                              PUBLISHED

            UNITED STATES COURT OF APPEALS

                  FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
SONOCO PRODUCTS COMPANY,
     Plaintiff-Appellant,

      v.                                                 No. 02-2137

PHYSICIANS HEALTH PLAN,
INCORPORATED,
     Defendant-Appellee.
4444444444444444444444444444444444444444444444448

            Appeal from the United States District Court
           for the District of South Carolina, at Florence.
                  Terry L. Wooten, District Judge.
                          (CA-01-521-4-25)

                       Argued: May 7, 2003

                      Decided: July 31, 2003

         Before KING and SHEDD, Circuit Judges, and
   Frank W. BULLOCK, Jr., United States District Judge for the
     Middle District of North Carolina, sitting by designation.

____________________________________________________________

Reversed and remanded by published opinion. Judge King wrote the
opinion, in which Judge Shedd and Judge Bullock joined.

____________________________________________________________
                             COUNSEL

ARGUED: Manton McCutchen Grier, HAYNSWORTH SINKLER
BOYD, P.A., Columbia, South Carolina, for Appellant. Jeffrey Stuart
Patterson, NELSON, MULLINS, RILEY & SCARBOROUGH,
L.L.P., Columbia, South Carolina, for Appellee. ON BRIEF: H. Sim-
mons Tate, Jr., HAYNSWORTH SINKLER BOYD, P.A., Columbia,
South Carolina; James C. Cox, Jr., SALEEBY & COX, P.A., Harts-
ville, South Carolina, for Appellant. C. Mitchell Brown, Elizabeth H.
Campbell, NELSON, MULLINS, RILEY & SCARBOROUGH,
L.L.P., Columbia, South Carolina, for Appellee.

____________________________________________________________

                               OPINION

KING, Circuit Judge:

    In January of 2001, Sonoco Products Company ("Sonoco") initi-
ated this lawsuit against Physicians Health Plan, Incorporated ("PHP")1
in South Carolina state court. After PHP removed the case to federal
court, asserting that Sonoco's claims were completely preempted by
ERISA,2 Sonoco sought a remand to state court. Sonoco Prods. Co.
v. Physicians Health Plan, Inc., CA-01-521-4-25, Order (D.S.C. May
28, 2002) (the "Order"). Though the district court denied the motion
to remand, id., it certified the remand issue for interlocutory appeal
under 28 U.S.C. § 1292(b), Sonoco Prods. Co. v. Physicians Health
Plan Inc., CA-01-521-4-25, Order (D.S.C. Sept. 12, 2002) (the "Re-
vised Order"), and we granted Sonoco permission to pursue the inter-
locutory appeal, Sonoco Prods. Co. v. Physicians Health Plan, Inc.,
02-250, Order (4th Cir. Oct. 3, 2002). Because Sonoco's claims are
not completely preempted, we reverse the denial of Sonoco's motion
to remand, and we remand to the district court for such further pro-
ceedings as may be appropriate.

                                  I.

                                  A.

   Sonoco, a manufacturing business headquartered in Hartsville,
South Carolina, sponsors an ERISA-governed health care plan (the
____________________________________________________________
   1
       PHP is apparently now known as Carolina Care Plan, Incorporated.
   2
     "ERISA" refers to the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001 et seq.

                                   2
"Plan") for its employees.3 On September 13, 1999, Sonoco and PHP,
a South Carolina for-profit health maintenance organization, entered
into a two-year contract (the "Contract"), effective through December
31, 2001. Under the Contract, PHP was obligated, inter alia, (1) to
provide insurance benefits for Sonoco's South Carolina employees,
retirees, and their families (the "Plan Beneficiaries"), and (2) to limit
any premium increases for 2001 to no more than nine percent.

