                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
        REVISED OCTOBER 31, 2002    September 17, 2002
IN THE UNITED STATES COURT OF APPEALS
                                                             Charles R. Fulbruge III
                                                                     Clerk
             FOR THE FIFTH CIRCUIT




                       _______________

                         m 01-10831
                       _______________


                       ROBERT ROARK;
                       ROBERT ROARK,
            ON BEHALF OF THE ESTATE OF GWEN ROARK,


                                  Plaintiffs-Appellants,

                           VERSUS

                    HUMANA, INC.;
           HUMANA HEALTH PLAN OF TEXAS, INC.,
   DOING BUSINESS AS HUMANA HEALTH PLAN OF TEXAS (DALLAS),
 DOING BUSINESS AS HUMANA HEALTH PLAN OF TEXAS (SAN ANTONIO),
DOING BUSINESS AS HUMANA HEALTH PLAN OF TEXAS (CORPUS CHRISTI);
                 HUMANA HMO TEXAS, INC.,

                                  Defendants-Appellees.


                   ***************
               _______________

                 m 01-10891
               _______________

              RUBY R. CALAD,

                          Plaintiff-Appellant-
                          Cross-Appellee,

          WALTER PATRICK THORN,

                          Plaintiff-Cross-Appellee,

                  VERSUS

CIGNA HEALTHCARE OF TEXAS, INCORPORATED,
       DOING BUSINESS AS HEALTHSOURCE,
     DOING BUSINESS AS CIGNA CORPORATION,

                          Defendant-Appellee,

         AETNA U.S. HEALTHCARE;
AETNA U.S. HEALTHCARE OF NORTH TEXAS, INC.,

                          Defendants-Appellees-
                          Cross-Appellants.




           ***************
                                           _______________

                                             m 01-10905
                                           _______________

                                            JUAN DAVILA,

                                                                Plaintiff-Appellant,

                                                VERSUS

                            AETNA U.S. HEALTHCARE, INC.;
                     AETNA U.S. HEALTHCARE OF NORTH TEXAS, INC.,

                                                                Defendants-Appellees.


                                    _________________________

                            Appeals from the United States District Court
                                 for the Northern District of Texas

                                    _________________________




Before SMITH, BENAVIDES, and PARKER,                     federal court, arguing that because each plain-
  Circuit Judges.                                        tiff received HMO coverage through his em-
                                                         ployer’s ERISA plan, the claims arose under
JERRY E. SMITH, Circuit Judge:                           ERISA. The plaintiffs moved to remand.

    This suit consolidates multiple district court           The respective district courts denied Calad,
actions and appeals for consideration of com-            Davila, and Roark’s remand motions and dis-
mon issues. Ruby Calad, Walter Thorn, Juan               missed their claims under FED. R. CIV. P.
Davila, and Gwen Roark sued their respective             12(b)(6), citing ERISA preemption. The dis-
health maintenance organizations (“HMO’s”)               trict court granted Thorn’s remand motion.
for negligence under Texas state law: They               Roark, Calad, and Davila appeal the refusal to
alleged that although their doctors recom-               remand and, in the alternative, the dismissal.
mended treatment, the HMO’s negligently                  Thorn’s HMO appeals the remand. We affirm
refused to cover it. The HMO’s removed to                the judgments in Roark’s and Thorn’s cases

                                                     3
and reverse with respect to Calad and Davila.          surgery in two to three days, or he would lose
                                                       his hand. An Aetna-designated specialist
                       I.                              scheduled the surgery for the next day.
               A. Ruby Calad
    Through her husband’s employer, Calad be-             A few hours before the scheduled surgery,
came a member of CIGNA HealthCare of Tex-              Aetna refused to authorize its surgeon to op-
as, Inc. (“CIGNA”), a Texas HMO. Calad                 erate. While Aetna reviewed the case, it sent
underwent a hysterectomy with rectal, bladder,         a physical therapist to help exercise Thorn’s
and vaginal repair. The surgery was per-               hand, so it would not deteriorate while Thorn
formed by a CIGNA physician. Although that             waited for surgery. Aetna eventually approved
doctor recommended a longer stay, CIGNA’s              the surgery, but Thorn contends that Aetna’s
hospital discharge nurse decided that the stan-        delay caused scarring that has diminished his
dard, one day hospital stay would be sufficient.       manual mobility.
Calad suffered complications that returned her
to the emergency room a few days later; she               Thorn sued jointly with Calad. Initially,
attributes these complications to her early            Calad and Thorn alleged that CIGNA and Aet-
release.                                               na were jointly and severally liable. They later
                                                       withdrew this allegation, explaining it was a
    Calad sued in state court under the Texas          pleading error. Thus, Calad’s claims run only
Health Care Liability Act (“THCLA”),1 alleg-           against CIGNA, and Thorn’s runs only against
ing CIGNA had failed to use ordinary care in           Aetna. CIGNA removed to federal court
making its medical necessity decisions,                (with Aetna’s consent), citing ERISA pre-
CIGNA’s system made substandard care more              emption. Thorn moved to remand, arguing
likely, and CIGNA acted negligently when it            that ERISA excludes government plans such
made its medical necessity decisions. CIGNA            as his from preemption. The district court
removed to federal court based on ERISA                remanded Thorn’s claim.
preemption. Calad moved to remand, but the
court denied the motion. The court noted                                C. Juan Davila
“that Calad has repeatedly made clear that,                Davila is a post-polio patient who suffers
should the Court deny her motion to remand,            from diabetes and arthritis. He received Aetna
she will not amend her pleading to bring an            HMO coverage through his employer’s health
ERISA claim and therefore requests that her            plan. His primary care physician prescribed
claims be dismissed.” Accordingly, the court           Vioxx for Davila’s arthritis pain. Studies have
dismissed under rule 12(b)(6).                         shown that Vioxx has a lower rate of gas-
                                                       trointestinal toxicity (e.g., bleeding, ulceration,
               B. Walter Thorn                         perforation of the stomach) than do the other
   Thorn received Aetna U.S. Healthcare in-            drugs on Aetna’s formulary. Before filling the
surance through his employer. He injured his           prescription, Aetna required Davila to enter its
hand in a car accident, and doctors amputated          “step program”: Davila first would have to try
his ring finger. The doctors said he needed            two different medications; only if he suffered
                                                       a detrimental reaction to the medications or
                                                       failed to improve would Aetna evaluate him
   1
    TEX. CIV. P RAC. & REM. CODE §§ 88.001-            for Vioxx use.
88.003.

