Revised May 21, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-10042

_______________

ANDRE L. COPLING,

Plaintiff-Appellee,

VERSUS

THE CONTAINER STORE, INC.,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________

May 6, 1999

Before DAVIS, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Container Store appeals the remand of Andre Co pling's

breach of contract claim. Because Congress has denied us

jurisdiction over appeals from such remands, we dismiss the appeal.

I.

Copling was a n employee of The Container Store, Inc. (“the

Store”), which had established a plan that provides employees and1 See the Employee Retirement and Income Security Act of 1974 (“ERISA”),

29 U.S.C. §§ 1001 et seq.

2 their dependents with medical benefits, one of which is a “flexible

benefit” that allows employees to deduct pretax dollars from their

paycheck to cover eligible medical expenses. The deducted money is

placed in a healthcare reimbursement account, from which the

employee may draw funds for eligible expenses. In compliance with

tax regulations, any unused funds in the account at the end of the

plan year must be forfeited.

Coplin g informed the Store that he planned to have some

orthodontic work performed. The Store alleges that he entered into

a flexible benefit plan providing for the Store to deduct $1,500

from his salary to fund unreimbursed medical and dental expenses;

Copling signed a form, entitled “The Container Store 1995 Flexible

Benefit Enrollment Form,” authorizing these deductions and

providing that any contributions not used during the plan year are

forfeited. Copling was paid $300 from the account for orthodontic

expenses.

Copling argues that he was not informed that any unused funds

would be forfeited. He thought he bargained for a simple payroll

deduction to fund unreimbursed medical expenses, but the Store gave

him an ERISA 1 health care reimbursement account instead. The Store

contends that Copling forfeited the remainder of the money pursuant

to the terms of the plan.

Copling filed a breach of contract action in state court. The2 See 28 U.S.C. § 1331 (“The distr ict courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States.”); s ee also Louisville & Nashville R.R. v.

Mottley , 211 U.S. 149, 152-54 (1908) (explaining well-pleaded complaint rule).

3 Store removed to federal court and sought summary judgment. The

district court granted Copling's motion to remand.

II.

The Store seeks reversal on the ground that Copling's claim is

not subject to the doctrine of conflict preemption. Because we

conclude that the district court remanded because it decided that

it was without subject matter jurisdi ction, we have no appellate

jurisdiction and thus c annot reach the merits of the conflict

preemption issue.

A.

We must examine the basis of our appellate jurisdiction, sua

sponte if necessary. S ee Castaneda v. Fal con , 166 F.3d 799, 801

(5th Cir. 1999); Jones v. Collins , 132 F.3d 1048, 1051 (5th Cir.

1998). Likewise, a district court must inquire into its

jurisdiction, even if the parties have not questioned it. S ee Free

v. Abbott Labs., Inc.

, 164 F.3d 270, 272 (5th Cir. 1999). A wellpleaded complaint raising a federal question provides one basis for

subject matter jurisdiction. 23 As in McClelland

, we make no comment on the breadth of ERISA's complete

preemption under § 502(a). See McClelland , 155 F.3d at 517 n.34.

4 See 28 U.S.C. § 1441 (providing for exercise of removal jurisdiction

whenever district court could have exercised original jurisdiction); 29 U.S.C.

§ 1132(f) (conferring federal jurisdiction over ERISA civil enforcement claims);

see also

, e.g.

, Anderson v. Electronic Data Sys. Corp.

, 11 F. 3d 1311, 1315

(5th Cir. 1994) (holding that state claim that falls within § 502 civil

enforcement provision is a federal claim, creating removal jurisdiction).

4 B.

As we recently explained in McClelland v. Gronwaldt

, 155 F.3d

507 (5th Cir. 1998), there are two types of preemption under ERISA.

