                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                                 No. 93-4115



                              ROXANNE HOOK,

                                                      Plaintiff-Appellee,


                                   versus


                      THE MORRISON MILLING COMPANY,

                                                      Defendant-Appellant.




           Appeal from the United States District Court
                 for the Eastern District of Texas
                           (November 14, 1994)


Before JONES and DEMOSS, Circuit Judges, and COBB,* District Judge.

DEMOSS, Circuit Judge:

     The   Morrison    Milling    Company   ("MMC")   appeals   a   district

court's remand of Roxanne Hook's negligence action against the

company.   MMC argues that Hook's negligence claim is preempted by

the Employment Retirement Income Security Act of 1974 ("ERISA").

29 U.S.C. §§ 1001-1461. Because we conclude that Hook's claim does

not relate to MMC's ERISA plan, and therefore is not preempted, we

affirm the district court's decision to remand Hook's suit to state

court.


     *
      District Judge of the Eastern District of Texas, sitting by
designation.
                                       I.

       Texas' workers' compensation scheme resembles the workers'

compensation schemes of many other states.             The Texas Workers'

Compensation Act ("TWCA"), for example, provides that any benefits

distributed pursuant to the TWCA are an employee's exclusive remedy

for any work-related injuries or death.            TEX. REV. CIV. STAT. ANN.

art. 8308-4.01(a) (Vernon Supp. 1993).1            Texas' scheme, however,

differs from most states' in one important respect: employers may

choose not to carry insurance coverage under the TWCA, id. art.

8308-3.23(a).2        But the state makes that choice an unattractive

one.       Specifically, the TWCA vests employees of non-subscribing

employers with the right to sue their employers for work-related

injuries or death.          Id. art. 8308-3.04.   Furthermore, in any such

action,        the   TWCA   deprives   the   non-subscribing    employer   of

traditional common law defenses such as contributory negligence,

assumption of the risk and the fellow servant rule.            Id. art. 8308-

3.03(a)(1)-(3).

       Notwithstanding the risks associated with "opting out," MMC in

March 1989 elected to discontinue workers' compensation insurance


           1
       The TWCA recently was re-codified. See TWCA, 73rd Leg.,
R.S., ch. 269, § 1 (current version at TEX. LAB. CODE ANN. §§ 401-17
(Vernon Pamp. 1994)). Because none of the recent amendments to the
TWCA are relevant to this case, we will cite to the TWCA as
codified at the commencement of this suit in February 1992.
       2
      As of 1990, Texas, New Jersey, and South Carolina were the
only states that permitted employers to "opt out" of the state's
worker's compensation scheme. The remaining 47 states required
employers to carry worker's compensation insurance.     Ellen S.
Pryor, Compensation and a Consequential Model of Loss, 64 TUL. L.
REV. 783, 801 n.50 (1990).

                                        2
and began offering the Interim Employee Welfare Benefit Plan.                 The

Plan pays enrollees:

      certain benefits for personal injuries suffered in the course
      of their employment, or for death resulting from such
      injuries, without the necessity of showing negligence on the
      part of the Company, and to provide for the continuation or
      partial continuation of their weekly salary or wages that
      would otherwise be lost as a result of their inability to work
      because of injury or illness incurred on the job.

The parties do not dispute that the Plan is governed by ERISA.                See

29 U.S.C. § 1002(1). While participation in the plan is voluntary,

MMC   requires      employees    who   elect   to   participate   to   sign   an

enrollment and waiver form, which is an entirely separate document.

Paragraph 3 of the form states:

      In consideration of my election to enroll in, and thus become
      eligible to receive benefits under, the Interim Plan, I hereby
      waive my rights under TEX. REV. CIV. STAT. ANN. art. 8306, § 4,3
      to bring suit and recover judgment against the Company and its
      directors, officers, agents, and employees for any damages
      sustained by reason of any personal injury received in the
      course of my employment by the Company, or by reason of death
      resulting from such injury.     By electing to enroll in the
      Interim Plan, I agree that benefits payable under the Interim
      Plan shall be the exclusive remedy for me or my legal
      beneficiaries arising from any such personal injury or death.

      Hook began working for MMC in October 1990 after she elected

to participate in the Plan and completed the enrollment and waiver

form.       In December 1990, Hook fell down a staircase at work and was

injured.       Hook filed for benefits under the Plan with MMC, the

Plan's administrator.           The Plan paid her a total of $5,383.03:




        3
      Article 8306, § 4, is the predecessor to articles 8308-3.03
and -3.04, wherein the employee of a non-subscribing employer is
vested with the right to sue that employer for work-related
injuries or death.

                                        3
$4,749.28 for medical expenses and $633.75 for salary continuation

benefits.   Hook then left her job with MMC in July 1991.

     In   February   1992,    Hook   filed   a   wrongful   discharge   and

negligence action in Texas state court against MMC.           MMC removed

the case to federal court, arguing that the wrongful discharge

claim was preempted by ERISA.        Hook then filed her first motion to

remand the case back to state court, which the federal district

court denied in July 1992 on the grounds that ERISA preempted her

wrongful discharge claim.       Hook amended her petition to omit the

wrongful discharge claim, leaving the negligence claim as the sole

basis for her suit.    She again moved to remand the case, claiming

that the negligence action was governed by state law.

