The full case caption appears at the
end of this opinion. JERRY E. SMITH, Circuit Judge: The Container Store appeals the remand of Andre Copling’s breach of contract claim. Because Congress has deniedus jurisdiction over appeals from such remands, we dismiss the appeal. I. Copling was an employee of The Container Store, Inc. (“the Store”), which had established a plan that providesemployees and their dependants with medical benefits, one of which is a “flexible benefit” that allows employees todeduct pretax dollars from their paycheck to cover eligible medical expenses. The deducted money is placed in ahealthcare reimbursement account, from which the employee may draw funds for eligible expenses. In compliancewith tax regulations, any unused funds in the account at the end of the plan year must be forfeited. Copling informed the Store that he planned to have some orthodontic work performed. The Store alleges that heentered into a flexible benefit plan providing for the Store to deduct $1,500 from his salary to fund unreimbursedmedical and dental expenses; Copling signed a form, entitled “The Container Store 1995 Flexible Benefit EnrollmentForm,” 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 asimple payroll deduction to fund unreimbursed medical expenses, but the Store gave him an ERISA
[FOOTNOTE 1] health carereimbursement account instead. The Store contends that Copling forfeited the remainder of the money pursuant to theterms of the plan. Copling filed a breach of contract action in state court. The Store removed to federal court and sought summaryjudgment. 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 matterjurisdiction, we have no appellate jurisdiction and thus cannot reach the merits of the conflict preemption issue. A. We must examine the basis of our appellate jurisdiction, sua sponte if necessary. See Castaneda v. Falcon, 166 F.3d799, 801 (5th Cir. 1999); Jones v. Collins, 132 F.3d 1048, 1051 (5th Cir. 1998). Likewise, a district court must inquireinto its jurisdiction, even if the parties have not questioned it. See Free v. Abbott Labs., Inc., 164 F.3d 270, 272 (5thCir. 1999). A well-pleaded complaint raising a federal question provides one basis for subject matter jurisdiction.
[FOOTNOTE 2] B. As we recently explained in McClelland v. Gronwaldt, 155 F.3d 507 (5th Cir. 1998), there are two types of preemptionunder 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.
[FOOTNOTE 3] Thisfunctions as an exception to the well-pleaded complaint rule; “Congress may so completely pre-empt a particular areathat any civil complaint raising this select group of claims is necessarily federal in character.” Metropolitan Life, 481U.S. at 64-65. Section 502, by providing a civil enforcement cause of action, completely preempts any state cause ofaction 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 ofjurisdiction on removal from a state court.
[FOOTNOTE 4] If the plaintiff moves to remand, all the defendant has to do is demonstratea substantial federal claim, e.g., one completely preempted by ERISA, and the court may not remand. Once the courthas 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. See 29 U.S.C. �1144. “State law claims which fall outside the scope of ERISA’s civil enforcement provision, � 502, even if preemptedby � 514(a), are still governed by the well-pleaded complaint rule and, therefore, are not removable under thecomplete-preemption principles established in Metropolitan Life.” Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 355(3d Cir. 1995).
[FOOTNOTE 5] Conflict preemption simply fails to establish federal question jurisdiction. Rather than transmogrifying a state cause ofaction into a federal one, as occurs with complete preemption, conflict preemption serves as a defense to a stateaction.
[FOOTNOTE 6] “When the doctrine of complete preemption does not apply, but the plaintiff’s state claim is arguablypreempted under � 514(a), the district court, being without removal jurisdiction, cannot resolve the dispute regardingpreemption. It lacks power to do anything other than remand to the state court where the preemption issue can beaddressed and resolved.” Dukes, 57 F.3d at 355 (citing Franchise Tax Bd., 463 U.S. at 27-28).
[FOOTNOTE 7] Hence, when a complaint raises state causes of action that are completely preempted, the district court may exerciseremoval jurisdiction; but when a complaint contains only state causes of action that the defendant argues are merelyconflict preempted, the court must remand for want of subject matter jurisdiction. When a complaint raises bothcompletely preempted claims and arguably conflict preempted claims, the district court may exercise removaljurisdiction over the completely preempted claims and supplemental jurisdiction over the remaining claims.
