as a

basis for removal from a footnote in the recent Supreme Court

decision Rush Prudential HMO, Inc. v. Moran

, 536 U.S.

___, 122

S.Ct. 2151 (2002).

In Rush Prudential

, an ERISA pl an participant filed a state

court action seeking an order requiring the plan's service provider

to comply with a state independent medical review law. See Moran

v. Rush Prudential HMO, Inc. , 230 F.3d 959, 964 (7th Cir. 2000).

When the service provider sought to remove t he original state

action to federal court, the district court remanded on the ground

that the participant's suit for specific performance of state law

obligations was not completely preempted by ERISA. I d

. The

participant then filed an amended complaint seeking benefits under

the plan, and th e service provider successfully removed this

amended complaint to federal court. I d

. at 965-67. The case later

came before the Supreme Court on rev iew, and the Court in d icta

questioned the propriety of the district court's first remand

order. The Rush Prudential Court specifically stated,a suit to compel compliance with [the state

independent medi cal review law] in the context of

an ERISA plan would seem to be akin to a suit to

compel compliance with the terms of the plan under

29 U.S.C. § 1132(a)(3). Alternatively, the proper

course may have been to bring a suit to recover

benefits due, alleging that the denial was improper

in the absence of compliance with [the state law].

We need not resolve today which of these options is

more consonant with ERISA.

122 S.Ct. at 2157 n.2.

Although this footnote appears to suggest that a cause of

action seeking a declaration that state law trumps plan documents

may be proper ly characterized, in some circumstances, as a

completely preempted claim to enforce the terms of the plan, this

Court is not persuaded that such a characterization is appropriate

under the facts of this case. In the first instance, the Court

notes that the terms of t he LeCler plan are not in the record on

app eal, and it is not clear whether such plan documents exist at

all. The parties apparently take for granted that the terms of the

GHSA between the LeCler plan and OHP, its health care services

provider, are the equivalent of, or are somehow incorporated into,

the plan's terms. The fact that the terms of the LeCler plan are

so immaterial to Arana's claims that they were never introduced

into the record, even when dispositive motions were before the

dis trict court, certainly undermines any argument that Arana's

cause of action is really an artfully pleaded bid to enforce the

terms of his ERISA plan.

Moreover, assuming arguendo that the ter ms of the GHSA are

properly c onsidered to be the terms of the LeCler plan, such anassumption still does not justify characterizing Arana's claim as

one to enforce the plan's terms. Arana does not dispute that the

GHSA affords OHP the subrogation and reimbursement r ights it

claims. Arana in fact concedes that he would owe a portion of his

tort recovery to OHP if the terms of the GHSA were enforced, but he

argues that the relevant provisions in the GHSA are illegal by

operation of 22:663. 10 Although Arana's suit to enforce state law

over the terms of the plan may be “akin” to a suit to enforce the

terms of the plan itself, the fact that a claim is akin to a cause

of action authorized under section 502(a) is not enough to support

a federal claim under ERISA. This latter point recently has been

demonstrated by the Supreme Court itself, which, w hen squarely

c onfronting the issue, has made fine distinctions in order to

determine whether a civil enforcement action is in fact authorized

by ERISA. See Great-West Life & Annuity Ins. Co. v. Knudson , 534

U.S. 204, 122 S.Ct. 708, 714-717 (2002). “ERISA's carefully

crafted and detail ed enforcement scheme provides strong evidence

that Congress did not intend to authorize other remedies that it

simply forgot to incorporate expressly.” Id . at 712 (emphasis in

original) (internal quotations omitted). Congress has not

incorporated into section 502(a) a cause of action to enforce an

arguably saved state law over the terms of an ERISA plan, and this

Court declines OHP's invitation to read this civil enfor cement

mechanism into the statute. 11Because Arana neither relies on 22:663 to seek benefits under

the plan nor seeks to enforce the terms of the plan, his 22:663

cause of action does not fall within the scope of section 502(a)

and is not completely preempted by ERISA. 12

2. The 22:657 claim

L A

. R EV

. S TAT

. 22:657 allows punitive damage awards for an

insurer's arbitrary refusal to pay benefits, and mandates the

payment of attorney's fees when such a refusal occurs. Cramer v.

