IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10952

Summary Calendar

LELAND HOWARD, 

 Plaintiff - Appellee

v.

WILLIAM BURNS, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:14-CV-712

Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant William Burns appeals the district court’s order 

remanding this case to state court and further requests that this court render 

judgment in his favor. Because the district court’s remand order falls squarely 

within 28 U.S.C. § 1447’s bar to appellate review, Burns’s appeal is 

DISMISSED.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 5, 2016

Lyle W. Cayce

Clerk

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I.

This case stems from a car accident between Plaintiff-Appellee Leland 

Howard and a drunk driver. As a result of the accident, Howard underwent 

surgery, which was performed by Burns and a surgical technician, Kurt Doyle. 

Burns and Doyle were then paid by Howard’s employment-related benefit plan. 

His benefit plan is governed by the Employee Retirement Income Security Act 

(“ERISA”).

After his surgery, Howard sued and settled with the drunk driver that 

caused his injuries. He then claims that the administrator of his benefits plan, 

UnitedHealthcare Insurance Company (“UHC”), asserted its right to 

subrogation for medical bills paid out of his benefit plan for his surgery. 

Around the same time, Howard learned that Burns received $1,087 for his “in 

network” services, and Doyle received $7,934.01 for his “out-of-network” 

services.

Unhappy with the extra cost of Doyle’s “out-of-network” services, 

Howard filed suit in state court against Doyle, Burns, UHC, and UHC’s 

subrogation vendor, Optumhealth Care Insurance Solutions, Inc. (“Optum”),

for deceptive trade practices and seeking a declaratory judgment. The case did 

not remain in state court for long: roughly three months after the case was 

filed, Burns removed the case to federal court based on federal question 

jurisdiction, claiming that all of Howard’s state-law causes of action were

preempted by ERISA. 

After the case was removed to federal court, the fight to return the case 

to state court began. The district court denied Howard’s initial motion to 

remand, finding that all of Howard’s state-law claims were preempted by 

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ERISA.1 Howard then voluntarily dismissed the institutional defendants, 

UHC and Optum, as well as his declaratory-judgment claim, and amended his 

complaint. The First Amended Complaint named only Doyle and Burns as 

defendants; asserted state-law claims of deceptive trade practices, fraud, and 

civil conspiracy; and added an ERISA claim “[t]o the extent [the district court] 

rule[d] that [Howard’s] state law claims remain preempted in the absence of 

an ERISA plan as a party.”

Following the filing of his amended complaint, Howard again moved to 

remand the case to state court. The district court granted the motion, finding 

that Howard’s state law claims were no longer preempted by ERISA—

primarily because he dismissed the benefit plan administrator, UHC, from the 

suit—and therefore concluded that the court did not have subject-matter 

jurisdiction. Burns filed a timely appeal, challenging the district court’s 

remand order and asking this court to enter judgment in his favor.

II.

We begin our analysis of the district court’s remand order with the text 

of 28 U.S.C. § 1447(d): “An order remanding a case to the State court from 

which it was removed is not reviewable on appeal or otherwise . . . .” 28 U.S.C. 

§ 1447(d). The contours of Section 1447(d) are defined by reading it in pari 

materia with Section 1447(c), “so that only remands based on the grounds 

specified in the latter are shielded by the bar on review mandated by the 

former.” Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229 (2007).

Section 1447(c) provides two bases for remanding cases to state court: (1) a 

defect in the removal procedure, and (2) the lack of subject-matter jurisdiction. 

 

1 In a separate order, the court granted Howard leave to amend his complaint to add 

an ERISA claim. 

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See Big Country Vein Relief, L.P. v. Directory Assistants, Inc., 425 F. App’x 287, 

289 (5th Cir. 2011); see also 28 U.S.C. § 1447(c).

Since there is no contention of a defect in the removal procedure—in fact,

the district court initially found that removal was proper—we examine only 

whether the district court’s remand order was based on a lack of subject-matter 

jurisdiction. Our precedent has simplified this analysis, as “[w]e will only 

review remand orders if the district court affirmatively states a non-1447(c) 

ground for remand.” Price v. Johnson, 600 F.3d 460, 462 (5th Cir. 2010) 

(quoting Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 408 (5th Cir. 

1991)). Here, the district court clearly remanded for lack of subject-matter 

jurisdiction. The district court’s analysis centered on whether it had subjectmatter jurisdiction over Howard’s state-law claims because of ERISA

preemption—the court ultimately concluded that Howard’s claims “are not 

preempted by ERISA and th[e] Court lacks jurisdiction.”2 Thus, we are 

precluded from reviewing the order, even if it is erroneous. Dahiya v. Talmidge 

Int’l, Ltd., 371 F.3d 207, 209 (5th Cir. 2004) (“After a district court remands a 

case to state court for lack of subject-matter jurisdiction, 28 U.S.C. § 1447(d) 

bars a federal appellate court from reviewing the remand ruling ‘no matter 

how erroneous.’” (quoting Arnold v. State Farm Fire & Cas. Co., 277 F.3d 772, 

775 (5th Cir. 2001)).3

 

2 Howard did include a federal cause of action in his complaint: an ERISA claim. 

However, as the district court explained, “[h]e pled his ERISA claim . . . as contingent on a 

holding . . . that his state-law claims are preempted.” Thus, the district court never 

considered the claim in its remand analysis.

3 The ban on appellate review of the remand order applies even though the case was 

properly removed in the first instance and the subject matter defect arose after removal. See 

Powerex, 551 U.S. at 230 (“Nothing in the text of § 1447(c) supports the proposition that a 

remand for lack of subject-matter jurisdiction is not covered so long as the case was properly 

removed in the first instance.”).

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Undaunted, Burns argues that two cases—Buchner v. F.D.I.C., 981 F.2d 

816 (5th Cir. 1993), and Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 

242 (5th Cir. 2011)—compel the conclusion that review is proper. He is 

mistaken. First, his reliance on Buchner is, at best, misplaced. The court in 

Buchner had authority to review the relevant remand order pursuant to 12 

U.S.C. § 1819(b)(2)(C), which provides that “[t]he [FDIC] may appeal any order 

of remand entered by any United States district court.” 981 F.2d at 818 & n.4. 

Burns fails to explain why we should consider him to be in the position of the 

FDIC. 

Burns’s reliance on Cuevas is similarly unavailing. In Cuevas, the 

district court declined to exercise jurisdiction over the plaintiff’s state-law 

claims after dismissing the only federal cause of action and therefore remanded 

the case to state court. 648 F.3d at 247. We considered the appeal under the 

well-established rule that a remand order is reviewable if it is based “on an 

affirmative exercise of discretion rather than on a finding of lack of 

jurisdiction.” Id. at 248 (quoting Adair v. Lease Partners, Inc., 587 F.3d 238, 

240 (5th Cir. 2009)); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 

(1988) (“[A] district court has discretion to remand to state court a removed 

case involving pendent claims upon a proper determination that retaining 

jurisdiction over the case would be inappropriate.”). However, unlike Cuevas, 

the district court here was not faced with deciding whether to exercise 

supplemental jurisdiction over pendent state law claims. And, as previously 

explained, the district court here did not indicate—much less affirmatively

state—that it issued its remand order after an exercise of its discretion. 

III.

For the foregoing reasons, the appeal is DISMISSED.

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