[FOOTNOTE 8] D. 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.
[FOOTNOTE 9] Because conflict preemption does not functionas an exception to the well-pleaded complaint rule, the district court had no federal claims before it at any time. It neverhad valid subject matter jurisdiction. It had an obligation, therefore, to remand immediately. See � 1447(c). The court did not remand immediately; instead, it commented that ERISA conflict-preempted none of the claims andthen remanded.
[FOOTNOTE 10] Nonetheless, the district court did remand pursuant to � 1447(c) because it lacked subject matterjurisdiction. Copling’s remand motion explicitly seeks remand pursuant to � 1447(c). Furthermore, the district courtnoted that it could hear the motion, untimely filed more than thirty days after removal, only because it was based on alack of subject matter jurisdiction. It stated no other ground for the remand. E. Given this background, we must decide whether we have jurisdiction to review the order of remand. We begin with28 U.S.C. � 1447(d), which provides, “An order remanding a case to State court from which it was removed is notreviewable on appeal or otherwise . . . .” Interpreted in pari materia with � 1447(c), this indicates that an appellate courtlacks jurisdiction to review a remand under � 1447(c); conversely, remands on other grounds may be reviewed.
[FOOTNOTE 11] Reviewable non-� 1447(c) remands constitute a narrow class of cases, meaning we will review a remand order only ifthe district court “clearly and affirmatively” relies on a non-� 1447(c) basis. See Soley, 923 F.2d at 409; see alsoTillman v. CSX Transp., Inc., 929 F.2d 1023, 1027 (5th Cir. 1991). Under � 1447(d), we may not review a � 1447(c) remand, based on a putative want of jurisdiction, even if the districtcourt’s remand is plainly erroneous. See Thermtron, 423 U.S. at 351; Angelides, 117 F.3d at 836; Tillman, 929 F.2d at1028; Soley, 923 F.2d at 408. We refuse to review even erroneous remands, “to prevent delay through protractedlitigation of jurisdictional issues.” Id. Although the district court, however briefly and without preclusive effect,mistakenly felt compelled to address conflict preemption, it also properly remanded for want of jurisdiction. We cannotreview this � 1447(c) remand under � 1447(d).
[FOOTNOTE 12] F. The Store seeks to avoid � 1447(d) by arguing that we can review the merits as separable from, and collateral to, theremand. We cannot. In Angelides, 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 in fact, so as to bemade 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 the preclusive effect of being functionally unreviewable in the state court.”Angelides, 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 jurisdiction. 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’ preemption defense and the district court’s order will have no preclusive effect.
Id. [FOOTNOTE 13] The Store offers no ground for distinguishing Soley, and we know of none. [FOOTNOTE 14] The discussion of ERISA conflictpreemption is not a separable, appealable order. Because the district court remanded pursuant to � 1447(c), the appeal is DISMISSED for want of jurisdiction under� 1447(d). CONCURRING OPINION 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) toencourage the state court to which this case is remanded to recognize that counsel for Copling so grosslymischaracterized his client’s cause of action as a state breach of contract claim as to approach frivolousness; themost cursory of looks at the legal document executed by Copling, a competent major, confirms beyond cavil that hevoluntarily signed an enrollment document in a dental plan that is governed exclusively by ERISA, (3) to furnishadditional guidance to the courts and the litigants regarding the interplay of ERISA preemption and the federal removalstatute, and (4) to note the importance of carefully pleading the appropriate type of preemption —- 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 thewell-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 opinioncorrectly notes, not only is there no appellate jurisdiction to review such a remand, but a district court that concludes itlacks jurisdiction necessarily cannot adjudicate on the merits any issue of ERISA conflict preemption. And, as Iobserve below, conflict preemption is the only kind of preemption that the parties have placed before the district courtin this case. Second, I acknowledge the important corollary that, when an action is timely removed under � 1441(a), the districtcourt to which it has been removed does have jurisdiction to decide whether a claim is completely preempted byERISA, thereby making remand improper. Importantly, in considering complete preemption, the district court