Ass'n Life Ins. Co.

, 569 So. 2d 533, 538 (L a. 1990). In his

petition, Arana claims that 22:6 57 entitles him to statutory

penalties and attorney's fees for OHP's wrongful assertion of

subrogation and reimbursement rights.

In contrast to 22:657, ERISA's civil enforcement scheme does

not afford plan participants or beneficiaries a mechanism for

obtaining punitive damages and mandatory attorney's fees such as

those sought by Arana. 13 S ee Ramirez v. Inter-Continental Hotels

,

890 F.2d 760, 763-64 (5th Cir. 1989); Sommers Drug Store Co.

Employee Profit Sharing Trust v. Corrigan Enters., Inc. , 793 F.2d

1456, 1463-65 (5th Cir. 1986); Cramer

, 569 So. 2d at 538. Arana's

22:657 claim cannot “arise und er” ERISA for purposes of federal

question jurisdiction if ERISA does not authorize the suit.

Bauhaus

, 292 F.3d at 442 n.6 (citing Franchise Tax Bd. v. Construc.

Laborers Vacation Trust , 463 U.S. 1 (1983); Metro. Life Ins. Co.

,

481 U.S. 58 (1987)). Because section 502 does not authorize the

relief sought in Arana's 22:657 cause of action, that cause ofaction cannot form the basis of federal question jurisdiction.

Id .; see also McClelland , 155 F.3d at 518.

The cases cited by OHP for their holdings that 22:657 is

preempted by ERISA do not warrant a contrary result. Almost all of

the cases addressing the issue hold that 22:657 is subject to

ordinary preemption under ERISA section 514. S ee, e.g., Clancy v.

Employers Health Ins. Co.

, 101 F. Supp. 2d 463, 466-67 (E.D. La.

2000); Chatelain v. S. Baptist Health Sys.

, 907 F. Supp. 206, 208-

12 (E.D. La. 1995); Coles v. Metro. Life Ins. Co.

, 837 F. Supp.

764, 768 (M.D. La. 1993); Cramer

, 569 So. 2d at 537-541. Notably,

many of these cases specifically find that 22:657 is preempted

because it creates an alternative remedy that is not authorized

under ERISA's civil enforcement scheme. E .g., Clancy

, 101 F. Supp.

2d at 467; Cramer

, 569 So. 2d at 538. The fact that a state law

conflicts with ERISA, and thus arguably is subject to ordinary

pree mption, does not authorize removal to federal court. S ee

McClelland

, 155 F.3d at 516; Heimann

, 187 F.3d at 500. In the one

case cited by OHP that determines that a 22:657 cause of action is

completely preempted by ERISA, the district court overlooked this

fundamental point of law. S ee Taylor v. Blue Cross/Blue Shield

,

684 F. Supp. 1352, 1358-59 (E.D. La. 1988).

OHP's argument that ERISA section 502(a) displaces 22:657 is

a defense to Arana's 22:657 claim, and not a basis for converting

Arana's state law claim to one arising under federal law. Such a

conversion would be impossible, as Arana's state law claim forpunitive damages and mandatory attorney's fe es is not authorized

under section 502(a). OHP accordingly must assert this defense, as

well as any other defense it may have to Arana's 22:657 cause of

action, before the state court on remand.

III. CONCLUSION

Arana does not seek relief available under ERISA section

502(a), and accordingly his state law claims under La. Rev. Stat.

22:663 and 22:657 are not completely preempted by federal law. 14

Because subject matter jurisdiction is lacking, we direct that the

instant action be remanded to state court.1. For purposes of this appeal, Arana concedes that the LeCler

employee welfare benefit plan is a plan governed by ERISA.

2. L A

. R EV

. S TAT . 22:663 provides:

Notwithstanding any other provisions in this title

to the contrary, no group poli cy of accident,

health or hospitalization insurance, or of any

group combination of these coverages, shall be

issued by any insurer doing business in this state

which by th e terms of such policy group contract

excludes or reduces the payment of benefits to or

on behalf of an insured by reason of the fact that

benefits have been paid under any other

individually underwritten contract or plan of

insurance for the same claim determination period.

Any group policy provision in vi olation of this

section shall be invalid.