First, ERISA may occupy a particular field, resulting in complete

preemption under § 502(a), 29 U.S.C. § 1132(a). See Metropolitan

Life Ins. Co. v. Taylor

, 481 U.S. 58, 66 (1987); McClelland

,

155 F.3d at 516-17. 3 This functions as an exception to the wellpleaded complaint rule; “Congress m ay so completely pre-empt a

particular area that any civil complaint raising this select group

of claims is necessarily federal in character.” M etropolitan Life

,

481 U.S. at 64-65. 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.

Furthermore, because such a claim presents a federal question,

it provides grounds for a district court's exercise of jurisdiction

on removal from a state court. 4 If the plaintiff moves to remand,

all the defendant has to do is demonstrate a substantial federal

claim, e.g. , one completely preempted by ERISA, and the court may5 See also Franchise Tax Bd. v. Constr. Laborers Vacation Trust

, 463 U.S.

1, 23-27 (1983) (holding that preemption under § 514(a) d oes not permit a

defendant to remove where the plaintiff's state claim falls without the scope of

ERISA's civil remedy provisions); McClelland , 155 F.3d at 516.

6 See Soley v. First Nat'l Bank of Commerce

, 923 F.2d 406, 408-09 (5th Cir.

1991) (relying on distinction between complete preemption and preemption defense

and holding that defense does not confer removal jurisdiction); see also Rice v.

Panchal , 65 F.3d 637, 639-40 (7th Cir. 1995) (noting that if issue is “merely”

conflict analysis, it serves only as a defen se, and the complaint is not

recharacterized as federal).

5 not remand. Once the court has proper removal jurisdiction over a

federal claim, it may exercise supplemental jurisdiction over state

law claims, see 28 U.S.C. § 1367, even if it dismisses or otherwise

disposes of the federal claim or claims.

C.

At issue here, however, is conflict preemption, also known as

ordinary preemption, under § 514. S ee 29 U.S. C. § 1144. “State

law claims which fall outside the scope of ERISA's civil

enforcement provision, § 502, even if preempted by § 514(a), are

still governed by the well-pleaded complaint rule and, therefore,

are not removable under the complete-preemption principles

established in Metropolitan Life .” D ukes v. U.S. Healthcare, Inc.

,

57 F.3d 350, 355 (3d Cir. 1995). 5

Conflict preemption simply fails to establish federal question

jurisdiction. Rather than transmogrifying a state cause of action

into a federal one, as occurs with complete preem ption, conflict

preemption serves as a defense to a state action. 6 “When the7 See also Soley

, 923 F.2d at 409 (holding that, beca use remand after

rejection of complete preemption is jurisdictional, district court's comments on

substantive preemption defense are irrelevant); 28 U.S.C. § 1447(c) (stating that

“[i]f at any time before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded”). This assumes that the

court lacks an independent basis for original jurisdi ction, such as diversity

under 28 U.S.C. § 1332.

8 See

, e.g.

, Memorial Hosp. Sys. v. Northbrook Life Ins. Co.

, 904 F.2d 236,

241 (5th Cir. 1990) (ensuring that § 502 preemption of one claim provides basis

f or jurisdiction, and then addressing conflict preemption of supplemental

claims).

6 doctrine of complete preemption does not apply, but the plaintiff's

state claim is arguably preempted under § 514(a), the district

court, being without removal jurisdiction, cannot resolve the

dispute regarding preemption. It lacks power to do anything other

than remand to the state court where th e preemption issue can be

addressed and resolved.” Dukes , 57 F.3d at 355 (citing Franchise

Tax Bd. , 463 U.S. at 27-28). 7

Hence, when a complaint raises state causes of action that are

completely preempted, the district court may exercise removal

juris diction; but when a complaint contains only state causes of

action that the defendant argues are merely conflict preempted, the

court must remand for want of subject matter jurisdiction. When a

c omplaint raises both completely preempted claims and arguably

conflict preempted claims, the district court may exercise removal

jurisdiction over the completely preempted claims and supplemental

jurisdiction over the remaining claims. 8

D.9 The Store insists that it has preserved an argument of complete

preemption and asks us to decide that issue for the first time on appeal. The

record does not support the Store's assertion that it has argued complete

preemption all along. The removal notice discusses only the “relates to”

language of ordinary preemption; it does not allege complete preemptio n. The

first amended answer to the complaint raises the affirmative defense of ERISA

preemption pursuant to 29 U.S.C. §§ 1446 et seq

. But complete preemption arises

from 29 U.S.C. § 1432, not § 1446; and it is not an affirmative defense.