                                                   4
   As part of the step program, Davila first           the VAC for the other twenty-two hours of the
was given naprosyn (a cheaper pain reliever).          day.
After three weeks, he was rushed to the emer-
gency room. The doctors reported he suffered              Later that year, Humana Health Plan of
from bleeding ulcers, which caused a near              Texas (“Humana”) became the Roarks’ HMO.
heart attack and internal bleeding. The doc-           Roark’s primary care physician recommended
tors gave Davila seven units of blood and kept         she continue using the VAC and authorized
him in critical care for five days. Now he can-        treatment. In 1998, Humana delayed the VAC
not take any pain medication that is absorbed          treatments and home nursing several times; up-
through the stomach.                                   on each delay, Roark filed an immediate appeal
                                                       or grievance. The primary care physician told
   Davila sued in state court under the                Humana that without the VAC and home
THCLA, alleging Aetna had failed to use or-            nursing case, Roark could lose her leg. Huma-
dinary care in making medical necessity deci-          na eventually approved the VAC for ninety
sions, Aetna’s systems made substandard care           days. Humana periodically delayed VAC and
more likely, and Aetna acted negligently in            home nursing treatment until December 1998,
making its medical necessity decisions. Aetna          when it cancelled home nursing altogether.
removed to federal court, citing ERISA pre-            Humana agreed to pay only for visits to a local
emption.                                               hospital’s wound center.

   Davila moved to remand. The court con-                  In February 1999, Roark developed a seri-
cluded that some of Davila’s claims were com-          ous infection that required the doctors to am-
pletely preempted under ERISA § 502(a) and             putate her leg that March. While Roark was
thus denied remand. The court noted that               convalescing, Humana again denied her VAC
normally it would dismiss Davila’s state law           treatment that may have helped heal the ampu-
claims and grant him leave to file an amended          tation wound. In January 2000, the doctors
complaint under ERISA. But, because Davila             performed an additional amputation treatment
had informed the court he would not pursue an          on her leg.
ERISA claim, it instead dismissed with preju-
dice under rule 12(b)(6).                                 Roark and her husband Robert sued in state
                                                       court under the THCLA, the Texas Deceptive
               D. Gwen Roark                           Trade Practices Act (“DTPA”),2 the Texas In-
    In 1990, Roark was bitten by what was be-          surance Code,3 and common law breach of
lieved to be a brown recluse spider. The bite          good faith, fair dealing, and contract. Humana
damaged the skin, muscle, and bone of her left         removed to federal court, citing ERISA pre-
leg, requiring antibiotics, three skin graft op-       emption. The Roarks moved to remand. The
erations, and two surgeries to create “free            court found that the Roarks’ DTPA and insur-
flaps” over her wound. In 1997, Roark began
using a vacuum-assisted closure device
(“VAC”) to circulate blood to the skin’s sur-             2
                                                            TEX. BUS. & COM. CODE § 17.46(a), (b)(5),
face and quicken healing. Each day, a nurse            (b)(12).
came to Roark’s home and spent two hours
scraping the wound with a scalpel; Roark wore             3
                                                            TEX. INS. CODE art. 21.21 §§ 4(1), (2),
                                                       (11)(a), (11)(c).

                                                   5
ance claims were completely preempted under             federal courts’ original jurisdiction to those
ERISA § 502(a) and thus denied the motion.              cases in which the plaintiff’s complaint states
                                                        a cause of action arising under federal law; a
    The Roarks then amended their complaint             federal defense will not do. Franchise Tax Bd.
to allege only violations of the THCLASSthat            v. Constr. Laborers Vacation Trust, 463 U.S.
Humana had failed to use ordinary care when             1, 9-10 (1983) (citing Louisville & Nashville
it made its medical necessity decisions, Huma-          R.R. v. Mottley, 211 U.S. 149 (1908)).
na’s system made substandard care more like-            “[S]ince 1887 it has been settled law that a
ly, and Humana was negligent in making its              case may not be removed to federal court on
medical necessity decisionsSSand filed a sec-           the basis of a federal defense, including the de-
ond remand motion. The court held that                  fense of preemption, even if the defense is
ERISA § 502(a) preempts the THCLA claim                 anticipated in the plaintiff’s complaint, and
as well, denied the Roarks’ motion to remand,           even if both part ies admit that the defense is
and dismissed under rule 12(b)(6).                      the only question truly at issue in the case.”
                                                        Franchise Tax Bd., 463 U.S. at 13-14.
    The court gave the Roarks thirty days to re-
plead under ERISA § 502(a), failing which                  Calad and Davila advance only state law
their case would be dismissed with prejudice            causes of action; a straightforward application
under rule 12(b)(6). The Roarks declined and            of the well-pleaded complaint rule would de-
filed this appeal challenging the second remand         prive the federal courts of original and removal
order. The district court never entered the             jurisdiction over their claims. But, we rec-
final order dismissing the case with prejudice          ognize an exception to the well-pleaded com-
under rule 12(b)(6), but it did list the case           plaint rule for those few statutes whose “pre-
closed for statistical purposes. The Roarks’            emptive force . . . is so powerful as to displace
notice of appeal also states that they will not         entirely any state causes of action.” Id. at 23.
replead under ERISA.                                    Where “a federal cause of action completely
                                                        preempts a state cause of action, any com-
                       II.                              plaint that comes within the scope of the fed-
   A. Calad’s and Davila’s remand motions               eral cause of action necessarily ‘arises under’
    With exceptions not relevant here, “any civ-        federal law.” Id. at 24. Such actions are ex-
il action brought in a State court of which the         cepted from the well-pleaded complaint rule
district courts of the United States have origi-        and confer original and removal jurisdiction.
nal jurisdiction, may be removed by the defen-          Metro. Life Ins. Co. v. Taylor, 481 U.S. 58,
dant or the defendants, to the district court of        65-66 (1987); Giles v. NYLCare Health Plans,
the United States for the district and division         Inc., 172 F.3d 332, 336 (5th Cir. 1999). The
embracing the place where such action is pend-          Supreme Court first recognized this exception
ing.” 28 U.S.C. § 1441(a). If, before final             for § 301 of the Labor-Management Relations
judgment, it appears the case was not properly          Act (“LMRA”)4 and has extended the rule to
removed because it was not within the federal
courts’ original jurisdiction, the district court
must remand. 28 U.S.C. 1447(c).
                                                           4
                                                             Avco Corp. v. Aero Lodge No. 735, 390 U.S.
   The “well-pleaded complaint rule” limits             557 (1968); see also Franchise Tax Bd., 463 U.S.
                                                        at 23.