3. La. Rev. Stat. 22:657 provides, in pertinent part:

A. All claims arisin g under the terms of health

and accident contracts issued in this state,

[except claims for accidental dea th], shall be

paid not more than thirty days from the date upon

which written notice and proof of claim, in the

form required b y the terms of the policy, are

furnished to the insurer unless just and

reasonable grounds, such as would put a

reasonable and prudent businessman on guard,

exist. The insurer shall make payment at least

every thirty days to the assured during that part

of t he period of his disability covered by the

policy or contract of insurance during which the

insured is entitled to such payments. Failure to

comply with the provisions of this Section shall

subject the insu rer to a penalty payable to the

insured of double the amount of the hea lth and

accident benefits due under the terms of the

policy or contract during the period of delay,

together with attorney's fees to be determined by

the court. Any court of competent jurisdiction

in the parish where the insured lives or has his

domicile, except a justice of the p eace court,

shall have jurisdiction to try such cases.

In addition to his penalty claim under 22:657, in his original * District Judge of the Southern District of Texas, sitting by

designation.state court petition, Arana also sought penalties under Louisiana's

Unfair Trade Practices and Consumer Protection Law, L A

. R EV

. S TAT

. 51:1401-1420. Arana's unfair trade practices claim has since been

withdrawn, and on appeal OHP does not argue that this claim

supports federal jurisdiction. Accordingly, the withdrawn unfair

trade practices claim will not be addressed further.

4. Arana did not petition the district court to remand the instant

action to state court, and first raised the argument that his

claims were not completely preempted by ERISA only in response to

OHP's motion to dismiss. Nonetheless, we must examine the basis of

our jurisdiction and, if there is doubt, we must address it.

Castaneda v. Falcon

, 166 F.3d 799, 801 (5th Cir. 1999); J ones v.

Collins

, 132 F.3d 1048, 1051 (5th Cir. 1998). Furthermore, when a

action is under our appellate review, this Court also must satisfy

itself that the district court properly exercised jurisdiction.

Heimann v. Nat'l Elevator Indus. Pension Fund

, 187 F.3d 493, 499

(5th Cir. 1999).

5. The parties dispute whether Arana's state law claims are subject

to ordinary preemption. They specifically disagree on the issue of

whether L A

. R EV

. S TAT

. 22:663 and 22 :657 are saved from preemption

by ERISA sect ion 514(b)(2), which states that “[n]othing in this

subchapter shall be construed to exempt or relieve any person from

any law of any State which regulates insurance, banking, or

securities.” 29 U.S.C. § 1144(b)(2)(A). The scope of this

insu r ance “saving clause” is significantly limited by ERISA's

“deemer clause,” which provides that neither an ERISA plan nor any

trust established under such a plan “shall be dee med to be an

insurance company or other insurer, bank, trust comp any, or

investment company or to be engaged in the business of insurance or

banking for purposes of any law of any State purporting to regulate

insurance companies, insurance contracts, banks, trust companies,

or investment companies.” 29 U.S.C. § 1144(b)(2)(B); s ee generally

FMC Corp. v. Holliday , 498 U.S. 52, 60-61 (discussing interaction

of saving clause and deemer clause in ordinary preemption analysis

of state anti-subrogation law).

“Previous panels of this Circuit, exercising great caution, have

used a two-step analysis under both § 514 and § 502(a) in their

complete preemption analysi s.” H eimann

, 187 F.3d at 502

(discussing McClelland ), 155 F.3d at 515-17; see also Copling

, 174

F.3d at 597 n.14 (same). This approach has developed because the

“deliberately expansive” nature of section 514 preemption alm ost

always will encompass claims completely preempted by section 502 as

well. H

eimann, 187 F.3d at 502 (citation omitted). However,

claims such as those asserted in the instant action, which arguably

fall within the ambit of ERISA's insurance saving clause, present

a situation in which the two-step analysis may become problematic.

S ee Rush Prudential HMO, Inc., v. Moran , 536 U.S. ___, 122 S.Ct.