is not —-I repeat, not —- bound by a plaintiff’s self-serving characterization of his claim; on the contrary, the court candetermine 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 trial judge in this case simply accepted theplaintiff’s characterization of his claim as breach of contract under state law, in a mistaken belief that the court wassomehow bound under the well-pleaded complaint doctrine (which it was not), or if the court just failed to consider anddiscern the true ERISA nature of the plaintiff’s complaint. I am satisfied, however, that the district court was not boundto accept unquestioningly Copling’s allegation that he entered into a contract with his employer separate and apartfrom the very ERISA plan in which he enrolled, expressly and in writing. The court quite properly could haveconsidered whether Copling signed an election to have payroll deductions used to fund his participation in the subjectERISA-covered medical and dental plan (action that the limited record in this case clearly confirms that he took), andcould 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 graceof this misstep is that our colleague on the state bench to which this case is remanded will have ample opportunity tocorrect it. Finally, I would urge the district courts of this Circuit to remain mindful of the important burden they bear as a result ofthe interaction of � 1447 and ERISA preemption: As � 1447(d) does not permit appellate review of a remand orderbased on a conclusion that no complete preemption exists, it is incumbent on the district courts, when consideringremand motions, to decide complete preemption issues with the utmost of care, and —- importantly —- to do sowithout addressing any conflict preemption issue that might remain as an affirmative defense to be resolvedsubsequently, 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 federaldistrict court cannot decide a question of complete preemption unless it is asked to do so by a party —- the courtcannot “lawyer” the case on its own. As, alone, conflict preemption will not sustain removal, it is the responsibility ofcounsel for a defendant who seeks to remain in federal court by meeting its burden of justifying remand, to articulateclearly and with specificity —- and to establish —- a viable argument for complete preemption. Even though acomplete preemption issue clearly lurks in the record of this case, it was not presented to the district court. Thus, thatcourt’s order of remand resolves no preemption issue of any kind. Unless I miss my bet, however, conflict preemptionwill be presented lucidly to the state court on remand, where our learned state colleagues will, I am confident, addressthese matters and decide them correctly. :::FOOTNOTES::: FN1 See the Employee Retirement and Income Security Act of 1974 (“ERISA”), 29 U.S.C. �� 1001 et seq. FN2 See 28 U.S.C. � 1331 (“The district courts shall have original jurisdiction of all civil actions arising under theConstitution, laws, or treaties of the United States.”); see also Louisville & Nashville R.R. v. Mottley, 211 U.S. 149,152-54 (1908) (explaining well-pleaded complaint rule). FN3 As in McClelland, we make no comment on the breadth of ERISA’s complete preemption under � 502(a). SeeMcClelland, 155 F.3d at 517 n.34. FN4 See 28 U.S.C. � 1441 (providing for exercise of removal jurisdiction whenever district court could have exercisedoriginal 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 fallswithin � 502 civil enforcement provision is a federal claim, creating removal jurisdiction). FN5 See also Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23-27 (1983) (holding that preemptionunder � 514(a) does not permit a defendant to remove where the plaintiff’s state claim falls without the scope ofERISA’s civil remedy provisions); McClelland, 155 F.3d at 516. FN6 See Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 408-09 (5th Cir. 1991) (relying on distinction betweencomplete preemption and preemption defense and holding that defense does not confer removal jurisdiction); see alsoRice v. Panchal, 65 F.3d 637, 639-40 (7th Cir. 1995) (noting that if issue is “merely” conflict analysis, it serves only asa defense, and the complaint is not recharacterized as federal). FN7 See also Soley, 923 F.2d at 409 (holding that, because remand after rejection of complete preemption isjurisdictional, 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, thecase shall be remanded”). This assumes that the court lacks an independent basis for original jurisdiction, such asdiversity under 28 U.S.C. � 1332. FN8 See, e.g., Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 241 (5th Cir. 1990) (ensuring that � 502preemption of one claim provides basis for jurisdiction, and then