   On January 1, 2000, pursuant to the Contract, PHP began to pro-
vide insurance coverage to the Plan Beneficiaries. By letter of August
23, 2000, however, PHP advised Sonoco that, as of the end of Decem-
ber 2000, it was cancelling the Contract. PHP offered new contract
terms to Sonoco for 2001, under which insurance premiums could
increase by as much as eighty-five percent. Sonoco declined PHP's
offer and now alleges that it was compelled to secure alternative
insurance coverage for 2001 at substantially higher rates than those
agreed upon in the Contract.

                                   B.

   On January 19, 2001, Sonoco filed its complaint against PHP in the
Court of Common Pleas for Darlington County, South Carolina (the
"Complaint"). The Complaint asserts two state-law causes of action:
(1) breach of contract, and (2) breach of contract accompanied by a
fraudulent act (collectively, the "breach of contract claims").4 Sonoco
sought to recover damages for the difference between the premiums
agreed upon in the Contract and the sum Sonoco paid for the compa-
____________________________________________________________
   3
     ERISA governs any "employee welfare benefit plan" established or
maintained by an employer or employee organization that is "engaged in
commerce or in [an] industry or activity affecting commerce." 29 U.S.C.
§ 1003(a). An "employee welfare benefit plan" refers to "any plan, fund,
or program" established or maintained by an employer or employee orga-
nization to provide, inter alia, medical, surgical, or hospital benefits to
employees.
   4
     Sonoco alleged in the Complaint that PHP falsely accused it of "with-
holding or concealing information from PHP as a pretext for PHP's
breach of [the Contract]." This accusation serves as the factual predicate
for Sonoco's claim of breach of contract accompanied by a fraudulent
act.

                                   3
rable insurance coverage purchased when PHP repudiated its contrac-
tual obligations. On February 23, 2001, PHP removed the proceeding
to federal court in South Carolina, and it then filed a motion to dis-
miss. On March 19, 2001, Sonoco moved for a remand to the state
court.

    The district court referred both the motion to remand and the
motion to dismiss to a magistrate judge, who recommended that the
court deny remand and grant dismissal on the ground that Sonoco's
claims were "preempted" by ERISA. See Sonoco Prods. Co. v. Physi-
cians Health Plan, Inc., CA-01-521-4-25, Report and Recommenda-
tion (D.S.C. Jan. 29, 2002) (recommending denying motion to
remand); Sonoco Prods. Co. v. Physicians Health Plan, Inc., CA-01-
521-4-25, Report and Recommendation (D.S.C. Feb. 25, 2002) (rec-
ommending granting motion to dismiss). The district court accepted
the recommendation of the magistrate judge on the remand issue, but
it rejected the recommendation to dismiss. Order at 3. Accordingly,
by its Order of May 28, 2002, the court denied both the motion to
remand and the motion to dismiss. Id. While the court agreed with the
magistrate judge that Sonoco's claims were preempted by ERISA, the
court gave Sonoco thirty days to amend its Complaint to assert an
ERISA claim. Id.
   On June 7, 2002, Sonoco filed a motion to alter or amend the
Order, requesting that the court certify the remand decision for imme-
diate appeal under 28 U.S.C. § 1292(b).5 On June 21, 2002, prior to
the court's ruling on the § 1292(b) issue, Sonoco complied with the
Order and filed an amended complaint asserting ERISA claims (the
"Amended Complaint"). On September 12, 2002, the court certified
the remand issue for a § 1292(b) interlocutory appeal, deeming it to
be a "controlling question of law as to which there is substantial
____________________________________________________________
    5
      Section 1292(b) of Title 28 authorizes interlocutory appeals from cer-
tain orders of the district courts in specific and limited circumstances.
The statute provides that, when a district judge is "of the opinion that [an
order not otherwise appealable] involves a controlling question of law as
to which there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation," a Court of Appeals may, "in its discretion,
permit an appeal to be taken from such order." 28 U.S.C. § 1292(b).

                                  4
ground for difference of opinion and [in which an] immediate appeal
from [the] [O]rder may materially advance the ultimate termination
of the litigation." Revised Order at 2. On October 3, 2002, we granted
Sonoco permission to appeal. Sonoco Prods. Co. v. Physicians Health
Plan, Inc., 02-250, Order (4th Cir. Oct. 3, 2002).