     In December 1992, the district court granted Hook's second

motion to remand.     The court addressed two possible grounds for

preemption and rejected them.        First, the court held that Hook's

negligence action is not preempted because it does not relate to

MMC's ERISA Plan. Second, the court concluded that the waiver does

not independently trigger preemption because it is incidental to

her negligence action and that, alternatively, such waivers are

void under Texas law.4       MMC then appealed the court's decision to


      4
       The court specifically relied on the TWCA's proscription
against waivers, which states "an agreement by an employee to waive
the employee's right to compensation is void." TEX. REV. CIV. STAT.
ANN. art. 8308-3.09. The TWCA defines compensation as "payment of
medical benefits, income benefits, death benefits, or burial
benefits." Id. art. 8308-1.03(11). As will be apparent below, we
do not reach the court's alternative holding that the waiver is
void under Texas law because, like the district court, we conclude
that ERISA does not preempt Hook's claim. The question of whether
the waiver is void will be answered by the state court upon remand.

                                      4
remand Hook's negligence action.           Hook did not file a brief on

appeal and instead chose to rely on the district court's opinion as

her brief.     After oral argument, we requested5 the United States

and the State of Texas to submit amicus curiae briefs to address

the significant issues raised in this case, particularly because

Hook did not file a brief.           Amici's briefs were thorough and

helpful, and we thank the United States and Texas for their

assistance.

                                     II.

     Before analyzing our appellate jurisdiction over this appeal,

we first note that the district court's subject matter jurisdiction

was proper at all times.        To begin with, this case was properly

removed pursuant to 28 U.S.C. § 1446.             Hook's original petition

alleged,     inter   alia,   that   she    was   wrongfully   discharged   in

retaliation for filing a workers' compensation claim.           MMC removed

the suit to federal district court, whereupon Hook filed her first

motion to remand.     The district court treated Hook's allegation as

a claim that she was fired in retaliation for filing a claim under

MMC's ERISA plan.6       Accordingly, the court concluded that her

wrongful discharge claim was preempted because the Supreme Court


     5
      See FED. R. APP. P. 29.
         6
        We note that the record supports the district court's
characterization of Hook's original petition as alleging wrongful
discharge for filing a claim under MMC's ERISA plan and not for
filing a workers' compensation claim. First, whereas Hook did, in
fact, file a claim under MMC's plan, she never filed a workers'
compensation claim. Second, to the extent she intended to file a
workers' compensation claim, Hook's efforts would have been
meaningless because MMC's plan is not a workers' compensation plan.

                                      5
has established that ERISA preempts a Texas wrongful discharge

claim to the extent that that claim is dependent upon the existence

of an ERISA plan.       See Ingersoll-Rand Co. v. McClendon, 111 S. Ct.

478, 482-84 (1990) (ERISA expressly preempts a Texas wrongful

discharge claim that is premised on the existence of an ERISA

plan); see also Anderson v. Electronic Data Sys. Corp., 11 F.3d

1311, 1313-14 (5th Cir. 1994) (same).               Because allegations of

retaliation for filing a claim under an ERISA plan necessarily

assert a claim that is dependent upon the existence of such a plan,

MMC's    removal   of    Hook's   claims      was   unquestionably   proper.

Furthermore, Hook's subsequent deletion of her wrongful discharge

claim does not render MMC's removal improper.            We have stated on

several occasions that a post-removal amendment to a petition that

deletes all federal claims, leaving only pendent state claims, does

not divest the district court of its properly triggered subject

matter jurisdiction. Brown v. Southwestern Bell Tel. Co., 901 F.2d

1250, 1254 (5th Cir. 1990); In re Carter, 618 F.2d 1093, 1101 (5th

Cir. 1980).   In a jurisdictional inquiry, we look at the complaint

as it existed at the time the petition for removal was filed,

regardless    of   any    subsequent       amendments   to   the   complaint.

Anderson, 11 F.3d at 1316 n.8.

     The issue of whether we have appellate jurisdiction arises

from the district court's decision to remand the case to state

court.    On the one hand, we do not have jurisdiction to review a

remand order if it is made pursuant to 28 U.S.C. § 1447(c).               In

particular, if a district court remands a case because of either a


                                       6
defect in removal procedure or lack of subject matter jurisdiction,

we are powerless to review that remand order.        28 U.S.C. § 1447(d);

see also Thermtron Prods. v. Hermansdorfer, 423 U.S. 336, 350-52

(1976); Burks v. Amerada Hess Corp., 8 F.3d 301, 303-04 & n.4 (5th

Cir. 1993).     On the other hand, if the court provides a reason

unrelated to § 1447(c), such as pendent jurisdiction, then we may

properly review that order.          We have stated that "a federal

district court has discretion to remand a properly removed case to

state court when all federal-law claims have been eliminated and

only pendent state-law claims remain."          Jones v. Roadway Express,

Inc., 936 F.2d 789, 792 (5th Cir. 1991) (citing Carnegie-Mellon

Univ. v. Cohill, 484 U.S. 343 (1988)).        If the court exercises its

discretion to remand pursuant to this doctrine, then we may review

the remand order.      Carnegie-Mellon, 484 U.S. at 343 n.11 ("the

remand authority conferred by the removal statute and the remand

authority conferred by the doctrine of pendent jurisdiction overlap

not at all").     The district court below made clear that it was

remanding   Hook's   state   law   negligence    claim,    i.e.,   her   only

remaining claim, pursuant to its discretion.              We therefore may

review the court's remand order.         Burks, 8 F.3d at 303-04.