                                                    6
some, but not all, cases under ERISA.5                      We review the district court’s preemption
                                                         analysis, which formed the basis for its subject
    ERISA provides two types of preemption:              matter jurisdiction, de novo. McClelland v.
complete preemption under § 502(a) and con-              Gronwaldt, 155 F.3d 507, 511 (5th Cir. 1998).
flict preemption under § 514. Giles, 172 F.3d            Because we conclude that § 502(a) does not
at 336; McClelland v. Gronwaldt, 155 F.3d                displace Calad’s or Davila’s claims, the district
507, 515-17 (5th Cir. 1998). “Section 502, by            court should have remanded.
providing a civil enforcement cause of action,
completely preempts any state cause of action               The enforcement provisions listed in
seeking the same relief.” Id. at 337.                    ERISA § 502(a)(5)-(9) do not provide a cause
                                                         of action for participants and beneficiaries; be-
    Section 502(a) complete preemption is a              cause Davila is an ERISA participant7 and Cal-
slight misnomer, for it does not involve tradi-          ad is an ERISA beneficiary,8 neither could
tional preemption analysis. McClelland, 155              have asserted a claim that falls within these
F.3d at 516 (“Co mplete preemption is less a             subsections.9 Subsections 502(a)(1)(A) and
principle of substantive preemption than it is a         (4) deal with plan administrators’ duties to
rule of federal jurisdiction.”). We do not ask           supply information; they too are irrelevant.
whether the state law conflicts with or frus-            Section 502(a)(3) indicates equitable remedies
trates a congressional purpose, but whether              are generally available under ERISA; it in-
the state law duplicates or “falls within the            cludes only “those categories of relief that
scope of” an ERISA § 502(a) remedy. Taylor,              were typically available in equity,” Great-West
481 U.S. at 64; McClelland, 155 F.3d at 518.             Life & Annuity Ins. Co. v. Knudson, 122 S. Ct.
If Calad and Davila could have brought their             708, 712 (2002), not the damages claims Cal-
claims under ERISA § 502(a), the claims                  ad and Davila bring, id. at 713. This leaves
would be completely preempted, and the dis-              only two enforcement provisions of
trict court would have been correct to exercise          § 502(a)10SS§ 502(a)(2) and (a)(1)(b)SS
jurisdiction.

   Section 514, in contrast, provides for ordi-             7
                                                              See 29 U.S.C. § 1002(7) (“The term ‘partici-
nary conflict preemption.6 State law claims              pant’ means any employee or former employee of
that fall outside § 502(a), even though pre-             an employer, or any member or former member of
empted by § 514, follow the well-pleaded                 an employee organization, who is or may become
complaint rule and do not confer original or             eligible to receive a benefit of any type from an em-
removal jurisdiction. Franchise Tax Bd., 463             ployee benefit plan which covers employees of such
U.S. at 23-27; Giles, 172 F.3d at 337.                   employer or members of such organization”).
                                                            8
                                                              See 29 U.S.C. § 1002(8) (“The term ‘benefi-
                                                         ciary’ means a person designated by a participant,
   5
       Metropolitan Life, 481 U.S. at 64-65.             or by the terms of an employee benefit plan, who is
                                                         or may become entitled to a benefit thereunder”).
   6
     ERISA § 514(a) preempts “all State laws in-
                                                            9
sofar as they may now or hereafter relate to any                Cf. McClelland, 155 F.3d at 518.
employee benefit plan described in section 1003(a)
                                                            10
of this title and not exempt under section 1003(b)               In its entirety, § 502(a) reads,
of this title.” 29 U.S.C. § 1144(a).                                                                (continued...)

                                                     7
                                                        neither of which preempts Calad’s or Davila’s
                                                        claims.
10
  (...continued)
(a) Persons empowered to bring a civil                                1. § 502(a)(2)
action                                                     Calad and Davila argue that their HMO’s
                                                        were not acting as plan fiduciaries when de-
A civil action may be broughtSS                         nying them medical treatment, so § 502(a)(2)
                                                        cannot cover (or completely preempt) their
(1) by a participant or beneficiarySS

     (A) for the relief provided for in sub-
                                                           10
     section (c) of this section, or                         (...continued)
                                                           subsection (c) of this section or under sub-
     (B) to recover benefits due to him un-                section (i) or (l) of this section;
     der the terms of his plan, to enforce his
     rights under the terms of the plan, or to             (7) by a State to enforce compliance with a
     clarify his rights to future benefits un-             qualified medical child support order (as de-
     der the terms of the plan;                            fined in section 1169(a)(2)(A) of this title);

(2) by the Secretary, or by a participant,                 (8) by the Secretary, or by an employer or
beneficiary or fiduciary for appropriate re-               other person referred to in section 1021-
lief under section 1109 of this title;                     (f)(1) of this title, (A) to enjoin any act or
                                                           practice which violates subsection (f) of sec-
(3) by a participant, beneficiary, or fiduci-              tion 1021 of this title, or (B) to obtain
ary (A) to enjoin any act or practice which                appropriate equitable relief (i) to redress
violates any provision of this subchapter or               such violation or (ii) to enforce such subsec-
the terms of the plan, or (B) to obtain other              tion; or
appropriate equitable relief (i) to redress
such violations or (ii) to enforce any provi-              (9) in the event that the purchase of an in-
sions of this subchapter or the terms of the               surance contract or insurance annuity in
plan;                                                      connection with termination of an individ-
                                                           ual's status as a participant covered under a
(4) by the Secretary, or by a participant, or              pension plan with respect to all or any por-
beneficiary for appropriate relief in the case             tion of the participant’s pension benefit un-
of a violation of 1025(c) of this title;                   der such plan constitutes a violation of
                                                           part 4 of this title or the terms of the plan,
(5) except as otherwise provided in subsec-                by the Secretary, by any individual who was
tion (b) of this section, by the Secretary                 a participant or beneficiary at the time of the
(A) to enjoin any act or practice which vio-               alleged violation, or by a fiduciary, to obtain
lates any provision of this subchapter, or                 appropriate relief, including the posting of
(B) to obtain other appropriate equitable re-              security if necessary, to assure receipt by
lief (i) to redress such violation or (ii) to              the participant or beneficiary of the amounts
enforce any provision of this subchapter;                  provided or to be provided by such insur-
                                                           ance contract or annuity, plus reasonable
(6) by the Secretary to collect any civil pen-             prejudgment interest on such amounts.
alty under paragraph (2), (4), (5), or (6) of
                                   (continued...)       29 U.S.C. 1132(a).