                                   II.

    We review de novo questions of subject matter jurisdiction, "in-
cluding those relating to the propriety of removal." Mayes v. Rapo-
port, 198 F.3d 457, 460 (4th Cir. 1999). The burden of demonstrating
jurisdiction resides with "the party seeking removal." Mulcahey v.
Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.
1994). We are obliged to narrowly interpret removal jurisdiction
because the removal of proceedings from state courts raises "signifi-
cant federalism concerns." Id.

                                  III.

   On appeal, Sonoco maintains that the district court erred in declin-
ing to remand this case to state court. Specifically, it asserts that the
court applied an incorrect legal standard in its preemption analysis
and that, using the proper standard, remand is appropriate. PHP
responds that, even if the court erred in its preemption analysis, the
breach of contract claims are nonetheless completely preempted, and
the motion to remand was properly denied.

                                  A.

    Before addressing whether the district court erred in denying the
motion to remand, we briefly review the scope of removal jurisdiction
generally, and with respect to ERISA specifically. Typically, an
action initiated in a state court can be removed to federal court only
"if it might have been brought in [federal court] originally." Darcan-
gelo v. Verizon Communications, Inc., 292 F.3d 181, 186 (4th Cir.
2002) (internal quotation marks omitted) (alternation in original). The
federal courts possess original jurisdiction over, among other things,
"civil actions arising under the Constitution, laws, or treaties of the
United States." 28 U.S.C. § 1331. Generally, "a cause of action arises

                                   5
under federal law only when the plaintiff's well-pleaded complaint
raises issues of federal law." Metro. Life Ins. Co. v. Taylor, 481 U.S.
58, 63 (1987).

    In analyzing whether the district court erred in denying the motion
to remand, we must first distinguish between ordinary preemption
(also known as "conflict preemption") and the jurisdictional doctrine
of "complete preemption." Under ordinary or conflict preemption,
"state laws that conflict with federal laws are preempted, and preemp-
tion is asserted as `a federal defense to the plaintiff's suit.'" Darcan-
gelo, 292 F.3d at 186-87 (quoting Taylor, 481 U.S. at 63). Because
conflict preemption constitutes a defense to a cause of action, the
Supreme Court has recognized that it normally "`does not appear on
the face of a well-pleaded complaint, and, therefore, does not autho-
rize removal to federal court.'" Id. (quoting Taylor, 481 U.S. at 63).

    The jurisdictional doctrine of complete preemption, by contrast,
does provide a basis for federal jurisdiction: where "Congress `so
completely preempt[s] a particular area that any civil complaint rais-
ing this select group of claims is necessarily federal in character,'" the
state law claims are converted into federal claims, which may be
removed to federal court. Id. (quoting Taylor, 481 U.S. at 63-64)
(alteration in original). As Judge Luttig recently observed in King v.
Marriott International, Inc., ___ F.3d ___, No. 02-2139, slip op. at
5 (4th Cir. July 28, 2003), when complete preemption exists, "the
plaintiff simply has brought a mislabeled federal claim, which may be
asserted under some federal statute."

    In the ERISA context, the doctrines of conflict preemption and
complete preemption are important, and they are often confused. Sec-
tion 514 of ERISA defines the scope of ERISA's preemption of con-
flicting state laws: state laws are superseded insofar as they "relate to"
an ERISA plan. 29 U.S.C. § 1144(a). The fact that a state law claim
is "preempted" by ERISA — i.e., that it conflicts with ERISA's
exclusive regulation of employee welfare benefit plans — does not,
however, provide a basis for removing the claim to federal court. The
only state law claims properly removable to federal court are those
that are "completely preempted" by ERISA's civil enforcement provi-
sion, § 502(a).6 Darcangelo, 292 F.3d at 187 (emphasizing that the
____________________________________________________________
   6
       Section 502(a) provides, in relevant part, that:

            A civil action may be brought . . . (3) by a participant, benefi-

                                     6
civil enforcement provision "completely preempts state law claims
that come within its scope and converts these state claims into federal
claims under § 502"); see also Taylor, 481 U.S. at 65-66 (same).