                                   III.

                                    A.

     We begin by establishing the appropriate standard of review.

If a district court's decision to remand a case to state court is

based on its discretion, then we obviously review that decision for

abuse of discretion.    In Re Wilson Indus., 886 F.2d 93, 95-96 (5th


                                     7
Cir. 1989).     The determination of whether the court has that

discretion, however, is a legal one, which we review de novo.

Burks, 8 F.3d at 304.   In this case, we therefore will review the

district court's preemption analysis de novo.        If we conclude that

ERISA does not preempt Hook's suit, meaning no federal claim exists

that would require the district court to maintain jurisdiction, we

then will review the court's decision to remand for abuse of

discretion.

                                    B.

     Section § 514(a) of ERISA, 29 U.S.C. § 1144(a), expressly

provides that ERISA "shall supersede any and all State laws insofar

as they may now or hereafter relate to any employee benefit plan

described in section 4(a) and not exempt under section 4(b)."              The

Supreme Court   has   established    that   "[a]   law    `relates   to'    an

employee benefit plan, in the normal sense of the phrase, if it has

a connection with or reference to the plan."             Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 96-97 (1983).            The Court has further

stated that its interpretation of "relate to" effectuates "the

`deliberately expansive' language chosen by Congress." District of

Columbia v. Greater Washington Bd. of Trade, 113 S. Ct. 580, 583

(1992) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46

(1987)).   Thus, ERISA preempts any state law7 that refers to or has

a connection with an ERISA plan even if that law (i) is not

specifically designed to affect such plans, Shaw, 463 U.S. at 98,

      7
       ERISA § 514(c)(1) defines "state law" to mean "all laws,
decisions, rules, regulations, or other State action having the
effect of law." 29 U.S.C. § 1144(c).

                                    8
(ii) affects such plans only indirectly, Alessi v. Raybestos-

Manhattan, Inc., 451 U.S. 504, 525 (1980), or (iii) is consistent

with ERISA's substantive requirements, Metropolitan Life Ins. Co.

v. Massachusetts, 471 U.S. 724, 739 (1985).         The Supreme Court

reiterated these concepts in FMC Corporation v. Holliday, 111 S.

Ct. 403, 407-09 (1990), when it held that a Pennsylvania statute

which expressly prohibited ERISA plans from subrogating damages

that plan participants had recovered in tort actions arising out of

automobile accidents is preempted.8

        But as broad as ERISA's preemptive scope has been stated to

be, it has its limits.       The Supreme Court noted in Shaw that

"[s]ome state actions may affect employee benefit plans in too

tenuous, remote, or peripheral a manner to warrant a finding that

the law `relates to' the plan."       Shaw, 463 U.S. at 100 n.21.   The

Court's warning in Shaw on the limits of ERISA preemption stems

from the Court's view that ERISA's scope, though comprehensive,

remains subject to the traditional principle of federalism.         In

determining ERISA's preemptive scope, the Court has advised that we

"must be guided by respect for the separate spheres of governmental

authority preserved in our federalist system." Alessi, 451 U.S. at

522; see also Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904


    8
     Our colleague in dissent argues that FMC Corporation controls
this case.   We find that case distinguishable for two reasons.
First, the statute in FMC Corporation expressly referred to ERISA
plans. FMC Corp., 111 S. Ct. at 408. Second, the anti-subrogation
statute triggered ERISA's "savings" and "deemer" clauses. Id. at
409-11 (citing 29 U.S.C. § 1144(b)(2)(A),(B)). Neither of those
circumstances exist with regard to Hook's common law negligence
claim against MMC.

                                  9
F.2d 236, 244 (5th Cir. 1990).    To further aid us in narrowing our

preemption inquiry, we have devised a two-prong test.       We have

found preemption of a state law claim if (1) the claim addresses

areas of exclusive federal concern, such as the right to receive

benefits under the terms of an ERISA plan, and (2) the claim

directly affects the relationship among the traditional ERISA

entities   (i.e.,   plan   administrators/fiduciaries     and   plan

participants/beneficiaries).     Memorial Hospital, 904 F.2d at 245;

see also Sommers Drug Stores Co. v. Corrigan Enterprises, Inc., 793

F.2d 1456, 1467-68 (5th Cir. 1986).

                                  C.

     The United States and Texas contend that Hook's negligence

cause of action does not "relate to" MMC's ERISA plan.9   Both argue

that Hook's cause of action involves only the employer/employee

relationship between the two parties and, therefore, does not

relate to MMC's ERISA plan.    In particular, they argue that Hook's

cause of action stems from MMC's failure to maintain a safe

workplace and not from a dispute over the administration of MMC's

plan or the disbursement of benefits from the plan.    Hook's claim,

in fact, would exist whether or not MMC had established an ERISA

plan.   This case, amici argue, is controlled by Sommers Drug

Stores, 793 F.2d at 1467-68, which involved a suit by an ERISA plan

against its parent company and the company's principal shareholder.