                                                    8
THCLA claims. We agree.                                 which it “reward[ed] its physician owners for
                                                        limiting medical care, entailed an inherent
   Section 502(a)(2) allows a plan participant          breach of an ERISA fiduciary duty, because
or beneficiary to sue “for appropriate relief un-       these terms created an incentive to make
der section 1109 of this title.” 29 U.S.C.              decisions in the physicians’ self-interest rather
§ 1132(a)(2). Section 1109(a) in turn pro-              than in the exclusive interest of the plan partici-
vides:                                                  pants.” Pegram, 530 U.S. at 216.

   Any person who is a fiduciary with re-                  The Court unanimously ruled that Herdrich
   spect to a plan who breaches any of the              did not state a cause of action under § 502(a).
   responsibilities, obligations, or duties             The Court first categorized Herdrich’s claim.
   imposed upon fiduciaries by this sub-                HMO’s, it explained, made three types of deci-
   chapter shall be personally liable to                sions—eligibility decisions, treatment deci-
   make good to such plan any losses to                 sions, and mixed eligibility and treatment de-
   the plan resulting from each such breach             cisions. Id. at 228-29. Eligibility decisions
   ....                                                 “turn on the plan’s coverage of a particular
                                                        condition or medical procedure for its treat-
29 U.S.C. § 1109(a).                                    ment.” Id. at 228.

   In Pegram v. Herdrich, 530 U.S. 211                     Pure eligibility decisions, “simple yes-or-no
(2000), the Court decided that under § 502-             questions, like whether appendicitis is a cov-
(a)(2), a patient cannot hold his HMO vicari-           ered condition,” are likely rare. Id. Treatment
ously liable for its physician’s medical malprac-       decisions, “by contrast, are choices about how
tice. Although Pegram did not decide the                to go about diagnosing and treating a patient’s
precise question before us—whether, under               condition.” Id. Herdrich’s case, the Court
§ 502(a)(2), a patient can hold his HMO di-             concluded, involved “the more common”
rectly liable for its own medical malprac-              mixed decision, such as “whether one treat-
tice—its holding is broad enough to apply               ment option is so superior . . . and needed so
here.                                                   promptly, that a decision to proceed would
                                                        meet the medical necessity requirement.” Id.
   In Herdrich, the plaintiff became a patient          at 228-29. Claims regarding such “mixed eli-
of Pegram’s through her HMO. When Pegram                gibility and treatment decisions,” the Court
discovered an inflamed mass in Herdrich’s ab-           held, do not fall within § 502(a)(2). Id. at
domen, she did not order an immediate ultra-            231-32.
sound; instead, she decided Herdrich would
have to wait eight days to be examined at a                It seems beyond dispute that Calad’s and
center fifty miles away; in the meantime, Herd-         Davila’s claims involve such mixed decisions.
rich’s appendix ruptured.                               CIGNA agrees its plan covers hospital stays
                                                        after a hysterectomy, and Aetna agrees its plan
   Herdrich sued Pegram for medical malprac-            includes a range of arthritis drugs, so we are
tice and sued both Pegram and her HMO                   not presented with simple yes-or-no coverage
under ERISA §§ 502(a)(2) and 1109, alleging             questions. Instead, we are presented with the
that the HMO’s medical rationing scheme, by             type of “when and how” medical necessity


                                                    9
questionsSSwhether Calad was provided                    Plans v. Travelers Ins. Co., 514 U.S. 645,
enough treatment (enough days in the hospital)           654-55 (1995)), and it was unimaginable that
and whether Davila was prescribed the correct            Congress intended ERISA to create a federal
treatment (naprosyn instead of Vioxx)SSthat              common law of medical malpractice. Id.
fall within Pegram’s rule. Id. at 228-29.
                                                            These factors apply with equal force to a
   Pegram is distinguishable in one regard:              claim that an HMO breached its fiduciary duty
Herdrich claimed her doctor made the errone-             in denying care. Such a claim demands that
ous medical decision; Calad and Davila claim             the HMO forego its core purpose—rationing
their HMO’s did. But Pegram’s reasoning in-              care—and act only in the patient’s interest.
dicates this distinction is immaterial to the            And, such a claim would create a federal body
§ 502(a)(2) analysis.                                    of malpractice law applicable against HMO’s.
                                                         Because Pegram is indistinguishable, § 502-
   The Pegram Court expressed doubt that                 (a)(2) does not completely preempt Calad’s
“that Congress would ever have thought of a              and Davila’s THCLA claims.
mixed eligibility decision as fiduciary in na-
ture.” Id. at 231. It contrasted fiduciaries,                          2. § 502(a)(1)(B)
who must “act solely in the interest of the                 The Supreme Court has declined to decide
patient without possibility of conflict,” id. at         whether § 502(a)(1)(B) displaces a medical
233, with HMO’s, whose entire purpose is to              malpractice claim involving “mixed decisions,”
balance costs against patient welfare, id. at            Pegram, 530 U.S. at 229 n.9, and this circuit
231-32. “Since inducement to ration care goes            has not yet confronted the question.11 We
to the very point of any HMO scheme,” id. at
221, treating HMO’s as ERISA fiduciaries
would entail “nothing less than the elimination             11
                                                               In Corcoran v. United Healthcare, Inc., 965
of the for-profit HMO,” id. at 233.                      F.2d 1321 (5th Cir. 1992), we held that § 514 pre-
                                                         empted a patient’s claim that her HMO was med-
   The Pegram Court went on to note the                  ically negligent for refusing to hospitalize her.
potential “mischief” the alternative holding             Section 502(a) preemption is a subset of § 514
would entail. Id. at 236. Such a rule would              preemption. Although any claim that falls within
create a federal body of malpractice law appli-          § 502(a) necessarily falls within § 514, claims that
cable against HMO’s and physicians. Id. at               fall under § 514 do not necessarily fall under
235-36. And, because ERISA § 502(a) pre-                 § 502(a). McClelland, 155 F.3d at 517. Thus,
empts any overlapping state law, this would              Corcoran does not decide our question.
create “a puzzling issue of preemption”; it
“would seem to be a prescription for preemp-                 In Corporate Health Ins., Inc. v. Tex. Dep’t of
                                                         Ins., 215 F.3d 526, 535 (5th Cir. 2000), vacated
tion of state malpractice law.” Id. at 236.
                                                         on other grounds by Montemayor v. Corporate
This could not be so, the Court explained, for           Health Ins., 122 S. Ct. 2617 (2002), we ruled that
“in the field of health care, a subject of tradi-        § 514 (and thus § 502(a)(1)(B)) does not preempt
tional state regulation, there is no ERISA pre-          a THCLA suit holding an HMO vicariously liable
emption without clear manifestation of con-              for its doctor’s negligence. But we cannot auto-
gressional purpose,” id. at 237 (citing N.Y.             matically extend Corporate Health’s holding to
State Conference of Blue Cross & Blue Shield             suits directly against an HMO. The Corporate
                                                                                               (continued...)