2151, 2165-67 (2002) (discussing conflict under ERISA betweencongressional policies of exclusively federal remedies and the

reservation of insurance regulation to the states). For example,

a plaintiff's cause of action may fall within the scope of section

502, and therefore arise under federal law, even though it is

grounded in a state law rule of decision that, due to the operation

of the saving clause, is not displaced by federal law. See UNUM

Life Ins. Co. v. Ward

, 526 U.S. 358, 376-77 (1999) (applying state

insurance law as rule of decision in section 502 (a)(1)(B) suit to

recover benefits).

In any event, because, as discussed below, the Court finds that

Arana's state law claims are not completely preempted under section

502(a), it may remand without addressing the first step of the

McClelland two-step complete preemption analysis, and without

commenting on th e merits of OHP's ordinary preemption defense.

Copling

, 174 F.3d at 597 n.14. Instead, the merits of this defense

will be a matter for the state court to determine on remand. See

Soley v. First Nat'l Bank of Commerce

, 923 F.2d 406, 410 (5th Cir.

1991).

6. OHP's subrogation and reimbursement claims are based upon the

following provision in the GHSA between OHP and LeCler Printing:

If any Member is injured by an act or omission of a

third party and if such third party and/or any

other third party or ent i ty, including but not

limited to the Member's medical, health and

accident, uninsured/underinsured motorist, school,

and/or no fault insurer(s) (each referred to

hereafter as a “Third Party”), is subsequently

determined to be liable and/or responsible for the

Expenses incurred because of such act or omission

or by contra ct, O/SCHP will be subrogated to, and

may enforce the rights of, the Member against the

Third Party(ies) for such Expenses.

In addition to and notwithstanding the subrogation

rights granted to O/SCHP, by bec oming a Member of

O/SCHP and/or accepting benefits under O/SCHP and

th e provision of health care services by O/SCHP,

including payment of the Expenses, each Member does

hereby assign and shall be deemed to have assigned

to O/SCHP all rights and claims against such Third

Party(ies) for such Expenses, including the right

to compromise claims independently of the Member,

to commence and prosecute any legal proceeding, and

to pursue judgments through collection, in its name

or in the Member's name.

Any settlement, compromise, or release by a Member

in favor of a Third Party, made in violation of theprovisions of this [section], shall be deemed to

include the full amount due O/SCHP, up to the

amount of the settlement, compromise or release,

regardless of whether th e Member receives full or

partial recovery from s uch Third Party, and any

funds received by the Member shall be held in trust

by the Member and/or his atto rney or other

representative and paid to O/SCHP without any

deductions for attorneys' fees or other costs.

At the time the applicable GHSA was issued to LeCler Printing, OHP

was known as Ochsner/Sisters of Charity Health Plan, Inc. (O/SCHP).

Subsequently, the name was changed to Ochsner Health Plan, Inc.

(OHP), which is used in this opinion.

7. Section 502(a)(1)(B) creates a civil enforcement mechanism

whereby an ERISA plan participant or beneficiary is authorized to

bring a civil action “to recover benefits due him under the terms

of his plan, to enforce his rights under the terms of the plan, or

to clarify his rights to future benefits under the terms of the

plan.” 29 U.S.C. § 1132(a)(1)(B).

8. Apparently in support of its claim that the federal courts have

jurisdiction over the instant action, OHP has asserted in a letter

submitted t o the Court under F E D

. R. A PP

. P. 28(j) that ERISA

authorizes OHP to bring suit requesting the imposition of a

constructive trust over that portion of Arana's settlem ent with

United Fire that is being maintained in a trust account by Arana's

attorney. In support of this argument, OHP cites B auer vv. Gytten

, 2002 U.S. Dist. LEXIS 7246 (D.N.D. Apr. 22, 2002) and Admin. Comm.

of the Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan v. Varco

, 2002 U.S. Dist. LEXIS 530 (N.D. Ill. Jan. 14, 2002). However, the

fact that OHP may have a federal cause of action that it has chosen

not to pursue, or even assert as a counterclaim in the instant

action, does not convert Arana's state court declaratory judgment

action to a claim arising under feder al law and thus subject to

complete preemption.

9. Arana's case therefore does not present a situation in which a

participant or beneficiary seeks benefits withheld by an ERISA plan

pursuant to a plan provision authorizing coordination of benefits,

e.g., Clancy v. Employer's Health Ins. Co., 82 F. Supp. 2d 589, 596

(E.D. La. 1999), or in which a participant or beneficiary seeks to

recover benefits she claims were wrongly reimbursed to an ERISA

plan out of funds recovered from a thi rd party, e .g. Carducci v.