    In denying Sonoco's motion to remand, the district court concluded
that the breach of contract claims in the Complaint "relate[ ] to
ERISA," and that they were thus "preempted" pursuant to § 514.
Order at 2. On the basis of this conclusion, the court justified its
denial of the motion to remand and its assertion of federal jurisdiction
over Sonoco's state law claims. Contrary to this reasoning, however,
conflict preemption under § 514 does not provide a basis for federal
jurisdiction. Rather, it provides a defense to a state law claim that may
be asserted in state court. Instead of focusing on § 514 conflict pre-
emption, the court should have assessed whether Sonoco's state law
claims were, as PHP asserted, completely preempted by ERISA's
§ 502(a). In other words, the court should have inquired into whether
the breach of contract claims "fit within the scope of ERISA's
§ 502(a) civil enforcement provision," and as such, whether they were
properly "converted into federal claims." Darcangelo, 292 F.3d at
187.

                                    B.

   PHP contends that, although the district court may have erred in its
preemption analysis, we should nevertheless affirm the denial of
Sonoco's motion to remand because its breach of contract claims are
completely preempted by § 502(a). The Seventh Circuit has identified
three essential requirements for complete preemption: (1) the plaintiff
must have standing under § 502(a) to pursue its claim; (2) its claim
must "fall[ ] within the scope of an ERISA provision that [it] can
enforce via § 502(a)"; and (3) the claim must not be capable of resolu-
tion "without an interpretation of the contract governed by federal
law," i.e., an ERISA-governed employee benefit plan. See Jass v.
____________________________________________________________
           ciary, or fiduciary . . . to obtain other appropriate equitable relief
           . . . to enforce any provisions of this subchapter or the terms of
           the plan.

29 U.S.C. § 1132(a)(3).

                                    7
Prudential Health Care Plan, Inc., 88 F.3d 1482, 1487 (7th Cir.
1996) (internal quotation marks omitted); see also Butero v. Royal
Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999)
(applying similar standard in complete preemption analysis). As
explained below, we conclude that Sonoco lacks standing to pursue
its breach of contract claims under § 502(a).7

    As noted above, the threshold requirement for complete preemp-
tion is that the plaintiff possess standing to assert its claim under
§ 502(a). Butero, 174 F.3d at 1212; Jass, 88 F.3d at 1487. Sec-
tion 502(a) specifies the types of claims that may properly be pursued
under ERISA, as well as the parties entitled to assert those claims.
More specifically, § 502(a)(3) is the part of § 502(a) that, according
to PHP, applies to Sonoco's breach of contract claims. Importantly,
the only parties entitled to pursue an ERISA claim under § 502(a)(3)
are "participants," "beneficiaries," and "fiduciaries." See 29 U.S.C.
§ 1132(a)(3). And it is uncontroverted that Sonoco is neither a partici-
pant nor a beneficiary under the Plan.8 Thus, Sonoco has standing
under § 502(a)(3) only if (1) it is a "fiduciary" under ERISA, and (2)
it is asserting the breach of contract claims in its fiduciary capacity.9
____________________________________________________________
   7
     Having determined that Sonoco lacks standing to pursue its breach of
contract claims under § 502(a), it is unnecessary for us to assess the other
prongs of the complete preemption analysis.
    8
      ERISA defines a "participant" as "any employee . . . who is or may
become eligible to receive a benefit of any type from an employee bene-
fit plan." 29 U.S.C. § 1002(7). A "beneficiary" is "a person designated
by a participant, or by the terms of an employee benefit plan, who is or
may become entitled to a benefit thereunder." Id. § 1002(8). Under these
definitions, an employer can be neither a participant nor a beneficiary.
   9
     PHP contends that Sonoco, by asserting § 502(a) claims in its
Amended Complaint (as required by the Order), has waived any argu-
ment that its breach of contract claims do not "fit within the scope of
ERISA's § 502(a) civil enforcement provision," and that it is not suing
as a fiduciary. Prior to filing its Amended Complaint, however, Sonoco
moved for a remand to state court. This assertion of lack of federal juris-
diction is "all that was required to preserve [its] objection to removal."
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 74 (1996). We decline to con-
clude that, in abiding by the Order and filing its Amended Complaint,
Sonoco is precluded from asserting that removal was improper. See King,
___ F.3d ___, slip op. at 6-7 (holding that plaintiff did not waive objec-
tion to removal by amending complaint to assert cause of action under
ERISA).