                                                    10
now conclude that § 502(a)(1)(B) does not                    complications from breast implants. The in-
preempt Calad’s and Davila’s THCLA claims.                   surance policy limited coverage to only “medi-
                                                             cally necessary” treatments, and the plan ad-
    Section 502(a)(1)(B) allows a plan partici-              ministrator concluded that Dowden’s treat-
pant or beneficiary to bring a civil action “to              ment did not fit the plan’s definition. Id. at
recover benefits due him under the terms of his              644. Dowden sued under § 502(a)(1)(B),
plan, to enforce his rights under the terms of               claiming “the plan administrator abused its
the plan, or to clarify his rights to future ben-            discretion in interpreting the term ‘medically
efits under the terms of the plan.” 29 U.S.C.                necessary’ as expressly defined in the insur-
§ 1132(a)(1)(B). Calad’s and Davila’s claims                 ance contract,” and wrongfully withheld ben-
of HMO medical malpractice differ fundamen-                  efits owed to her. Id. at 643.
tally from the § 502(a)(1)(B) claims we have
recognized. Section 502(a)(1)(B), we have                       Superficially, this claim resembles Calad’s
held, creates a cause of action for breach of                and Davila’s: Like Calad and Davila, Dowden
contract: When a plan administrator incor-                   claimed she was wrongfully denied medically
rectly interprets the plan to deny benefits, the             necessary treatment. But, Dowden asserted a
patient may sue to recover the benefits.12 By                contract claim for contract damages; Calad
contrast, Calad and Davila assert tort claims;               and Davila assert a tort claim for tort damages.
they have not sued their ERISA plan adminis-                 Calad and Davila are not seeking reimburse-
trator, nor do they challenge his interpretation             ment for benefits denied them: Calad is not re-
of the plan.                                                 questing the value of an extra night at the hos-
                                                             pital, and Davila is not requesting reimburse-
   Dowden v. Blue Cross & Blue Shield, Inc.,                 ment for the more expensive drug the HMO
126 F.3d 641 (5th Cir. 1997) (per curiam), is                denied.
on point. The plaintiff’s health insurer refused
to cover the expenses she incurred treating                     In deciding Dowden’s claim, we were lim-
                                                             ited to the plan and its definition of “medically
                                                             necessary.” For Calad and Davila, the word-
   11
     (...continued)                                          ing of their plans is immaterial; they invoke an
Health court held that when a doctor denies treat-           external, statutorily imposed duty of “ordinary
ment, he makes a quality-of-care decision, which             care.”
escapes ERISA preemption. By contrast, when an
HMO denies treatment, it makes a coverage deci-
                                                                Furthermore, this court has treated as given
sion, and claims over such a decision are pre-
                                                             that ERISA provides no cause of action for
empted by ERISA. Id. at 534-35 & n.24. But cf.
Pegram, 530 U.S. at 228-30 (indicating courts                medical malpractice claims against an HMO.
should look to the substance of the decision, not the        In Corcoran we noted the troubling result of
identity of the decisionmaker, in determining                our holding that ERISA § 514 bars states from
whether ERISA applies).                                      providing such remedies: “The result ERISA
                                                             compels us to reach means that the [plaintiffs]
   12
     See, e.g., Gosselink v. Am. Tel. & Tele-                have no remedy, state or federal, for what
graph, Inc., 272 F.3d 722, 726-28 (5th Cir.
2001); Wildbur v. ARCO Chem. Co., 974 F2d
631, 636 (5th Cir.), modified, 979 F.2d 1013
(5th Cir. 1992).

                                                        11
might have been a serious mistake.”13 Nor                (alterations in original). Although the court
have we ever recognized a claim of HMO                   held that ERISA § 502(a)(1)(B) completely
medical negligence under § 502(a)(1)(B).                 preempted this claim, it grounded its holding in
                                                         its finding that the claim involved “core admin-
   The Third Circuit has reached the same                istrative function,” the type of “pure eligibility
conclusion. In Dukes v. U.S. Healthcare, Inc.,           decision” as defined by Pegram, not the type
57 F.3d 350, 352 (3d Cir. 1995), the court               of treatment decision involved in Dukes. Id. at
held that claims that an HMO had failed to               274.
exercise reasonable care in providing medical
treatment are not completely preempted by                   CIGNA and Aetna cite Pilot Life Ins. Co.
§ 502(a)(1)(B). The plaintiff complained that            v. Dedeaux, 481 U.S. 41 (1987), for the prop-
her hospital provider had acted negligently in           osition that Congress intended § 502(a)(1)-
delaying her husband’s blood test. This delay            (B)’s contract action to be the sole remedy
led to a late diagnosis of his condition and, she        available. They argue that patients must pay
argued, his untimely death. Id. Her HMO,                 for services ahead of time and, if the plan ad-
she asserted, was vicariously liable for the             ministrator denies benefits, sue for reimburse-
hospital’s malpractice and directly liable for           ment under § 502(a)(1)(B). Although Pilot
negligence in selecting its medical service              Life includes some expansive language that
providers.                                               arguably supports CIGNA and Aetna’s read-
                                                         ing,14 the Supreme Court’s most recent word
    Such a claim, the court explained, was not           on the matter, Rush Prudential HMO, Inc. v.
completely preempted, because it “merely at-             Moran, 122 S. Ct. 2151 (2002), indicates Pilot
tacked the quality of benefits received.” Id. at         Life does not sweep so broadly.
356. “Nothing in the complaints indicates that
the plaintiffs are complaining about their                  In Pilot Life, an ERISA participant who
ERISA welfare plans’ failure to provide bene-            was denied benefits sued in state court, assert-
fits due under the plan. Dukes does not allege,          ing common law contract claims. The Court
for example, that the Germantown Hospital re-            held § 502(a)(1)(B) preempted the claim.
fused to perform blood studies on [her hus-              ERISA provides a means of collecting benefits
band] because the ERISA plan refused to pay              and set forth an exclusive list of remedies;
for the studies.” Id. at 357.                            states could not create alternative causes of
                                                         action for collecting benefits that expanded up-
    The Third Circuit’s more recent decision in
Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d
266 (3d Cir. 2001), reaffirms this conclusion.              14
The plaintiff claimed, inter alia, that her HMO                See, e.g., Pilot Life, 481 U.S. at 54 (“[Con-
                                                         gress’s] inclusion of certain remedies and exclusion
“‘negligently and carelessly delayed in giving
                                                         of others . . . would be completely undermined if
its approval for the necessary surgery which             ERISA-plan participants and beneficiaries were
the plaintiff . . . urgently needed.’” Id. at 270        free to obtain remedies under state law that Con-
                                                         gress rejected in ERISA . . . . ‘Congress did not
                                                         intend to authorize other remedies that it simply
   13
     Corcoran, 965 F.2d at 1338; accord id. at           forgot to incorporate expressly’” (quoting Mass.
1333; Note, Recent Cases, 114 HARV. L. REV.              Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146
1406, 1409 (2001).                                       (1985)).