addressing conflict preemption of supplementalclaims). FN9 The Store insists that it has preserved an argument of complete preemption and asks us to decide that issue for thefirst time on appeal. The record does not support the Store’s assertion that it has argued complete preemption allalong. The removal notice discusses only the “relates to” language of ordinary preemption; it does not allege completepreemption. The first amended answer to the complaint raises the affirmative defense of ERISA preemption pursuantto 29 U.S.C. �� 1446 et seq. But complete preemption arises from 29 U.S.C. � 1432, not � 1446; and it is not anaffirmative defense. The Store’s response to the remand motion again discusses the “relates to” standard of ordinary preemption andnowhere mentions complete preemption under � 502; the same is true of the Store’s summary judgment motion.Although we invited the Store to address whether it had raised and preserved a complete preemption argument, theStore has failed to cite a single place in the record where it previously had raised the argument, but rather merelyasserts that the argument is preserved and proceeds to make it. This legerdemain of parlaying an ordinary preemptionargument into a new complete preemption argument does not suffice. FN10 More properly, the court should have remanded without making any further determination; the state court canresolve whether the conflict preemption defense applies. Because the court lacked jurisdiction, its comments onordinary preemption are void and can be ignored by the state court. See 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 lackedsubject matter jurisdiction after deciding it had no federal ERISA claims); Soley, 923 F.2d at 409 (holding that, becauseremand was jurisdictional, court’s statements on substantive ERISA preemption defense would have no preclusiveeffect on state court consideration of the same issue). We likewise make no comment on the merits of the preemptiondefense. FN11 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. FN12 Cf. Bogle, 24 F.3d at 762 (5th Cir. 1994) (dismissing appeal of remand that discussed discretionary factorsbecause the district court had indicated its lack of a federal claim, and noting that “[t]he critical distinction fordetermining appealability is the presence of federal subject matter jurisdiction prior to the order of remand.”). FN13 Cf. Mitchell v. Carlson, 896 F.2d 128, 131-34 (5th Cir. 1990) (reviewing portion of remand order that resubstitutedan individual defendant for the United States, and thus destroyed diversity jurisdiction, because it necessarily precededthe remand and would not be reviewed by the state court). FN14 The Store argues that McClelland’s “two-step inquiry” into complete preemption requires finding ordinarypreemption before addressing whether the claim falls within � 502(a). It then argues that a rejection of an ordinarypreemption defense in this process constitutes a separable, appealable order. The Store’s argument eviscerates� 1447(d)’s limitation on appeals from jurisdictional remands in ERISA preemption cases, making all rejectedpreemption claims appealable whenever the court discusses ordinary preemption. In McClelland, we described complete 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 enforcement provisions.McClelland, 155 F.3d at 517. Because a claim that falls within � 502(a)’s civil enforcement provisions usually, if notalways, also will be preempted by � 514(a), a district court addressing complete preemption in a jurisdictional posturemight address preemption the same way we did in McClelland–assume, arguendo, ordinary preemption and addresswhether the claim falls within the scope of � 502(a). Cf. id. Indeed, the Supreme Court in Metropolitan Life addressedonly � 502, ignoring conflict preemption under � 514. 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 preemptiondefense. But when a court addresses the two prongs sequentially, the ordinary preemption step does not become aseparable, appealable order; it remains part of the jurisdictional analysis. When a court mistakenly feels compelled toaddress ordinary preemption even though complete preemption is not argued, and yet remands for want of subjectmatter jurisdiction, its error is irrelevant, and � 1447(d) denies us jurisdiction on appeal. FN15 See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1997); Hansen v. Continental Ins. Co., 940 F.2d 971, 979(5th Cir. 1991).
ANDRE L. COPLING, Plaintiff-Appellee, v. THE CONTAINER STORE, INC., Defendant-Appellant. No. 98-10042 In the United States Court of Appeals For the Fifth Circuit Appeal from the United States District Court for the Northern District of Texas May 6, 1999 Before DAVIS, SMITH, and WIENER, Circuit Judges.
