                                   United States Court of Appeals,

                                             Fifth Circuit.

                                            No. 92-5290.

                               Thomas H. BURKS, Plaintiff-Appellee,

                                                  v.

          AMERADA HESS CORPORATION and Alan Fuller, Defendants-Appellants.

                                            Dec. 7, 1993.

Appeal from the United States District Court for the Eastern District of Texas.

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

       JERRY E. SMITH, Circuit Judge:

       Thomas H. Burks was an employee of Amerada Hess Corporation ("Hess") who suffered an

on-the-job injury and filed for workers' compensation. Shortly thereafter, Hess fired Burks, allegedly

for using company property for his personal benefit during work hours. Burks contended that he was

fired in retaliation for making a workers' compensation claim, and he filed suit in Texas state court

against Hess and Alan Fuller, a Hess manager. Later he amended his complaint, alleging intentional

infliction of emotional distress, unlawful termination, slander, libel, and defamation, all arising from

the termination of employment and the denial of his long-term benefits. The defendants removed to

federal court, basing jurisdiction upon the Employee Retirement Income Security Act of 1974

("ERISA"), 29 U.S.C. §§ 1001-1461. After Burks amended his complaint once again, the district

court remanded to state court. Because we find that the district court abused its discretion by

remanding, we reverse.

                                                   I.

       Burks's original petition in state court, filed in March 1991, claimed that Hess fired him in

retaliation for filing a worker's compensation claim and alleged the following:

       Defendant's firing of Plaintiff is a violation of Article 8307(c) Texas Revised Civil Statutes
       which prevents employers from firing workers who have filed worker's compensation
       claims.... As a result of Defendant's unlawful action, Plaintiff has suffered damages. Plaintiff
       Burks has suffered lost wages in the past and will suffer lost wages in the future. Plaintiff has
       also as a result of his employment, received additional benefits such as health insurance and
       ret irement benefits. As a result of his firing, Plaintiff will not [sic] longer receive such
       benefits.

In April 1992, Burks replaced the original petition with a first amended pet ition containing the

following language:

       Defendant's firing of Plaintiff is a violation of Article 8307(c) Texas Revised Civil Statutes
       which prevents employers from firing workers who have filed worker's compensation claims.
       Plaintiff was fired immediately upon his return to work from being off due to an on-the-job
       injury, and further his employer denied his long-term disability benefits. The defendants'
       actions constitute an intentional infliction of emotional distress.

                                            ******

       Plaintiff would further show the Court that during his employment with AMERADA HESS
       CORPORATION he worked overtime and was never compensated for it or received any
       comp time. Plaintiff has overtime due and owing in the amount of $30,000.00.

Within thirty days of the filing of the second amended petition, Hess removed the case on the ground

that Burks's claim for elimination of long-term disability benefits was preempted by ERISA.

       In September 1992, Burks filed his second amended petition, which was identical to the first

amended petition except that it omitted the paragraph containing the overtime compensation claim.

Thus, the second amended petition contained the following statement:

       Defendant's firing of Plaintiff is a violation of Article 8307(c) Texas Revised Civil Statutes
       which prevents employers from firing workers who have filed worker's compensation claims.
       Plaintiff was fired immediately upon his return to work from being off due to an on-the-job
       injury, and further his employer denied his long-term disability benefits. The defendants'
       actions constitute an intentional infliction of emotional distress.

       In November 1992, the district court ordered the case remanded to state court1 and rejected

Hess's motion to reconsider the remand, holding that the emotional distress claim contained in the

second amended complaint was not preempted.

                                                II.

       The first issue we must deal with is whether we have appellate jurisdiction over the remand

order. At first glance, 28 U.S.C. § 1447(d) appears to preclude appellate review of any remand

order. It reads,

       An order remanding a case to the State court from which it was removed is not reviewable

   1
    The court reasoned that it had "allowed plaintiff to amend his petition and omit any allegation
that his emotional distress resulted from a denial of benefits." In truth, the second amended
complaint still alleged the emotional distress claim.
          on appeal or otherwise, except that an order remanding a case to the State court from which
          it was removed pursuant to section 1443 of this title shall be reviewable by appeal or
          otherwise.

           Despite its broad language, § 1447(d) applies only to remands made pursuant to § 1447(c).

Thermtron Prods. v. Hermansdorfer, 423 U.S. 336, 350-52, 96 S.Ct. 584, 593-94, 46 L.Ed.2d 542

(1976). Section 1447(c) provides two grounds for remand: (1) a defect in removal procedure and

(2) lack of subject matter jurisdict ion. The district court's rationale for remanding is that it has

discretion not to exercise its jurisdiction over pendent state claims.2 Because this rationale is not a

ground for remand under § 1447(c),3 we can review the remand order.4 J.O. v. Alton Community

Unit School Dist. 11, 909 F.2d 267 (7th Cir.1990) (order based upon district court's discretion to

remand pendent state claims is reviewable); Rothner v. City of Chicago, 879 F.2d 1402 (7th

   2
       According to the district court,

                  However, the issue before the court is not whether the case was properly removed,
                  but whether the court should remand the case to state court when only state law
                  claims remain.