                                                    12
on ERISA’s remedies. Pilot Life, 481 U.S. at           remand to the district court for proceedings
54-55; Rush Prudential, 122 S. Ct. at 2166.            consistent with this decision.

    Since Pilot Life, the Supreme Court has                     B. Thorn’s motion to remand
“found only one other state law to ‘conflict’              Aetna cross-appeals the decision to remand
with [§ 502(a)] in providing a prohibited              Thorn’s claims to state court. Except for
alternative remedy.” Rush Prudential, id. In           those cases removed pursuant to 28 U.S.C.
Ingersoll-Rand Co. v. McClendon, 498 U.S.              § 1443, “[a]n order remanding a case to the
133 (1990), the Court held that “Texas’s tort          State court from which it was removed is not
of wrongful discharge, turning on an employ-           reviewable on appeal or otherwise.” 28
er’s motivation to avoid paying pension bene-          U.S.C. § 1447(d). On its face, this statute
fits, conflicted with ERISA enforcement.”              seems to deprive us of jurisdiction over Aet-
Rush Prudential, 122 S. Ct. at 2166. The               na’s cross-appeal. But we read § 1447(d) in
Rush Prudential Court explained its holding in         conjunction with § 1447(c)’s command that
Ingersoll-Rand: “[The] state law duplicated            “[i]f at any time before final judgment it ap-
the elements of a claim available under ERISA,         pears that the district court lacks subject mat-
it converted the remedy from an equitable one          ter jurisdiction, the case shall be remanded.”
under § 1132(a)(3) (available exclusively in           28 U.S.C. § 1367(c). Accordingly, § 1447(d)
federal district courts) into a legal one for          applies only where a district court remands for
money damages (available in a state tribunal).”        lack of subject matter jurisdiction; we may re-
Rush Prudential, id.                                   view remands based on other grounds. Things
                                                       Remembered v. Petrarca, 516 U.S. 124, 127-
   We glean from Rush Prudential that Pilot            28 (1995); Giles, 172 F.3d at 336.
Life’s rule is a narrow one: States may not
duplicate the causes of action listed in ERISA            Reviewable remand orders are a narrow
§ 502(a). This is, essentially, the test em-           class of cases, meaning we review a remand
ployed for “complete preemption.” Because              order only if the district court ‘clearly and af-
the THCLA does not provide an action for               firmatively’ relies on a non-§ 1447(c) basis.”
collecting benefits, it is not preempted by            Giles, 172 F.3d at 336. The district court ex-
§ 502(a)(1)(B) under Pilot Life.                       plained that it had supplemental jurisdiction
                                                       over Thorn’s claim, but it was exercising its
   Any doubts we might have are eliminated             discretion under 28 U.S.C. § 1441(c) to re-
by Pegram’s admonition that ERISA should               mand. As in Giles, “the court affirmatively
not be interpreted to preempt state malpractice        gave a non-§ 1447(c) reason for remanding
laws or to create a federal common law of              and gave no indication that it believed it lacked
medical malpractice. See Pegram, 530 U.S. at           subject matter jurisdiction.” Id. Accordingly,
236-37. We decline, two years after the Court          “we review the district court’s exercise of its
expressed disbelief that Congress would fed-           discretion to remand supplemental . . . state
eralize medical malpractice law under § 502-           law claims.” Id.
(a)(2), to hold that Congress has done so un-
der § 502(a)(1)(B). Having concluded that                 The district court held that even though
§ 502(a) does not completely preempt Calad’s           Thorn stated only state law causes of action, it
and Davila’s THCLA claims, we vacate and               had supplemental jurisdiction over his claims,