    9
     Amici also raise other arguments against preemption. Because
we find their argument that Hook's claim does not "relate to" MMC's
plan dispositive, we do not reach the validity of amici's
alternative arguments.

                                  10
The shareholder also served as the company's president, a board

member, and a trustee of the company's pension plan.                  The plan,

which was a minority shareholder in the company, alleged that the

defendants breached their fiduciary duties by failing to disclose

material information to the plan, in violation of both ERISA and

common law.     We held that ERISA did not preempt the plan's common

law claim      because     the   claim    affected   not   the   parties'    ERISA

relationship but their relationship as corporate director and

shareholder.      Sommers Drug Stores, 793 F.2d at 1468-70.                    By

comparison, the amici parties argue, Hook's claim affects only the

parties' employer/employee relationship; MMC has an independent

duty to maintain a safe workplace, and Hook alleges that MMC

breached that duty.        While MMC has a parallel duty with regard to

the administration of its ERISA plan, the amici argue, that duty is

unaffected by Hook's common law negligence suit against MMC.

     As for the waiver in MMC's plan, the amici parties insist that

its inclusion in the plan does not alter their analysis.               The mere

fact, they argue, that a court may have to consider, by looking to

the plan, whether Hook has waived her claim does not mean the cause

of action "relates to" MMC's plan.             They argue that Hook's claim,

whether   or    not   it     has   been    waived,    does   not   involve    the

administration of MMC's plan or the disbursement of benefits under

the plan.      Furthermore, they contend, the waiver is nothing more

than a gimmick by MMC to trigger preemption, thereby avoiding

litigation in state court.         The amici rely on Westbrook v. Beverly

Enterprises, 832 F. Supp. 188 (W.D. Tex. 1993), a case remarkably


                                          11
similar to this one.    In Westbrook, a non-subscribing employer

offered an ERISA plan that provided medical benefits for work-

related injuries.   The plan also contained a "waiver-of-right-to-

sue" clause, whereby the employee waived his right to sue for work-

related injuries in exchange for medical benefits.    In rejecting

the employer's preemption claim, the court concluded that neither

the cause of action nor the waiver related to the ERISA plan

because both involved only the employee-employer relationship and

not the administrator-beneficiary relationship.    Id. at 189-92.

Amici urge us to reach the same conclusion.        Otherwise, non-

subscribing employers in Texas could avoid a variety of obligations

merely by requiring employees to waive their right to sue for

anything as a condition for participation in the plan.       Such a

result, they conclude, is inconsistent with the goal of ERISA,

which is "`to protect employee benefits, not to provide succor for

schemes that are designed to take rights from employees.'"   Id. at

192 (quoting Nunez v. Wyatt Cafeterias, Inc., 771 F. Supp. 165, 169

(N.D. Tex. 1991)); see also Texas Health Enters. v. Reece, No. MO-

93-CA-057 (W.D. Tex. Mar. 2, 1994); Pyle v. Beverly Enters.-Texas,

826 F. Supp. 206 (N.D. Tex. 1993); O'Neill v. Pro-Set Press, 1992

WL 404456 (N.D. Tex. 1992).

     MMC's argument that Hook's claim is preempted hinges on the

waiver.   MMC, in other words, bypasses the issue of whether an

unsafe workplace claim, by itself, relates to an ERISA plan and

argues only that the inclusion of the waiver in its plan means

Hook's cause of action is one that necessarily relates to the plan.


                                12
MMC contends that this case is controlled by Christopher v. Mobil

Oil Corporation, 950 F.2d 1209 (5th Cir. 1992).         In Christopher,

the employer sponsored an ERISA retirement plan that permitted

employees, subject to certain criteria, to receive their pension

benefits in one lump-sum payment rather than by the typical method

of monthly installments.     The employer subsequently modified the

plan by changing the criteria that employees had to meet to qualify

for the lump-sum option. The employer, however, failed to disclose

the plan amendment to its employees.    Several employees sued their

former employer.      They alleged that the employer's actions in

amending the plan, and then failing to disclose the new terms of

the plan, fraudulently induced them to retire earlier than they

otherwise would have and, therefore, violated state common law.

     We noted that a court, in addressing the employees' claims,

"would have to examine, at a minimum, the operation of the plan

prior to the amendment."      Id. at 1218.     The employees' claim

therefore   closely    resembled    employee   claims     of   wrongful

termination, wherein the employee asserts that the employer fired

him to avoid vesting of pension befits. Id. (citing Ingersoll-Rand

Co. v. McClendon, 111 S. Ct. 478 (1990)).      We concluded that, in

both instances, the employees' common law claims were preempted,

i.e., the claim relates to an ERISA plan, "[b]ecause the underlying

conduct at issue here cannot be divorced from its connection to the

employee benefit plan."    Id. at 1220. MMC insists that Christopher

controls this case because a court considering Hook's claim will

have to "examine" MMC's plan.      The waiver, which is an integral


                                   13
part of the plan, is also a significant factor in determining the

validity of Hook's claim, MMC argues.                Thus, while an unsafe

workplace claim may otherwise be unrelated to an ERISA plan, MMC

concludes, the claim necessarily relates to the plan once a court

has to consider whether Hook has waived her claim, evidence of

which is included in the plan.