The Store's response to the remand motion again discusses the “relates to”

standard of ordinary preemption and nowhere mentions complete preemption under

§ 502; the same is true of the Sto re's summary judgment motion. Although we

invited the Store to address whethe r it had raised and preserved a complete

preemption argument, the Store has failed to cite a single place in the record

where it previously had raised the argument, but rather merely asserts that the

argument is preserved and proceeds to make it. This legerdemain of parlaying an

ordinary preemption argument into a new complete preemption argument does not

suffice.

10 More properly, the court should have remanded without making any further

determination; the state court can resolve whether the conflict preemp t ion

defense applies. Because the court lacked jurisdiction, its comments on ordinary

preemption are void and can be ignored by the state court. S ee Bogle v. Phillips

Petroleum Co.

, 24 F.3d 758, 762 (5th Cir. 1994) (holding that order granting

partial nonsuit “is void and of no effect” because district court lacked subject

matter jurisdiction after deciding it had no federal ERISA claims); Soley

, 923 F.2d at 409 (hold ing that, because remand was jurisdictional, court's

statements on substantive ERISA preemption defense would have no preclusive

(continued...)

7 The Store contends only that ERISA conflict-preempts Copling's

claim. It nowhere cites § 502, but does cite to § 514(a) and

relies on conflict-preemption arguments and authority. 9 Because

conflict preemption does not function as an exception to the wellpleaded complaint rule, the district co urt had no federal claims

before it at any time. It never had valid subject matter

jurisdiction. It had an obligation, therefore, to remand

immediately. See § 1447(c).

The court di d not remand immediately; instead, it commented

that ERISA conflict-preempted none of the claims and then

remanded. 10 Nonetheless, the district court did remand pursuant to10 (...continued)

effec t on state court consideration of the same issue). We likewise make no

comment on the merits of the preemption defense.

11 See Things Remembered, Inc. v. Petrarca

, 516 U.S. 124, 127-28 (1995);

Thermtron Prods., Inc. v. Hermansdorfer

, 423 U.S. 336, 345-46 (1976); see also

,

e.g.

, Angelides v. Baylor College of Med.

, 117 F.3d 833, 835-36 (5th Cir. 1997);

Soley , 923 F.2d at 407-08.

8 § 1447(c) because it lacked subject matter jurisdiction. Copling's

remand motion explicitly seeks remand pursuant to § 1447(c).

Furthermore , the district court noted that it could hear the

m otion, untimely filed more than thirty days after removal, o nly

because it was based on a lack of subject matter jurisdiction. It

stated no other ground for the remand.

E.

Giv en this background, we must decide whether we have

jurisdiction to review the order of remand. We begin with

28 U.S.C. § 1447(d), which provides, “An order remanding a case to

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

or otherwise

. . . .” Interpreted i n pari materia with § 1447(c),

this indicates that an appellate court lacks jurisdiction to review

a remand under § 1447(c); conversely, remands on other grounds may

be reviewed. 11 Reviewable non-§ 1447(c) remands constitute a narrow

class of cases, meaning we will review a remand order only if the

district court “clearly and affirmatively” reli es on a non-§

1447(c) basis. S ee Soley

, 923 F.2d at 409; see also Tillman v. CSX

Transp., Inc. , 929 F.2d 1023, 1027 (5th Cir. 1991).12 Cf. Bogle

, 24 F.3d at 762 (5th Cir. 1994) (dismissing appeal of remand

that discussed discretionary factors because the district court had indicated its

lack of a federal claim, and noting that “[t]he critical distinction for

determining appealability is the presence of federal subject matter jurisdiction

prior to the order of remand.”).

9 Under § 1447(d), we may not review a § 1447(c) remand, based

on a putative want of jurisdiction, even if the district court's

remand is plainly erroneous. S ee Thermtron

, 423 U.S. at 351;

Angelides

, 117 F.3d at 836; Tillman

, 929 F.2d at 1028; Soley

,

923 F.2d at 408. We refuse to review even erroneous remands, “to

prevent delay through protracted litigation of jurisdictional

issues.” I d

. Although the district court, however briefly and

without precl usive effect, mistakenly felt compelled to address

conflict preemption, it also properly remanded for want of

jurisdiction. We cannot review this § 1447(c) remand under

§ 1447(d). 12

F.