                                                  13
because they were joined to Calad’s claims.                28 U.S.C. § 1441(c)17; Giles, 172 F.3d at 337-
Thus, the court’s jurisdiction over Thorn’s                38.18 Although the Roarks do not appeal the
claims depended on its removal power over                  initial holding that § 502(a) completely pre-
Calad’s claims. 15 But, as we have explained,              empts some of their original claims, we must
the district court never had removal jurisdic-             examine it on our own initiative, because this
tion over Calad’s claims. Consequently, it                 question determines whether the district court
never had subject matter over Thorn’s claims,              had subject matter jurisdiction. McClelland,
so remand was mandatory, not discretionary.16              155 F.3d at 511, 518 n.39. We review this
                                                           preemption question de novo, id. at 511, and
      C. The Roarks’ motion to remand                      conclude the district court did have jurisdic-
   The Roarks’ original complaint, filed in                tion.
state court , stated claims under the THCLA,
the DTPA, the Texas Insurance Code, and
common law breach of good faith, fair dealing,                17
                                                                   Section 1447(c) provides,
and contract. Humana removed, citing ERISA
preemption, and the Roarks moved to remand.                         Whenever a separate and independent
Only after the district court affirmed the re-                claim or cause of action within the jurisdic-
moval, concluding ERISA § 502(a) completely                   tion conferred by section 1331 of this title is
preempted the Roarks’ DTPA and insurance                      joined with one or more otherwise non-re-
claims, did the Roarks amend their complaint                  movable claims or causes of action, the en-
to state only THCLA claims. The Roarks                        tire case may be removed and the district
made a second motion to remand, which the                     court may determine all issues therein, or, in
district court again denied; the Roarks appeal                its discretion, may remand all matters in
                                                              which State law predominates.
only the second denial.
                                                           28 U.S.C. § 1447(c).
   If, at the time of removal, the complaint
stated at least one cause of action completely                18
                                                                   In Giles we explained,
preempted by § 502(a), the district court could
have asserted jurisdiction over the entire case,                    Hence, when a complaint raises state
including and claims only conflict-preempted                  causes of action that are completely pre-
by ERISA § 514 and any state law claims. See                  empted, the district court may exercise re-
                                                              moval jurisdiction. When a complaint con-
                                                              tains only state causes of action that the de-
                                                              fendant argues are merely conflict-preempt-
   15
      See 28 U.S.C. § 1441(c) (hinging removal of             ed, the court must remand for want of sub-
supplemental claims on the existence of “a separate           ject matter jurisdiction. When a complaint
and independent claim or cause of action within the           raises both completely-preempted claims
jurisdiction conferred by section 1331”).                     and arguably conflict-preempted claims, the
                                                              court may exercise removal jurisdiction over
   16
      Avitts v. Amoco Prod. Co., 53 F.3d 690, 693             the completely-preempted claims and sup-
(5th Cir. 1995) (explaining that if district court            plemental jurisdiction (formerly known as
never had original jurisdiction over any federal              “pendant jurisdiction”) over the remaining
claim, it could not have exercised supplemental               claims.
jurisdiction over the joined state claims and was
required to remand).                                       Giles, 172 F.3d at 337-38.

                                                      14
    Count six of the Roarks’ original complaint         of discretion.” McClelland, 155 F.3d at 519;
alleges breach of contract: “By virtue of the           see also § 1367.
policies provided to the Plaintiffs, Defendants
assumed obligations, as outlined in the Mem-                Section 1367(3) allows a district court to
ber Materials and other documents provided to           “decline to exercise supplemental jurisdiction
policy enrollees like the Roarks, to provide            over a claim . . . if . . . the district court has
medically necessary treatment . . . . Defen-            dismissed all claims over which it has original
dants breached this promise to Mrs. Roark,              jurisdiction.” 28 U.S.C. § 1367(3). The dis-
causing her to suffer direct and serious dam-           trict court should evaluate whether remand
age.” The Roarks assert that the plan’s term            furthers “the values of economy, convenience,
“medically necessary treatment” includes VAC            fairness, and comity.” Carnegie-Mellon Univ.
treatments.                                             v. Cohill, 484 U.S. 343, 351 (1988); accord
                                                        Brown v. Southwestern Bell Tel. Co., 901 F.2d
    The answer turns on interpreting the plan’s         1250, 1254-55 (5th Cir. 1990).
language, not on applying an external, statuto-
rily imposed standard of ordinary care. Be-                  III. Dismissal of the Roarks’ claims
cause this is precisely the type of contract               The district court dismissed the Roarks’
claim we recognize under § 502(a)(1)(B), see            THCLA claims under rule 12(b)(6), citing
supra part II.A.2, this claim is completely             ERISA § 514 preempt ion. We review a rule
preempted under ERISA.                                  12(b)(6) dismissal de novo. E.g., Oliver v.
                                                        Scott, 276 F.3d 736, 740 (5th Cir. 2002).
   This establishes that the district court had
the power to entertain the Roarks’ suit; it does           ERISA § 514 preempts “all State laws in-
not necessarily mean the court acted properly           sofar as they may now or hereafter relate to
in doing so. The Roarks amended their com-              any employee benefit plan described in section
plaint to state only THCLA claims, then filed           1003(a) of this title and not exempt under sec-
a second remand motion, arguing that because            tion 1003(b) of this title.” 29 U.S.C. § 1144-
all federal claims had been dismissed, 28               (a). We have spilled much ink over the past
U.S.C. § 1367 required the court to remand              few decades trying to interpret this statute. By
the remaining supplemental state law claims.            contrast, our answer today is short and direct:
The district court ruled that the THCLA                 Our decision in Corcoran v. United Health-
claims also were completely preempted under             care, Inc., 965 F.2d 1321 (5th Cir. 1992), is
ERISA, so it had original jurisdiction over             on point. Although the Supreme Court has
them and retained the case.                             since cast doubt on Corcoran’s validity, we do
                                                        not write on a clean slate. Our rule of orderli-
    Because ERISA does not completely pre-              ness prevents one panel from overturning the
empt the Roarks’ THCLA claims, see supra                decision of a prior panel, so any relief for the
part II, the district court had only supplemen-         Roarks must come from an en banc panel of
tal, not original, jurisdiction over the Roarks’        this court or the Supreme Court. Teague v.
THCLA claims. “We review a district court’s             City of Flower Mound, 179 F.3d 377, 383 (5th
decision to retain jurisdiction over pendant            Cir. 1999).
[i.e, supplemental] state law claims for abuse



                                                   15
   Corcoran is factually indistinguishable from           thority.”19 And, based on the broad language
the Roarks’ case. There, the HMO ignored its              of Pilot Life, Ingersoll-Rand, and Shaw v.
doctor’s recommendation to hospitalize Mrs.               Delta Air Lines, Inc., 463 U.S. 85 (1983), we
Corcoran or monitor her pregnancy around the              concluded that even attenuated and indirect ef-
clock; instead it provided the less expensive             fects on an ERISA plan are enough to bring a
treatment of ten hours a day of home nursing.             statute within § 514 preemption. Corcoran,
Corcoran, 965 F.2d at 1324. While no nurse                965 F.2d at 1328-29, 1338 n.20.
was on duty, Corcoran miscarried. Id. She
sued her HMO, alleging its negligence caused                  Since then, the Supreme Court has curtailed
her baby’s wrongful death. Id.                            the scope of § 514 preemption, most notably
                                                          in a “trilogy” of cases between 1995 and 1997.
    We rejected both the HMO’s “position that             The first case, N.Y. State Conference of Blue
no part of its actions involve[d] medical deci-           Cross & Blue Shield Plans v. Travelers Ins.
sions” and Corcoran’s position “that no part of           Co., 514 U.S. 645 (1995), involved a New
[her HMO’s] actions involve[d] benefit deter-             York statute requiring hospitals to collect sur-
minations.” Id. at 1332. In actuality, we ex-             charges from patients insured by a commercial
plained, the HMO “makes benefit determina-                carrier but exempting HMO’s that provided
tions as part and parcel of its mandate to de-            open enrollment coverage. The Second
cide what benefits are available under the                Circuit had held that such surcharges “related
[ERISA] plan.” Id. “[F]rom this perspective,              to” ERISA plans: Many of these HMO’s
it becomes apparent that the Corcorans are                contracted with ERISA plans, and the
attempting to recover for a tort allegedly com-           surcharge, by affecting these HMO’s’
mitted in the course of handling a benefit deter-         economic incentives, had an impact on plan
mination.” Id.                                            structures.