                                  8
See Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1465 (4th Cir.
1996) ("[A] fiduciary's standing is not for any and all purposes; rather
a fiduciary has standing to bring actions related to the fiduciary
responsibilities it possesses." (internal quotation marks omitted)).

    An employer that establishes or maintains an employee benefit
plan, such as Sonoco, is a plan sponsor. 29 U.S.C. § 1002(16)(B).
And a plan sponsor acts as a fiduciary only to the extent that it "exer-
cises `any discretionary authority' over the management or adminis-
tration of a plan."10 Coyne & Delany, 98 F.3d at 1465. A plan sponsor
does not, however, act as a fiduciary simply "by performing settlor-
type functions such as establishing a plan and designing its benefits."
Id. Importantly, "the same entity may function as an ERISA fiduciary
in some contexts but not in others." Darcangelo, 292 F.3d at 192.
Accordingly, a plan sponsor is entitled to wear different hats: it may
perform some functions as a fiduciary to the plan, while it may per-
form other functions on its own behalf, i.e., in a non-fiduciary capac-
ity. A plan sponsor, however, only possesses standing to pursue
actions under § 502(a) that are "related to the fiduciary responsibili-
ties it possesses." Coyne & Delany, 98 F.3d at 1465 (internal quota-
tion marks omitted).

    Although Sonoco acknowledges that it may owe some fiduciary
responsibilities to the Plan Beneficiaries, it maintains that it is not
pursuing the breach of contract claims in its fiduciary capacity, and
thus that it lacks standing to pursue those claims under § 502(a)(3).
As noted, a plan sponsor acts in a fiduciary capacity only to the extent
that its claims relate to carrying out its fiduciary responsibilities. See
Coyne & Delany, 98 F.3d at 1466 (concluding that plan sponsor has
"standing to sue as a fiduciary `to the extent' that it challenges, as vio-
lative of ERISA . . ., any act or practice which pertains to" the fidu-
ciary responsibilities it possesses). Where, however, a plan sponsor's
claims in a lawsuit relate solely to its own injuries, and not to its fidu-
ciary responsibilities to the plan or to the plan's participants and bene-
____________________________________________________________
   10
      Under ERISA, a person "is a fiduciary with respect to [an ERISA]
plan to the extent . . . [that] he exercises any discretionary authority or
discretionary control respecting management of [the] plan [or] has any
discretionary authority or discretionary responsibility in the administra-
tion of [the] plan." 29 U.S.C. § 1002(21)(A).

                                   9
ficiaries, it is not acting as an ERISA fiduciary under 29 U.S.C.
§ 1002(21)(A). Sonoco alleges in its Complaint that PHP breached its
contractual obligation to provide health insurance coverage to the
Plan Beneficiaries,11 and it seeks to recover the expenses it incurred
as a result of PHP's breach. Sonoco maintains that it suffered harm
separate and apart from any injury to the Plan Beneficiaries, and it is
for that harm that it is attempting to recover.