The Store seeks to avoid § 1447(d) by ar guing that we can

review the merits as separable from, and collateral to, the remand.

We cannot. In A ngelides

, we explained that an order is separable,

and hence appealable notwithstanding § 1447(d), if two conditions

are satisfied: “First, it must precede the order of remand in

logic and i n fact, so as to be made while the district court had

control of the case. Second, the order sought to be separated must

be conclusive. An order is conclusive if it will have the13 Cf. Mitchell v. Carlson

, 896 F.2d 128, 131-34 (5th Cir. 1990) (reviewing

portion of remand order that resubstituted an individual defendant for the United

States, and th us destroyed diversity jurisdiction, because it necessarily

preceded the remand and would not be reviewed by the state court).

14 The Store argues that McClelland 's “t wo-step inquiry” into complete

preemption requires finding ordinary preemption before addressing whether the

claim fall s within § 502(a). It then argues that a rejection of an ordinary

preemption defense in t his process constitutes a separable, appealable order.

The Store's argument eviscerates § 1447(d)'s li mitation on appeals from

jurisdictional remands in ERISA preemption cases, making all rejected preemption

claims appealable whenever the court discusses ordinary preemption.

In McClelland

, we described complet e preemption as a “two-prong[ed]

analysis” that requires finding the claim both (1) preempted within the meaning

of § 514 (ordinary preemption) and (2) within § 502(a)'s civil enfo r cement

provisions. M cClelland

, 155 F.3d at 517. Because a claim that falls within

§ 502(a)'s civil enforcement provisions usually, if not always, also will be

preempted by § 514 (a), a district court addressing complete preemption in a

jurisdictional posture might address preemption the same way we did in

McClelland SS assume, arguendo

, ordinary preemption and address whether the claim

falls within the scope of § 502(a). C f

. id

. Indeed, the Supreme Court in

Metropolitan Life addressed only § 502, ignoring conflict preemption under § 514.

(continued...)

10 preclusive effect of being functionally unreviewable in the state

court.” A ngelid es , 117 F.3d at 837 (citations and quotations

omitted); see also Soley , 923 F.2d at 409-10.

The instant order meets neither condition. As we held in

Soley when we dismissed the same argument:

[T]he rejection of an ERISA preemption defense does not

'in logic and in fact' precede a remand order because,

under the 'well-pleaded complaint' rule, a defense does

not confer removal jurisdi ction. Instead, if the

district court considered the preemption defense, it did

so only because of an erroneous belief that the defense

was relevant to the jurisdictional issue

. . . . In this

case,

. . . because we interpret the remand order as

jurisdictional, the state court will have an opportunity

to consider the appellants' pree mption defense and the

district court's order will have no preclusive effect.

Id

. 13 The Store offers no ground for distinguishing S oley , and we

know of none. 14 The discussion of ERISA conflict preemption is not14 (...continued)

See Metropolitan Life , 481 U.S. at 63-66.

If the court finds no preemption under § 502(a), it may remand without

commenting on the ordinary preemption defense. But when a court addresses the

two prongs sequentially, the ordinary preemption step does not become a

separable, appealable order; it remains p art of the jurisdictional analysis.

When a court mistakenly feels compelled to address ordinary preemption even

though complete preemption is not argued, and yet remands for want of subject

matter jurisdiction, its error is i rrelevant, and § 1447(d) denies us

jurisdiction on appeal.

11 a separable, appealable order.

Because the district court remanded pursuant to § 1447(c), the

appeal is DISMISSED for want of jurisdiction under § 1447(d).WIENER, Circuit Judge, specially concurring:

I concur in the foregoing opinion, but I write separately

(1) to emphasize the narrowness of our holding today, (2) to

encourage the state court to which this case is remanded to

recognize that counsel for Copling so grossly mischaracterized his

client’s cause of action as a state breach of contract claim as to

approach frivolousness; the most cursory of looks at the legal

document execut ed by Copling, a competent major, confirms beyond

cavil that he voluntarily signed an enrollment document in a dental

plan that is gove rned exclusively by ERISA, (3) to furnish

additional guidance to the courts and the litigants regarding the

interplay of ERISA preemption and the federal removal statute, and

(4) to note the importance of car efully pleading the appropriate

type of preempt ion —— conflict or complete —— in cases such as

this.