   Such a claim, we reluctantly concluded,                   The Court reversed in a unanimous opinion.
was preempted under § 514. We recognized                  The state statute’s “indirect economic in-
the possible harm our ruling created: ERISA               fluence,” the Court explained, “does not bind
provided no cause of action for medical mal-              plan administrators to any particular choice.”
practice; if ERISA also preempted all state               Id. at 659. It only alters “the relative costs of
medical malpractice claims, patients such as              competing insurance to provide them,” id. at
the Corcorans would be left with no remedy                660, and this does not run afoul of ERISA
for potentially serious mistakes. Id. at 1338.            preemption.
But, we were bound by Supreme Court prece-
dent, which at that time articulated an expan-               Two years later, a unanimous Court handed
sive view of ERISA preemption.                            down Cal. Div. of Labor Standards
                                                          Enforcement v. Dillingham Constr., N.A.,
   For example, we cited Ingersoll-Rand for               Inc., 519 U.S. 316 (1997). California had
the proposition that § 514’s broad “relates to”
language negated the normal rules of preemp-
tion. We would not assume that preemption                    19
                                                                Corcoran, 965 F.2d at 1334; see also
was less likely in areas of “traditional state au-        Somers Drug Stores Co. Employee Profit Sharing
                                                          Trust v. Corrigan Enters., Inc., 793 F.2d 1456,
                                                          1468 (5th Cir. 1986).

                                                     16
enacted a law that required payment of                           The trilogy undermines Corcoran in two
prevailing wages to employees in                              important ways. First, the Court established
apprenticeship non-state approved programs                    that traditional preemption rules apply under
but allowed lower wages for apprentices                       ERISA. Thus, courts should presume ERISA
participating in state approved programs. The                 does not preempt areas such as “general health
Court held that because the law was indifferent               care regulation, which historically has been a
to ERISA coverage (state-approved programs                    matter of local concern.” Travelers, 514 U.S.
did not have to be ERISA programs), the law                   at 661. Second, the Court held that a state
did not make “reference to” such plans. Id. at                law’s economic impact (direct or indirect) on
325.                                                          plan structures is not enough to trigger § 514
                                                              preemption.
    The fact that “most state-approved appren-
ticeship programs . . . appear to be ERISA                       The Court’s dictum in Pegram gives further
programs” was immaterial. Id. at 327 n.5.                     reason to doubt that ERISA preempts medical
Nor did California’s law have a “connection                   malpractice claims such as the Roarks’. In
with” ERISA plans. It did not bind plans,                     holding that the plaintiff did not state a claim
legally or practically, to a given result; it only            under § 502(a)(2), the Court, 530 U.S. at 236-
provided economic incentives to alter their                   37, expressed disbelief that ERISA preempts
structure. Id. at 329. Most notably, the Court                such claims:
explicitly returned to a traditional preemption
analysis: ERISA’s “relates to” language did                           To be sure [Travelers] throws some
not “alter [the] ordinary assumption that the                    cold water on the preemption theory;
historic police powers of the States were not                    there, we held that, in the field of health
to be superseded by the Federal Act.” Id. at                     care, a subject of traditional state
331 (internal quotation marks omitted).20                        regulation, there is no ERISA
    The last of the trilogy, De Buono v. NYSA-                   preemption without clear manifestation
ILA Med. & Clinical Servs. Fund, 520 U.S.                        of congressional purpose. But in that
806 (1997), held that ERISA did not preempt                      case the convergence of state and
New York’s tax on gross receipts for patient                     federal law was not so clear as in the
services at health care facilities. The Court ac-                situation we are positing; the state-law
knowledged that the tax had a direct effect on                   standard had not been subsumed by the
ERISA plans (in fact, it eschewed any dis-                       standard to be applied under ERISA.
tinction between direct and indirect effects),
but still upheld the statute.                                 Pegram, 530 U.S. at 236-37.

                                                                 Furthermore, after Pegram, Corcoran’s
   20                                                         rule creates perverse incentives for HMO’s. If
       Justice Scalia, in a concurrence in which
Justice Ginsburg joined, urged the Court to “ac-
                                                              a doctor fails to recommend treatment, the pa-
knowledge[] that our first take on this statute was           tient may sue the doctor and HMO under state
wrong; that the ‘relate to’ clause . . . is meant, not        law. Id. at. If the doctor recommends
to set forth a test for pre-emption, but rather to            treatment, and the HMO denies coverage, the
identify the field in which ordinary field pre-               patient has no remedy. Corcoran, 965 F.2d at
emption applies.”       Id. at 336 (Scalia, J.,               1338. In this circuit, HMO’s can escape all
concurring).

                                                         17
liability if they instruct their doctors to
recommend every possible treatment and leave
the real decision to HMO administrators. It is
difficult to believe that one of Congress’s
goals in passing ERISA was to shift medical
judgments from doctors to plan administrators.

   If we were writing on a clean slate, or de-
ciding this en banc, the Roarks would have a
strong case against ERISA preemption. But,
as a panel we are bound by Corcoran.
Accordingly, we affirm with respect to the
Roarks.

   In summary, the judgment in No. 01-10831,
regarding the Roarks, is AFFIRMED. The
judgment in No. 01-10891 is REVERSED in
regard to Calad and AFFIRMED in regard to
Thorn. The judgment in No. 01-10905 is
REVERSED in regard to Davila. All these
matters are REMANDED to the respective
district courts for further proceedings, if any,
that may be called for by this opinion.




                                                   18