                          The Supreme Court has held 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, 108 S.Ct. 614, 98 L.Ed.2d 720
                  (1988)).
   3
     Carnegie-Mellon, 484 U.S. at 343 n. 11, 108 S.Ct. at 614 n. 11 ("The remand power that we
recognize today derives from the doctrine of pendent jurisdiction and applies only to cases
involving pendent claims. Sections 1441(c) and 1447(c), as the dissent recognizes, do not apply
to cases over which the federal court has pendent jurisdiction. Thus, the remand authority
conferred by the removal statute and the remand authority conferred by the doctrine of pendent
jurisdiction overlap not at all."). Although § 1447(c) has been amended since Carnegie-Mellon
was decided, the Supreme Court's analysis continues to apply.
   4
     We can review an order to remand if the district court affirmatively states a non-§ 1447(c)
ground for remand. See Soley v. First Nat'l Bank of Commerce, 923 F.2d 406, 409 (5th
Cir.1991); In re Merrimack Mut. Fire Ins. Co., 587 F.2d 642, 647 (5th Cir.1978) ("Thermtron
announced only a narrow rule that was intended to be limited to the extreme facts of that case, in
which a district judge stated openly that he was relying on a non-§ 1447(c) ground for remand.").
Thus, a remand order is reviewable if it is based upon the Carnegie-Mellon rationale. On the
other hand, a remand order is immune from review if it is based upon a ground contained in §
1447(c), such as lack of subject matter jurisdiction. See Tillman v. CSX Transp., 929 F.2d 1023
(5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 176, 116 L.Ed.2d 139 (1991) (remand order
stated that amendment to add another party "would destroy subject matter jurisdiction in this
court"); In re Weaver, 610 F.2d 335, 337 (5th Cir.1980); Merrimack, 587 F.2d at 647-48.
Cir.1989) (same) (dictum); In re Life Ins. Co. of N. Am., 857 F.2d 1190, 1193 n. 1 (8th Cir.1988);

Scott v. Machinists Automotive Trades Dist. Lodge No. 190, 827 F.2d 589, 592 (9th Cir.1987)

(same).

                                                   III.

          We review as a matter of law the district court's decision to remand the case. Although the

district court ostensibly exercised its discretion to remand a case in which federal jurisdiction has

disappeared, see Carnegie-Mellon, a district court has no discretion to remand a matter in which a

federal-law claim still exists. In re Wilson Indus., 886 F.2d 93, 96 (5th Cir.1989). Because the first

and second amended complaints contain a claim that is preempted by federal law, the district court

could not decline to hear the removed case.

          Burks's second amended petition contains a claim that the denial of employee benefits by Hess

constituted an intentional infliction of emotional distress.5 The second amended petition reads,

          Plaintiff was fired immediately upon his return to work from being off due to an on-the-job
          injury, and further his employer denied his long-term disability benefits. The defendants'
          actions constitute an intentional infliction of emotional distress. [Emphasis added.]

          The district court held that Burks's complaint, although inartfully pleaded, merely asserted a

claim for emotional distress arising from wrongful termination and did not assert a claim for

emotional distress arising from denial of benefits. We disagree.

          We interpret the language quoted above to allege two different claims: first, that the firing

of Burks was an intentional infliction of emotional distress; and second, that the denial of long-term

disability benefits was an intentional infliction of emotional distress. The conjunctive phrase "and

further" distinguishes the two claims. Also, the allegation of intentional infliction of emotional

distress in the second sentence appears to relate back to both "actions": the wrongful discharge and

the denial of benefits.

          Further evidence that the two claims are separate can be found in Burks's response to Hess's

motion for partial summary judgment:


   5
   The second amended complaint was the current version of the complaint when the district
court remanded.
          [N]either is Summary Judgment proper as to the Plaintiff's claim for intentional infliction of
          emotional distress. The Defendant's [sic] actions in this case are extreme and outrageous.
          The Plaintiff was terminated the day he attempted to return from his injury. His attempting
          to return to work was against his doctor's recommendation. The Defendant's [sic] then
          advised the other employees of the company that the Plaintiff had been terminated for
          misconduct which was not true. The Defendant's [sic] conduct was further outrageous in that
          they attempted to get him to sign a release releasing them from all claims for wrongful
          termination and attempted to deny him employee benefits to which he was rightly entitled.
          These benefits were reinstated after action by the Plaintiff's lawyer. The Plaintiff has made
          no claim for the denial of these benefits but rather the Defendant's [sic] actions show their
          outrageous behavior. [Emphasis added.]