     In addition to Christopher, MMC relies on a Sixth Circuit

opinion to argue that mere consideration of the waiver by a court

triggers preemption.      Van Camp v. AT&T Info. Sys., 963 F.2d 119

(6th Cir. 1992).        In Van Camp, an employee, who refused to be

reassigned, was faced with the option of either retiring early or

being demoted.      The    employee   chose    to    retire,   whereupon    the

employee signed a statement saying he was retiring voluntarily and

that he understood that his election to retire under the employer's

ERISA pension plan was irrevocable.           The employee later sued the

employer, alleging that the employer's efforts to reassign him were

discriminatorily motivated and, therefore, violated state laws

against discrimination. Without relinquishing his rights under the

pension   plan,   the   employee    sought    back    pay,   front   pay,   and

compensatory and exemplary damages.

     The Sixth Circuit, relying in part on our decision in Sommers

Drug Stores, held that the employee's claims were preempted.                Van

Camp, 963 F.2d at 122-24.          The court began by noting that the

employee's state law claims obviously were inconsistent with the

retirement agreement: the employee claimed he was discriminatorily

forced into retirement, whereas the plan indicated that he had


                                      14
voluntarily retired.         Thus, the court reasoned, the determination

of whether the employer's ERISA plan was valid became the "fulcrum"

upon which the case turned.              Id. at 123.        Because "[s]uch a

determination could be made only with reference to ERISA and would

affect the existing benefit plan and the relations between [the

employee and the employer] as `principal ERISA entities,'" the

Sixth Circuit concluded that the claims related to the plan and

therefore were preempted.             Id. (indirectly quoting Sommers Drug

Stores, 793 F.2d at 1467).               MMC maintains that Hook's claim

similarly    relates    to    its     ERISA   plan    in   that    her    claim    is

inconsistent with the plan.            To consider her claim, a court must

determine the validity of MMC's plan and its waiver.                     MMC argues

that, as the Sixth Circuit concluded, such a determination involves

the relationship between ERISA entities and thus comes within

ERISA's preemptive sweep.

       We agree with amici that Hook's claim, standing alone, is not

preempted by ERISA because it affects only her employer/employee

relationship    with    MMC     and    not    her    administrator/beneficiary

relationship with the company.                In this sense, the claim is

distinctly different from various other common law claims found to

be preempted by ERISA. In Ingersoll-Rand, for example, an employee

sued   his   employer   for    wrongful       discharge,    alleging      that    the

employer fired him to avoid making contributions to his ERISA-

covered pension fund.         The Court ruled that the employee's claim

was preempted because it "makes specific reference to, and indeed

is premised on, the existence of a pension plan."                 Ingersoll-Rand,


                                         15
111 S. Ct. at 483.    Similarly, Christopher, the case on which MMC

relies, involved common law claims alleging that the employer

improperly administered the company's ERISA plan.                 The claims

clearly stemmed from the existence of an ERISA plan, such that "if

the appellants' claims were stripped of their link to the pension

plans, they would cease to exist."        Christopher, 950 F.2d at 1220;

see also Pilot Life, 481 U.S. at 47-48 (contract and tort claims

alleging improper processing of ERISA benefits); Metropolitan Life

Ins. v. Taylor, 481 U.S. 58, 62-63 (1987) (same); Memorial Hosp.,

904 F.2d at 239, 250 (contract claim alleging improper denial of

ERISA benefits); Lee v. E.I. DuPont de Nemours & Co., 894 F.2d 755,

756-58 (5th Cir. 1990) (tort claim alleging misrepresentation of

details of ERISA plan); Ramirez v. Inter-Continental Hotels, 890

F.2d 760, 762-63 (5th Cir. 1989) (contract, tort, and statutory

claims alleging improper denial of benefits); Cefalu v. B.F.

Goodrich Co., 871 F.2d 1290, 1292-95 (5th Cir. 1989) (contract

claim alleging improper denial of benefits); Degan v. Ford Motor

Co., 869 F.2d 889, 893-95 (5th Cir. 1989) (same).

     Hook's unsafe workplace claim, however, is totally independent

from the existence and administration of MMC's ERISA plan.                She

neither   seeks   benefits   under    the   plan   nor   claims    that   MMC

improperly processed her claim for benefits.              She seeks only

damages for MMC's alleged negligent maintenance of its workplace.

Numerous federal district courts in Texas that have concluded that

a tort claim alleging an unsafe workplace does not relate to an

ERISA plan.   See e.g., Westbrook v. Beverly Enters., 832 F. Supp.


                                     16
188 (W.D. Tex. 1993); Pyle v. Beverly Enters.-Texas, 826 F. Supp.

206 (N.D. Tex. 1993); Gibson v. Wyatt Cafeterias, 782 F. Supp. 331

(E.D. Tex. 1992); O'Neill v. Pro-Set Press, 1992 WL 404456 (N.D.

Tex. 1992); Nunez v. Wyatt Cafeterias, 771 F. Supp. 165 (N.D. Tex.

1991).        In our view, Hook's claim is even further removed from

ERISA's preemptive reach than other common law claims which somehow

involved an ERISA plan but nonetheless did not relate to it.                     In

Sommers Drug Stores, for example, the ERISA plan itself sued the

parent company and the company's principal shareholder for breach

of fiduciary duty.         We noted that although the claim seemed to

affect        relations   among     the   principal      ERISA    entities,   that

appearance was misleading.           Sommers Drug Stores, 793 F.2d at 1468.

