     Case: 15-10952      Document: 00513452330         Page: 1    Date Filed: 04/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10952                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                             April 5, 2016
LELAND HOWARD,                                                             Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

WILLIAM BURNS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CV-712


Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant William Burns appeals the district court’s order
remanding this case to state court and further requests that this court render
judgment in his favor. Because the district court’s remand order falls squarely
within 28 U.S.C. § 1447’s bar to appellate review, Burns’s appeal is
DISMISSED.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-10952
                                       I.
      This case stems from a car accident between Plaintiff-Appellee Leland
Howard and a drunk driver. As a result of the accident, Howard underwent
surgery, which was performed by Burns and a surgical technician, Kurt Doyle.
Burns and Doyle were then paid by Howard’s employment-related benefit plan.
His benefit plan is governed by the Employee Retirement Income Security Act
(“ERISA”).
      After his surgery, Howard sued and settled with the drunk driver that
caused his injuries. He then claims that the administrator of his benefits plan,
UnitedHealthcare Insurance Company (“UHC”), asserted its right to
subrogation for medical bills paid out of his benefit plan for his surgery.
Around the same time, Howard learned that Burns received $1,087 for his “in
network” services, and Doyle received $7,934.01 for his “out-of-network”
services.
      Unhappy with the extra cost of Doyle’s “out-of-network” services,
Howard filed suit in state court against Doyle, Burns, UHC, and UHC’s
subrogation vendor, Optumhealth Care Insurance Solutions, Inc. (“Optum”),
for deceptive trade practices and seeking a declaratory judgment. The case did
not remain in state court for long: roughly three months after the case was
filed, Burns removed the case to federal court based on federal question
jurisdiction, claiming that all of Howard’s state-law causes of action were
preempted by ERISA.
      After the case was removed to federal court, the fight to return the case
to state court began. The district court denied Howard’s initial motion to
remand, finding that all of Howard’s state-law claims were preempted by




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                                    No. 15-10952
ERISA. 1 Howard then voluntarily dismissed the institutional defendants,
UHC and Optum, as well as his declaratory-judgment claim, and amended his
complaint. The First Amended Complaint named only Doyle and Burns as
defendants; asserted state-law claims of deceptive trade practices, fraud, and
civil conspiracy; and added an ERISA claim “[t]o the extent [the district court]
rule[d] that [Howard’s] state law claims remain preempted in the absence of
an ERISA plan as a party.”
      Following the filing of his amended complaint, Howard again moved to
remand the case to state court. The district court granted the motion, finding
that Howard’s state law claims were no longer preempted by ERISA—
primarily because he dismissed the benefit plan administrator, UHC, from the
suit—and therefore concluded that the court did not have subject-matter
jurisdiction.   Burns filed a timely appeal, challenging the district court’s
remand order and asking this court to enter judgment in his favor.
                                          II.
      We begin our analysis of the district court’s remand order with the text
of 28 U.S.C. § 1447(d): “An order remanding a case to the State court from
which it was removed is not reviewable on appeal or otherwise . . . .” 28 U.S.C.
§ 1447(d). The contours of Section 1447(d) are defined by reading it in pari
materia with Section 1447(c), “so that only remands based on the grounds
specified in the latter are shielded by the bar on review mandated by the
former.” Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229 (2007).
Section 1447(c) provides two bases for remanding cases to state court: (1) a
defect in the removal procedure, and (2) the lack of subject-matter jurisdiction.




      1In a separate order, the court granted Howard leave to amend his complaint to add
an ERISA claim.
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                                       No. 15-10952
See Big Country Vein Relief, L.P. v. Directory Assistants, Inc., 425 F. App’x 287,
289 (5th Cir. 2011); see also 28 U.S.C. § 1447(c).
       Since there is no contention of a defect in the removal procedure—in fact,
the district court initially found that removal was proper—we examine only
whether the district court’s remand order was based on a lack of subject-matter
jurisdiction. Our precedent has simplified this analysis, as “[w]e will only
review remand orders if the district court affirmatively states a non-1447(c)
ground for remand.” Price v. Johnson, 600 F.3d 460, 462 (5th Cir. 2010)
(quoting Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 408 (5th Cir.
1991)). Here, the district court clearly remanded for lack of subject-matter
jurisdiction. The district court’s analysis centered on whether it had subject-
matter jurisdiction over Howard’s state-law claims because of ERISA
preemption—the court ultimately concluded that Howard’s claims “are not
preempted by ERISA and th[e] Court lacks jurisdiction.” 2                   Thus, we are
precluded from reviewing the order, even if it is erroneous. Dahiya v. Talmidge
Int’l, Ltd., 371 F.3d 207, 209 (5th Cir. 2004) (“After a district court remands a
case to state court for lack of subject-matter jurisdiction, 28 U.S.C. § 1447(d)
bars a federal appellate court from reviewing the remand ruling ‘no matter
how erroneous.’” (quoting Arnold v. State Farm Fire & Cas. Co., 277 F.3d 772,
775 (5th Cir. 2001)). 3




       2 Howard did include a federal cause of action in his complaint: an ERISA claim.
However, as the district court explained, “[h]e pled his ERISA claim . . . as contingent on a
holding . . . that his state-law claims are preempted.” Thus, the district court never
considered the claim in its remand analysis.
       3 The ban on appellate review of the remand order applies even though the case was

properly removed in the first instance and the subject matter defect arose after removal. See
Powerex, 551 U.S. at 230 (“Nothing in the text of § 1447(c) supports the proposition that a
remand for lack of subject-matter jurisdiction is not covered so long as the case was properly
removed in the first instance.”).

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                                 No. 15-10952
      Undaunted, Burns argues that two cases—Buchner v. F.D.I.C., 981 F.2d
816 (5th Cir. 1993), and Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d
242 (5th Cir. 2011)—compel the conclusion that review is proper.             He is
mistaken. First, his reliance on Buchner is, at best, misplaced. The court in
Buchner had authority to review the relevant remand order pursuant to 12
U.S.C. § 1819(b)(2)(C), which provides that “[t]he [FDIC] may appeal any order
of remand entered by any United States district court.” 981 F.2d at 818 & n.4.
Burns fails to explain why we should consider him to be in the position of the
FDIC.
      Burns’s reliance on Cuevas is similarly unavailing.       In Cuevas, the
district court declined to exercise jurisdiction over the plaintiff’s state-law
claims after dismissing the only federal cause of action and therefore remanded
the case to state court. 648 F.3d at 247. We considered the appeal under the
well-established rule that a remand order is reviewable if it is based “on an
affirmative exercise of discretion rather than on a finding of lack of
jurisdiction.” Id. at 248 (quoting Adair v. Lease Partners, Inc., 587 F.3d 238,
240 (5th Cir. 2009)); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357
(1988) (“[A] district court has discretion to remand to state court a removed
case involving pendent claims upon a proper determination that retaining
jurisdiction over the case would be inappropriate.”). However, unlike Cuevas,
the district court here was not faced with deciding whether to exercise
supplemental jurisdiction over pendent state law claims. And, as previously
explained, the district court here did not indicate—much less affirmatively
state—that it issued its remand order after an exercise of its discretion.
                                      III.
      For the foregoing reasons, the appeal is DISMISSED.




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