Thus, in the district court Burks sought to isolate the denial of benefits as an independent act that

inflicted emotional distress.

          In our view, Burks's second amended complaint alleges that Hess denied to him his employee

benefits and that such denial was an intentional infliction of emotional distress.6 As we held in Brown

v. Southwestern Bell Tel. Co., 901 F.2d 1250, 1254 (5th Cir.1990), a cause of action for infliction

of emotional distress arising from the denial of employee benefits is preempted by ERISA.7

           The preemption clause in ERISA preempts all state laws that relate to ERISA plans.8 A state

cause of action for emotional distress arising from the denial of employee benefits determines when

an employer can and cannot terminate an employee's benefits.

   6
    Following oral argument, Burks has filed in this court a motion for leave to file a third
amended complaint in federal district court. We deny that motion. While it appears that Burks
has had ample opportunity to amend and is engaged in an obvious and somewhat frantic maneuver
to avoid federal jurisdiction, we leave it up to the district court, in the first instance, to evaluate
any further motion for leave to amend.
   7
    In Brown, a relapse in a worker's chronic back condition allegedly prevented him from
working. The employee's supervisors visited him at his home to inform him that his claim for
additional disability benefits had been denied. They also told him that he would be fired if he did
not return to work. Later, when the employee did not return to work, he was fired.

                  The employee sued the company for, among other things, intentional infliction of
          emotional distress, alleging that the company forced him to choose between his job and
          proper treatment of his medical condition. Because the "essence of [the plaintiff's]
          complaint was that "his claim for ERISA benefits was wrongly denied,' " we held the
          emotional distress claim was preempted.
   8
       Title 29 U.S.C. § 1144(a) states,

                  Except as provided in subsection (b) of this section, the provisions of this
                  subchapter and chapter III of this chapter shall supersede any and all State laws
                  insofar as they may now or hereafter relate to any employee benefit plan described
                  in section 1003(a) of this title and not exempt under section 1003(b) of this title.
       This is not a case in which the loss of benefits is merely an element in damages related to a

claim for wrongful discharge. Burks's complaint expressly says that—independently of the wrongful

discharge—his denial of benefits is illegal under state law.

                                                 IV.

       Burks argues, alternatively, that if the second amended complaint is preempted by ERISA,

the original petition also was preempted by ERISA. Since Hess's notice of removal was filed more

than thirty days after Hess received Burks's original petition, Burks argues that the notice of removal

fails to meet the thirty-day requirement. A notice of removal must be filed within thirty days after

receipt by the defendant of a do cument from which it may first be ascertained that the case is

removable. 28 U.S.C. § 1446.

       The flaw with Burks's argument is that the original petition contained only state claims that

were not preempted by ERISA. That petition alleged that Hess unlawfully discharged Burks for filing

a worker's compensation claim. See TEX.REV.CIV.STAT.ANN. art. 8307c (West Supp.1993). The

original petition plainly stated that the loss of benefit was merely part of damages caused by the

termination:

       As a result of Defendant's unlawful action, Plaintiff has suffered damages. Plaintiff Burks has
       suffered lost wages in the past and will suffer lost wages in the future. Plaintiff has also as
       a result of his employment, received additional benefits such as health insurance and
       retirement benefits. As a result of his firing, Plaintiff will not [sic] longer receive such
       benefits. [Emphasis added.]

        A claim that unlawful termination resulted in loss of benefits is not preempted by ERISA.9

Because the original petition presented no question of federal law, the case was not removable until

Burks filed his first amended petition, which contained an ERISA-preempted claim. Hess's notice of

removal, filed within thirty days thereafter, was therefore proper.

       In closing, we express our disapproval of Burks's attempt at forum manipulation. He has tried

and failed to delete all of the federal claims from his complaint in order to get the district court to

   9
    Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir.1988); Titsch v.
Reliance Group, Inc., 548 F.Supp. 983, 985 (S.D.N.Y.1982), aff'd mem., 742 F.2d 1441 (2d
Cir.1983); Samuel v. Langham, 780 F.Supp. 424, 427 (N.D.Tex.1992); Morningstar v. Meijer,
Inc., 662 F.Supp. 555, 557 (E.D.Mich.1987); Rody v. Midland Enter., 685 F.Supp. 129
(M.D.La.1988).
remand. In Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. at 619, the Court urged the lower federal

courts to guard against such manipulation by denying motions to remand where appropriate.

       The order of remand is REVERSED, and this matter is REMANDED to the district court for

further appropriate proceedings.