The claim, we found, actually centered on relations between a

corporate director and a shareholder and thus was not preempted.

Likewise, in Memorial Hospital, a hospital sued an insurance

company        for   breach    of     contract     as     well     as   negligent

misrepresentation.10          We    concluded    that,    while   the   breach   of

contract claim clearly was preempted because it was a claim for

benefits, the negligent misrepresentation claim was not preempted

because it neither sought benefits under the plan nor alleged

         10
        The hospital specifically alleged that an agent for the
insurance company informed the hospital that the wife of an
employee of the insured company was, in fact, covered by the
insured's policy.       The hospital relied on this alleged
representation and treated the employee's wife. The employee then
transferred to the hospital his rights to benefits under the
policy. The hospital, in turn, sought payment from the insurance
company, but the insurance company informed the hospital that the
employee's wife was not covered and denied the claim. The hospital
then filed its suit against the insurance company. Memorial Hosp.,
904 F.2d 238-39.

                                          17
improper processing of benefits.      Memorial Hosp., 904 F.2d at 243-

50; see also Hartle v. Packard Elec., 877 F.2d 354 (5th Cir.

1989).11   Thus, ERISA's preemptive scope may be broad but it does

not reach claims that do not involve the administration of plans,

even though the plan may be a party to the suit or the claim relies

on the details of the plan.

     Admittedly,   the   presence    of   the    waiver    in    this   case

complicates the issue of whether Hook's claim is preempted.             Amici

charge that this complication was intended.         Specifically, amici

claim that MMC, by including the waiver in its plan, is attempting

to avoid state court litigation simply by "don[ning] the mantle of

ERISA preemption."    Combined Management v. Superintendent of the

Bureau of Ins., 22 F.3d 1, 5 (1st Cir. 1994).             Amici also claim

that MMC's strategy, if successful, would undermine the viability

of the Texas workers' compensation system, because Texas employers

would have a greater incentive to opt out and defend themselves in

federal court rather than opt in to Texas' system.              MMC responds

that their motive is not so sinister.           Rather, MMC argues, the

structure of its plan represents a reasonable accommodation between

a non-subscribing employer and its employee.        In exchange for the

     11
      Hartle involved an employee who sued his former employer for
various tort claims arising out of his termination. He alleged
that he had a fixed-term employment contract and therefore could
not be fired at will. To prove his case, he relied on certain
details in the employer's ERISA plan, to which he had contributed.
We concluded that the employee's claim "does not in any manner
implicate the federal regulation of employee benefit plans" because
the employee neither sought benefits nor alleged improper
processing. Id. at 356. Though an ERISA plan was at issue, the
employee's claim was only "peripherally connected to the concerns
addressed by ERISA." Id.

                                    18
employee's agreement not to sue, the employer offers workers'

compensation-like benefits without the cost of complying with state

regulations.    Whatever MMC's motive may be, our conclusion that

Hook's negligence cause of action is not preempted rests on our

reading of ERISA and the numerous Supreme Court and Fifth Circuit

cases interpreting it.     We agree with amici that the waiver in

MMC's plan does not transform Hook's claim into one that is

preempted.    By focusing on the waiver, MMC turns ERISA preemption

analysis on its head; it argues that Hook's cause of action is

preempted because the waiver, as part of the plan, relates to

Hook's claim.     Instead, the appropriate question in any ERISA

preemption case is whether the state law relates to an ERISA plan.

29 U.S.C. § 1144(a).   MMC's inverted analysis cannot be reconciled

with either ERISA's statutory language or the case law interpreting

it.      More importantly, MMC's analysis would lead to a broad

expansion of employer authority that we believe has no basis in

ERISA.     Specifically, MMC's analysis would enable employers to

avoid any state law simply by referring to that law in its ERISA

plan.    Congress clearly did not intend to vest employers with such

authority.     To the contrary, ERISA was "designed to promote the

interests of employees and their beneficiaries in employee benefit

plans."    Shaw, 463 U.S. at 90.

      The Ninth Circuit, in Employee Staffing Services v. Aubry, 20

F.3d 1038 (9th Cir. 1994), rejected a similar attempt to broaden

employers' authority under ERISA.       In   Employee Staffing, the

employer had argued that California's attempts to enforce its


                                   19
workers' compensation statute were preempted because the employer

had already included benefits for work-related injuries in its

ERISA plan.    In rejecting the employer's arguments, the Ninth

Circuit reasoned:

     Syntactically, the preemption of "laws" and exemption of
     "plans" might be construed to place the power to exempt in the
     employer's hands, when it adopts a plan, instead of the state
     legislature's hands, when it promulgates laws.          But a
     construction which attributes a rational purpose to Congress
     makes this locus of power unlikely, because it would
     accidentally allow employers to avoid the century-old system
     of workers' compensation."

Id. at 1041.   While Employee Staffing involved ERISA's exemption

for workers' compensation, we concur with its reasoning that ERISA

was not enacted to allow employers to control which laws or claims

are preempted and those that are not.   With the exception of Van

Camp, 963 F.2d at 122-24, we find no authority for the proposition

that a law or claim is preempted merely because the employer crafts

its ERISA plan in such a way that the plan is inconsistent with

that law or claim.      We decline to follow the Sixth Circuit's

analysis in Van Camp.

