                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 05-2572
                                 ___________

Alice Roberts; Kevin Hales; Christy     *
Millsap; Tim Millsap, Individually and  *
on behalf of all other natural persons  *
similarly situated,                     *
                                        *
            Appellees,                  *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
BJC Health System, doing business as * Eastern District of Missouri.
BJC Healthcare; Missouri Baptist        *
Medical Center; Sisters of Mercy        *
Health System; St. John’s Mercy Health *
System, doing business as St. John’s    *
Mercy Medical Center; Reconstructive *
and Microsurgery Associates, Inc.,      *
                                        *
            Appellants.                 *
                                   ___________

                        Submitted: March 16, 2006
                            Filed: June 21, 2006
                                 ___________

Before WOLLMAN and RILEY, Circuit Judges, and ROSENBAUM,1 District
      Judge.
                           ___________



      1
       The Honorable James M. Rosenbaum, Chief Judge, United States District
Judge for the District of Minnesota, sitting by designation.
RILEY, Circuit Judge.

       Alice Roberts, Kevin Hales, Christy Millsap, and Tim Millsap (collectively
Appellees) filed a putative class action in Missouri state court against BJC Health
System, doing business as BJC Healthcare; Missouri Baptist Medical Center; Sisters
of Mercy Health System; St. John’s Mercy Health System, doing business as St.
John’s Mercy Medical Center; and Reconstructive and Microsurgery Associates, Inc.
(RMA) (collectively Appellants), alleging Appellants overcharged for certain medical
procedures. Appellants removed the case to federal court based on federal question
subject matter jurisdiction, claiming the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. §§ 1001-1461, completely preempted Appellees’ claims. The
district court2 remanded the matter back to state court for lack of federal question
subject matter jurisdiction. Appellants appeal. Because 28 U.S.C. § 1447(d) bars
appellate review of remand orders based on lack of subject matter jurisdiction, we
dismiss the appeal.

I.     BACKGROUND
       Appellees filed this action in Missouri state court, alleging RMA “miscoded”
certain medical procedures, the other Appellants knew of or were involved in this
miscoding, and as a result Appellants overcharged Appellees. After removing the
action to federal court, Appellants moved to dismiss, claiming Appellees lacked
standing because Appellees did not allege they actually paid for any of the medical
procedures. Appellees moved to remand the case back to the Missouri state court,
contending ERISA did not preempt their claims.

       The district court concluded Appellees lacked standing because they had not
sustained an injury in fact, and accordingly, the court lacked subject matter


      2
        The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.

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jurisdiction. Based on this conclusion, the district court dismissed the case without
prejudice and denied Appellees’ motion to remand as moot. Upon Appellees’ motion
to amend the court’s order and judgment, the district court (1) clarified it never made
a determination regarding whether ERISA preempted Appellees’ claims, and
(2) vacated its previous order and remanded the case back to state court for lack of
federal question subject matter jurisdiction.

       Appellants appeal the district court’s remand order, arguing that after the
district court determined Appellees lacked standing, the court should have dismissed
the case without prejudice, as the court did in its first order, rather than modifying its
opinion and remanding the case. Appellees move to strike or dismiss the appeal,
arguing that because the district court remanded the case for lack of subject matter
jurisdiction, this court cannot review the district court’s remand order.

II.    DISCUSSION
       Under 28 U.S.C. § 1447(c) and (d) and our case law precedent, we cannot
review the district court’s remand order. Because Appellees lacked standing, the
district court lacked subject matter jurisdiction. Faibisch v. Univ. of Minn., 304 F.3d
797, 801 (8th Cir. 2002) (holding “if a plaintiff lacks standing, the district court has
no subject matter jurisdiction” (citation omitted)). “If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c). When a district court remands a case based
on a lack of subject matter jurisdiction under section 1447(c), “a court of appeals lacks
jurisdiction to entertain an appeal of the remand order.” Things Remembered, Inc. v.
Petrarca, 516 U.S. 124, 127-28 (1995); see also 28 U.S.C. § 1447(d). Thus, when a
case is remanded under section 1447(c), the remand order must stand “whether
erroneous or not and whether review is sought by appeal or by extraordinary writ.”
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976), overruled on
other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15 (1996); see
also Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 623

                                           -3-
(8th Cir. 1997). Finally, we note that although arising in a different context than the
case before us, the Supreme Court applied similar reasoning in its recent decision in
Kircher v. Putnam Funds Trust, No. 05-409, 2006 WL 1640102, at *9 (U.S. June 15,
2006) (holding where the district court remanded the removed action to state court for
lack of subject matter jurisdiction under the Securities Litigation Uniform Standards
Act of 1998, the district court’s remand order is unreviewable under 28 U.S.C.
§ 1447(d)).

       We recognize our holding today creates a potential Catch-22 for the parties: the
district court dismissed the action for lack of subject matter jurisdiction because
Appellees failed to allege Article III standing, and upon remand, the state court might
dismiss the action for lack of jurisdiction because of ERISA preemption.3 The parties
may find themselves unable to proceed in either federal or state court. One remedy
to this dilemma is including a class member in the case who sustained an injury in
fact.

      3
       We note, however, if this were a genuine Catch-22 holding, we may not have
explained our decision:

      “‘What right do you have?’ the girls said. ‘Catch-22,’ the men said. All
      they kept saying was ‘Catch-22, Catch-22.’ What does it mean, Catch-
      22? What is Catch-22?”

      “Didn’t they show it to you?” Yossarian demanded, stamping about in
      anger and distress. “Didn’t you even make them read it?”

      “They don’t have to show us Catch-22,” the old woman answered. “The
      law says they don’t have to.”

      “What law says they don’t have to?”

      “Catch-22.”

Joseph Heller, Catch-22 375 (Simon & Schuster 1999) (1961).

                                         -4-
III.  CONCLUSION
      We grant Appellees’ motion and dismiss this appeal pursuant to 28 U.S.C.
§ 1447(d) for lack of appellate jurisdiction.
                       ______________________________




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