First, in concurring in the foregoing panel opinion, I start

with the observation that we are reaffirming the well-established

principle that 28 U.S.C. § 1447(d) precludes absolutely our review

of a district court’s order that, pursuant to § 1447(c), remands a

case to state court for lack of subject matter jurisdiction. As

the panel opinion correctly notes, not only is there no appellate

jurisdiction to review such a remand, but a district court that

concl udes it lacks jurisdiction necessarily cannot adjudicate on

the merits any issue of ERISA c onflict preemption. And, as I15 See Metropolitan Life Ins. Co. v. Taylor

, 481 U.S. 58, 66

(1997); Hansen v. Continental Ins. Co.

, 940 F.2d 971, 979 (5 th Cir.

1991).

13 observe below, conflict preemption is the only kind of preemption

that the parties have placed before the district court in this

case.

Second, I ack nowledge the important corollary that, when an

action is timely removed under § 1441(a), the district court to

which it has been removed does have jurisdiction to decide whether

a claim is comp letely preempted by ERISA, thereby making remand

improper. Importantly, in considering complete preemption, the

district court is not —— I repeat, n ot

—— bound by a plaintiff’s

self-serving characterization of his claim; on the contra ry, the

court can determine for itself whether in actuality the claim

asserted arises under an employee benefit plan covered by ERISA. 15

I cannot determine with any degree of certainty whether the able

t rial judge in this case simply accepted the plaintiff’s

characterization of his claim as breach of c ontract under state

law, in a mistaken belief that the court was somehow bound under

the well-pleaded complaint doctrine (which it was not), or if the

court just failed to consider and discern the true ERISA nature of

the plaintiff’s complaint. I am satisfied, however, that the

district court was not bound to accept unquestioningly Copling’s

allegation that he entered into a contract with his employer

separate and apart from the very ERISA plan in which he enrolled,14

expressly and in writing. The court quite properly could have

considered whether Copling signed an election to have payroll

deductions used to fund his part icipation in the subject ERISAcovered medical and dental plan (action that the limited record in

this case clearly confirms that he took), and could then have

treated the claim —— as none other than Copling himself elsewhere

characterized it —— as one for “misrepresentation of the terms of

the Plan,” undeniably a claim exclusively grist for the ERISA mill.

The saving grace of this misstep is that our colleague on the state

bench to which this case is remanded will have ample opportunity to

correct it.

Finally, I would urge the district courts of this Circuit to

remain mindful of the important burden they bear as a result of the

interaction of § 1447 and ERISA preemption: As § 1447(d) does not

permit appellate review of a remand order based on a conclusion

that no complete preemption exists, it is incumbent on the district

courts, when considering remand mo tions, to decide complete

preemption issues with the utmost of care, and

—— importantly

—— to

do so without addressing any conflict preemption issue that might

remain as an affirmative defense to be resolved subsequently,

regardless of whether the case is remanded to state court or

retained in federal court. In like manner, lawyers representing

defendants who are relying on ERISA preemption should remain ever

mindful that a federal district court cannot decide a question of

complete preemption unless it is asked to do so by a party —— the15

court can not “lawyer” the case on its own. As, alone, c onflict

preemption will not sustain removal, it i s the responsibility of

counsel for a defendant who seek s to remain in federal court by

meeting its burden of justifying remand, to articulate clearly and

with specificity

—— and to establish

—— a viable argument for

complete preemption. Even though a complete preemption issue

clearly lurks in the record of this case, it was not presented to

the district court. Thus, that court’s order of remand resolves no

preemption issue of any kind. Unless I miss my bet, however,

conflict preemption will be presented lucidly to the state court on

remand, where our learned state col leagues will, I am confident,

address these matters and decide them correctly.