     Instead, we choose to adhere to our traditional mode of

analysis, as prescribed in ERISA § 514(a): a law or claim is

preempted when it relates to an ERISA plan, and not the reverse.12


       12
        Our colleague in dissent disagrees with our analytical
framework because we focus solely on the negligence claim and not
the fact that it squarely conflicts with a provision in MMC's plan.
Again, we point out that § 514(a) requires us to do as we have
done. We do not dispute our colleague's contention that Hook wants
to have her cake and eat it, too. But we are not assigned the role
of spoiler. A state court may perform that function upon remand if
that court is persuaded, as our colleague asserts, that the waiver
is enforceable under Texas law.

                                20
The Supreme Court cautioned that our ERISA preemption analysis

"must be guided by respect for the separate spheres of governmental

authority preserved in our federalist system." Alessi, 451 U.S. at

522.    If we were to conclude that ERISA vests employers with the

type of authority MMC contemplates, we would be disregarding the

Supreme Court's cautionary advice in Alessi, because the practical

implications of such a conclusion are serious.          If an employer, for

example, crafts an ERISA plan that conditions eligibility on

employees   waiving   their   right    to   sue   the   employer   for   gross

negligence or intentional torts and an employee subsequently sues

the employer for assault and battery, the employee's suit would be

preempted, even though the suit has nothing to do with the ERISA

plan.    Congress' quest for uniform regulation of employee benefit

plans could not have included the intent to permit employers to

disable the states from prosecuting unrelated common law causes of

action such as the assault claim in this hypothetical or Hook's

claim, which is based on Texas common law dating back to the last

century.    See International & Great R.R. Co. v. Doyle, 49 Tex. 190

(1878).

       As we stated in Memorial Hospital, "`[a] preemption provision

designed to prevent state interference with federal control of

ERISA plans does not require the creation of a fully insulated

legal world that excludes these plans from regulation of any purely

local transaction.'"     Memorial Hosp., 904 F.2d at 250 (quoting

Rebaldo v. Cuomo, 749 F.2d 133, 138 (2d Cir. 1984)).                In other

words, ERISA was not meant to consume everything in its path.              In


                                      21
Shaw, the Supreme Court "express[ed] no views about where it would

be appropriate to draw the line" between those claims that are too

tenuous or remote to warrant preemption and those that are not.

Shaw, 463 U.S. at 100 n.21.   In this case, we draw the line here:

a common law negligence claim which alleges only that an employer

failed to maintain a safe workplace does not "relate to" an ERISA

plan merely because the employer has inserted a waiver of the right

to bring such a claim into its ERISA plan.13

                                  D.

     Having concluded that the district court properly determined

that ERISA does not preempt Hook's negligence cause of action

against MMC, we now turn to the district court's discretionary

decision to remand the case to state court.     Given that we accord

district   courts   significant   deference   when   reviewing   their

decisions for abuse of discretion, Thomas v. Capital Sec. Servs.,

Inc., 836 F.2d 866, 883-84 (5th Cir. 1988) (en banc), we find no

reason to disturb the court's decision to remand Hook's suit to

state court.

                                  IV.

     We hold that Hook's common law negligence suit against MMC,

which alleges only that MMC maintained an unsafe workplace, does

not relate to MMC's ERISA plan and therefore is not preempted by



    13
      Our holding is consistent with the holding the United States
recommends in its amicus brief. The brief, it should be pointed
out, was authored by the Department of Labor, the federal agency
charged with primary jurisdiction over enforcing employee benefit
rights.

                                  22
ERISA. We AFFIRM the district court's decision to remand this case

to district court.




                               23
No. 93-4115 -- Hook v. The Morrison Milling Co.

EDITH H. JONES, Dissenting:

            With due respect to my colleagues, I disagree with their

conclusion that Ms. Hook's negligence claim against her employer

Morrison Milling Co. was not preempted by her participation in the

employer's ERISA benefits plan.           I therefore dissent.

             Texas is among a handful of states that do not require

its employers      to   furnish   state-mandated      worker's     compensation

coverage.     Morrison Milling availed itself of the privilege of

being a     nonsubscriber,     but   it    also   sought   to   compensate   its

employees for their on-the-job injuries.              To do so, the company

established an ERISA welfare benefits plan and permitted, but did

not require, employees to enroll in that plan.                  Under the plan,

they would receive benefits for on-the-job injuries comparable to

or better than those under the state program simply by proving that

an on-the-job injury occurred.            In exchange for the certainty and

promptness of payment of benefits, however, the employees were

asked to sign a waiver of right to sue the employer under the Texas

Workers' Compensation Act.14

            Hook liked the plan's provision for benefits, which she

collected after falling down a staircase at work.               She did not like

the waiver of right to sue, however, so she also filed suit against

Morrison Milling for negligence.




      14
            Under Texas law, an employee may sue a nonsubscriber to state workers
compensation and his employer may not take advantage of common law defenses.

                                       24
           This sequence of events should make it obvious why the

majority is wrong in concluding that Hook's lawsuit does not

"relate to" an ERISA plan for purposes of federal preemption.   If

all of Morrison's employees tried to have their cake and eat it by

collecting benefits and then suing Morrison Milling, Morrison

Milling could not afford the luxury of providing its welfare

benefit plan.    The plan is a substitute for, not a vehicle to

finance employee litigation.