Aetna U.S. Healthcare

, 204 F. Supp. 2d 796, 803 (D.N.J. 2002). The

Court need not address whether a claim brought under the

circumstances described in Clancy an d /or Carducci is properly

characterized as a claim for benefits under ERISA section

502(a)(1)(B).10. Arana's claim is in this regard distinguishable from the claim

at issue in the second footnote of the Supreme Court's Rush

Prudential opinion. In R ush Prudential

, the ERISA plan participant

argued that the relevant state law created an extra condition with

which the plan was required to comply in the course of making

benefit determinations. As a result, the participant essentially

claimed that the state law operated to insert additional terms into

the plan. In contrast, Arana asserts that the subrogation and

reimbursement provisions contained in the GHSA are illegal under

22:663, not that 22:663 imposes additional duties on OHP. If the

subrogation and reimbursement provisions are struck from the GHSA,

as Arana asserts that 22:663 requires, the GHSA still will not

afford Arana any affirmative right, enforceable un d er section

502(a)(1)(B), to retain possession of the full amount of his tort

settlement.

Furthermore, Arana's claim is not subject to the alternative

characterization discussed in Rush Prudential 's footnote two,

further limiting the applicability of that footnote to the instant

case. The plaintiff-participant in R ush Prudential had not yet

received all of the health care benefits she claimed were due her

under the terms of the plan, and ultimately sought to obtain

additional benefits upon the completion of the independent medical

review she requested. As discussed above, unlike the plaintiff in

Rush Prudential

, Arana already has received all of the benefits due

him under the terms of the LeCler plan.

11. This Circuit previously has refused to comment on the scope of

complete preemption under section 502(a), and specifically has

refused to address whether the complete preemption doctrine extends

only to claims under section 502(a)(1)(B). S ee Giles v. NYLCare

Health Plans, Inc.

, 172 F.3d 332, 336 n.6; McClelland

, 155 F.3d at

517 n.34. Assuming a rguendo that complete preemption under section

502(a) is not so limited, Arana's 22:663 claim would not fall

within the scope of section 502(a)(3) for the same reasons it

ca nnot be characterized as a suit under section 502(a)(1)(B) to

enforce the terms of the LeCler plan. Section 502(a)(3) authorizes

plan beneficiaries to bring civil enforcement actions only “(A) to

enjoin any act or practice which violates any provision of this

subchapter or th e terms of the plan, or (B) to obtain other

appropriate equ itable relief (i) to redress such violations, or

(ii) to enforce any provisions of this subchapter or the terms of

the plan.” 29 U.S.C. § 1132(a)(3). Even putting aside for a

moment the potentially problematic technical distinctions between

legal and equitable remedies, see Great-West Life & Annuity Ins.

Co.

, 122 S.Ct. at 714-17, Arana alleges that OHP's subrogation and

reimbursement claims violate 22:663, not ERISA and not the terms of

the LeCler plan.

12. The Court notes that on one previous occasion a panel of this

Circuit has assumed jurisdiction and ruled on the merits of a claimseeking, under Mississippi law, relief similar to the declaratory

judgment requested by Arana. S ee Walker v. Wal-mart Stores, Inc.

, 159 F.3d 938 (5th Cir. 19 98) (per curiam). “Even though subject

matter can be raised sua sponte

, we take nothing away from our

failure to do so” in Walker

. Giles , 172 F.3d at 338 n.12.

13. While ERISA does not authorize punitive damages at all, it does

authorize the discretionary award of attorney's fees to a plan

participant or beneficiary. 29 U.S.C. § 1132(g)(1).

14. On appeal, OHP argues for the first time that Arana's class

allegations are preempted by the Medicare Act, 42 U.S.C. § 1395,

and that this Medicare Act preemption provides an additional ground

for the exercise of federal question jurisdiction. OHP did not

raise this issue either in its Notice of Removal or at any time

during which this case was pending before the district court, and

we will not consider it now. In any event, there is insufficient

information in the record to evaluate this claim by OHP, even if we

were to reach its merits.