    In an analogous situation, the Ninth Circuit has ruled that an
employer's malpractice claim against an accountant that the employer
had retained to "set up [an ERISA-governed] pension and profit plan"
was not completely preempted. Toumajian v. Frailey, 135 F.3d 648,
656 (9th Cir. 1998). There, the court concluded that the employer's
claim did not fit within § 502(a), in part because the employer was
"not seeking relief on behalf of an ERISA plan," but instead was
attempting to recover for harm that the employer suffered as a result
of the accountant's misfeasance. Id. Similarly, the Sixth Circuit, in
Michigan Affiliated Healthcare Systems, Inc. v. CC Systems Corp. of
Michigan, 139 F.3d 546 (6th Cir. 1998), concluded that an employer's
claims against a third-party administrator and a stop-loss insurer for
its employee benefit plan were not completely preempted since the
employer was "proceeding on a breach of contract cause of action, not
on behalf of the beneficiary." Id. at 550; see also Butero, 174 F.3d at
1212 (concluding that employer lacked standing under § 502(a) to
pursue a claim for breach of contract to provide insurance).

     As we have pointed out, Sonoco, on one hand, owes certain fidu-
ciary obligations to the Plan Beneficiaries, and there are circum-
stances where it may act in a fiduciary capacity and seek to enforce
the rights of the Plan Beneficiaries. On the other hand, Sonoco has
interests of its own, and it may also act to protect those interests.
____________________________________________________________
 11
    Importantly, "a contract of insurance sold to a plan is not itself `the
plan.'" Wallace v. Reliance Standard Life Ins. Co., 318 F.3d 723, 724
(7th Cir. 2003) (emphasis in original); see also Pegram v. Herdrich, 530
U.S. 211, 223 (2000) (concluding that "when employers contract with an
HMO to provide benefits to employees subject to ERISA, the provisions
of documents that set up the HMO are not, as such, an ERISA plan").
Accordingly, the Contract PHP allegedly breached is not the Plan itself,
but a contract to provide insurance coverage.

                                 10
Sonoco has standing under § 502(a)(3), however, only as to those
claims that are "related to the fiduciary responsibilities it possesses."
Coyne & Delany, 98 F.3d at 1465 (internal quotation marks omitted).
Sonoco is seeking by the Complaint to recover for harm that it suf-
fered from PHP's breach, namely the increased costs it incurred when
PHP refused to provide insurance coverage under the Contract. The
harm that Sonoco suffered is therefore independent from any harm
suffered by the Plan Beneficiaries. Sonoco is not asserting the breach
of contract claims in its fiduciary capacity, but rather it is seeking to
enforce its own rights under the Contract.12 As a result, Sonoco has
no standing to assert the breach of contract claims under § 502(a)(3);
those claims are not completely preempted; and the federal courts
lack jurisdiction over them. In these circumstances, the district court
erred in denying Sonoco's motion to remand.

                                  IV.

   Pursuant to the foregoing, we reverse the district court's denial of
Sonoco's motion to remand, and we remand to the district court for
such further proceedings as may be appropriate.

                               REVERSED AND REMANDED
____________________________________________________________
    12
       PHP contends that Sonoco's fiduciary role will be an issue in this liti-
gation because Sonoco has alleged breach of contract accompanied by a
fraudulent act. Specifically, PHP asserts that, by alleging that PHP
falsely accused it of withholding information, Sonoco's duty as the plan
administrator "to provide accurate information to PHP regarding the
[P]lan's historical claims and experience," will be implicated. Appellee's
Br. at 14. Assuming this to be true, and assuming that Sonoco's fiduciary
role will have some tangential relationship to the litigation, the fact
remains that Sonoco is not asserting the breach of contract claims in its
fiduciary capacity. Cf. Geller v. County Line Auto Sales, Inc., 86 F.3d 18,
23 (2d Cir. 1996) (concluding state law fraud claim was not conflict pre-
empted "simply because it may have a tangential impact on employee
benefit plans"). As a result, Sonoco lacks standing to bring the breach of
contract claims under § 502(a), and thus those claims are not completely
preempted by ERISA.

                                   11