           Not only is the waiver of right to sue economically

essential to Morrison Milling's plan, but Hook's claim legally

"relates to" the plan by challenging the enforceability of that

waiver. I cannot follow the majority's assertions to the contrary.

First, the majority states that, taken alone, Hook's claim against

her employer based on an unsafe workplace would not be preempted.

This might well be true in the absence of a waiver.   The majority

then opines that even considering the waiver, the question is not

whether Hook's claim "is preempted because the waiver, as a part of

the plan, relates to Hook's claim.       Instead, the appropriate

question . . . is whether the claim or law relates to an ERISA

plan."   Apparently, one should focus only on the negligence claim,

ignoring that it squarely conflicts with a provision of this ERISA

plan. This logic is rather like a borrower's accepting money under

a promissory note and asking the court to ignore its reference to

a security agreement.

           Without parsing the majority's analysis further, I think

they have simply overlooked the breadth of the ERISA preemption


                                 25
doctrine, and in particular, the significance of the Supreme

Court's holding in FMC Corp. v. Holliday, 498 U.S. 52, 111 S. Ct.

403 (1990).       The Court held in FMC that a subrogation clause by

which an employee agreed to reimburse the ERISA plan for benefits

paid if the employee recovered on a claim in a liability action

against    a    third    party   preempted        Pennsylvania's        Motor   Vehicle

Financial Responsibility Law. That state law purported to override

any right of subrogation of a tort recovery in a motor vehicle

accident.      111 S. Ct. at 406.          The Supreme Court reasoned that the

anti-subrogation law had a "connection to" the ERISA plan because

it "prohibits plans from being structured in a manner requiring

reimbursement in the event of recovery from a third party."                       Id. at

408.      Neither       the   amici    nor    the   majority      have    in    my   view

successfully distinguished FMC Corp. from this case. In FMC Corp.,

the injured ERISA beneficiary surrendered his right to sue free of

subrogation rights to the ERISA plan, whereas in this case, the

injured party has ostensibly surrendered her right to sue for work-

related    injuries.          None    of   the    cases   cited    by    the    majority

concerning the nature or extent of an "ERISA relationship" for

purposes of preemption analysis is relevant here; Hook's claim

directly draws into question the enforceability of the plan's

waiver of right to sue.

               Like the majority, I reach this conclusion without having

expressly to decide whether the waiver of right to sue would be




                                             26
enforceable, although I have concluded that if Texas law governs

this question, it ought to be enforceable.15

            Moreover, I am not particularly pleased to reach the

conclusion that these matters are preempted by federal law.                  ERISA

contains an explicit exemption          for welfare benefit plans that are

maintained to comply with state workers' compensation laws, and, as

noted above, ERISA leaves unaffected the mandatory compensation

schemes of nearly all the states.               Had the ERISA statute been

drafted differently, it might easily have excluded the plans

promulgated     by   non-subscribers      to   Texas'     compensation    scheme.

There are strong policy reasons for preferring state regulation of

on-the-job     injury    claims    to   the    indirect    regulation    that    is

accomplished through federal monitoring of ERISA plans.                  Finally,

to hold that claims such as Hook's are preempted by the terms of

this ERISA plan is to impose a heavy burden on federal courts.




     15
             Both federal and state cases have held that a nonsubscriber may require
a release from an employee as a condition of receiving insurance benefits. Collier
v. Allstate Ins. Co., 395 F.2d 719 (5th Cir. 1968); Tigrett v. Heritage Bldg. Co.,
533 S.W.2d 65 (Tex. Civ. App.--Texarkana 1976 writ ref'd n.r.e); Employers Mutual
Casualty Co. v. Poorman, 428 S.W.2d 698 (Tex. Civ. App.--San Antonio 1968, writ
ref'd n.r.e.); United States Fidelity & Guaranty Co. v. Valdez, 390 S.W.2d 485 (Tex.
Civ. App.--Houston 1965, writ ref'd n.r.e.). One Texas case cites these authorities
and then holds that a waiver is "against public policy" unless it expressly
precluded the employer's reliance on common law defenses. Hazelwood v. Mandrell
Industries, Inc., 596 S.W.2d 204, 206 (Tex. Civ. App.--Houston 1980). Because the
coverage in Hazelwood required proof of negligence, whereas this plan does not,
Hazelwood is distinguishable.
             More recently, the Beaumont Court of Appeals held that a waiver of the
right to sue the employer for negligence, contained in an ERISA benefits plan
offered by a nonsubscriber to Texas workers compensation, was void and against
public policy. Texas Health Enterprises, Inc. v. Kirkgard, 882 S.W.2d 630 (Tex.
App.--Beaumont 1994). Even if this decision is correct, in light of the above-cited
authorities, the case is distinguishable from the one before us. First, the waiver
in that case was involuntary, whereas participation in Morrison Milling's ERISA plan
is voluntary. Second, unlike Ms. Hook, appellees in that case did not seek benefits
under the employer's plan.

                                        27
                But despite my unease with this conclusion, I cannot

overlook the breadth of ERISA preemption and the applicability of

FMC Corp. v. Holliday in this case.

                I respectfully dissent.




wjl\opin\93-4115.opn
jwl                                  28
