Decatur Hosp. Auth. v. Aetna Health, Inc., 16-10313

• Decision Date: 18 April 2017
• Docket Number: No. 16-10313,16-10313
• Citation: 854 F.3d 292
• Parties: DECATUR HOSPITAL AUTHORITY, doing business as Wise Regional Health System, Plaintiff–Appellee v. AETNA HEALTH, INCORPORATED, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

854 F.3d 292

DECATUR HOSPITAL AUTHORITY, doing business as Wise Regional Health System, Plaintiff–Appellee

v.AETNA HEALTH, INCORPORATED, Defendant–Appellant

No. 16-10313

United States Court of Appeals, Fifth Circuit.

FILED April 18, 2017

Jennifer R. Ecklund, Esq., Andrew Christian Cookingham, Reed Cullen Randel, Attorney, Thompson & Knight, L.L.P., Dallas, TX, Derrick Scott Boyd, Simpson Boyd Powers & Williamson, Decatur, TX, for Plaintiff–Appellee.

John Bruce Shely, Esq., Mitchell A. Reid, Andrews Kurth Kenyon, L.L.P., Houston, TX, for Defendant–Appellant.

Before JOLLY, HIGGINBOTHAM, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

This appeal relates to ongoing litigation between Wise Regional Health System, a Texas municipal hospital authority, and Aetna Health Inc., an insurance plan administrator, regarding medical insurance claims Wise Regional submitted on behalf of its patients. Wise Regional sued Aetna in Texas state court, and, when Aetna removed, it relied in part upon the federal officer removal statute, 28 U.S.C. § 1442. Finding Aetna's removal untimely, the district court remanded and awarded attorneys' fees.

We have appellate jurisdiction over the remand order, and, upon de novo review, we AFFIRM. We also perceive no abuse of discretion in the separate attorneys' fee award, and we AFFIRM.

BACKGROUND

On May 27, 2015, Wise Regional sent Aetna a demand letter "to address claims Wise [Regional] has against Aetna for Aetna's violations of the timely claim processing requirements imposed by the Texas Prompt Pay Act." Wise Regional's letter claimed state-law late-payment penalties in excess of $17.4 million had accrued.

Wise Regional's demand letter made three specific requests. First, the letter asked Aetna to contact Wise Regional's counsel to coordinate a "secure, HIPPA-compliant" transmission of "a detailed list of the claims at issue." Second, "[t]o make pre-suit negotiations more productive," Wise Regional asked Aetna to conduct a "line-of-business analysis" on the claims list to identify "the payment arrangement (e.g., self-funded ERISA, fully insured, Medicare Advantage, FEHBA)" implicated by each claim.¹ Third, Wise Regional asked Aetna to provide information regarding any claim "Aetna believes was timely paid." Aetna's counsel asked for the claims list on June 19, 2015, and Wise Regional provided it three days later.

On June 24, two days after sending the claims list, Wise Regional filed in Texas state court a lawsuit predicated upon insurance claims it alleges Aetna paid, but paid too slowly. On November 4, 2015, Wise Regional provided objections and answers to Aetna's first set of interrogatories. On December 4, 2015, Aetna removed the case to federal court pursuant to 28 U.S.C. § 1441(a) and 28 U.S.C. § 1442.

Wise Regional filed a motion to remand, and the district court issued a remand order on February 19, 2016. The district court's memorandum opinion stated that "the action should be remanded because [Aetna] did not timely remove it."

Wise Regional also filed a motion for attorneys' fees. The district court granted that motion on March 7, 2016, and awarded Wise Regional $14,500. The district court ruled that Aetna "lacked an objectively reasonable basis for seeking removal of this action almost five months after expiration of the thirty-day deadline for removal," and stated that "[Aetna's] contention that it first ascertained from the interrogatory answers that the case is one that was removable borders on being absurd considering that the state court pleading of [the] plaintiff provided exactly that same information."

Aetna timely noticed its appeal of both the remand order and the attorneys' fees award.

JURISDICTION

The parties dispute whether this court has jurisdiction to review the remand order. Aetna contends that we may review the remand order under 28 U.S.C. § 1447(d), which provides:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

28 U.S.C. § 1447(d). Wise Regional contends that because the district court based its remand order on a defect in removal procedure (here, timeliness), we must withhold appellate review. As discussed below, we conclude that this court possesses appellate jurisdiction over the remand order.

As the parties correctly acknowledge, we also have jurisdiction to review the award of attorneys' fees. See Miranti v. Lee , 3 F.3d 925, 927–28 (5th Cir. 1993) (holding "that § 1447(d) does not prohibit review by this court of the order of costs and fees"); see also Garcia v. Amfels, Inc. , 254 F.3d 585, 587 (5th Cir. 2001).

STANDARD OF REVIEW

We review the district court's remand order de novo , "without a thumb on the remand side of the scale." Savoie v. Huntington Ingalls, Inc. , 817 F.3d 457, 462 (5th Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 339, 196 L.Ed.2d 262 (2016). "The decision of the district court to award attorneys' fees is reviewed for an abuse of discretion." Garcia , 254 F.3d at 587.

DISCUSSION

As a threshold matter, this appeal requires us to analyze our appellate jurisdiction over the district court's remand order. We hold that appellate jurisdiction exists. Applying de novo review, we hold that remand was proper. Finally, we conclude the district court did not abuse its discretion by awarding attorneys' fees.

I. Appellate jurisdiction

"Orders remanding a case to state court are generally not reviewable." Savoie , 817 F.3d at 460. "The statute governing removal procedure [i.e., 28 U.S.C. § 1447(d) ] provides for only two exceptions: remand orders involving certain civil rights cases, 28 U.S.C. § 1443, and remand orders involving the federal officer removal statute, 28 U.S.C. § 1442." Id. "Our unusual ability to review a remand order in [the Section 1442 ] context reflects the importance Congress placed on providing federal jurisdiction for claims asserted against federal officers and parties acting pursuant to the orders of a federal officer." Id.

Wise Regional notes that the district court expressly based its remand order on the untimeliness of Aetna's removal, and it contends this ground for remand bars our review. "Untimely removal is a defect in removal procedure," Belser v. St. Paul Fire & Marine Ins. Co. , 965 F.2d 5, 8 (5th Cir. 1992), and we ordinarily lack jurisdiction to review a remand order based on such a defect, see Price v. Johnson , 600 F.3d 460, 462 (5th Cir. 2010). Here, however, the fact that Aetna relied upon the federal officer removal statute in its notice of removal permits appellate review.

This conclusion flows from the text of Section 1447(d). As the Supreme Court observed in Kircher , Section 1447(d)"specifically excepts certain [statutory] actions from its bar." Kircher v. Putnam Funds Trust , 547 U.S. 633, 640 n.7, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006).² Put another way, "Congress has, when it wished, expressly made 28 U.S.C. § 1447(d) inapplicable to particular remand orders ." Id. at 641 n.8, 126 S.Ct. 2145 (emphasis added). In 2011, Congress expressly made Section 1447(d)'s bar inapplicable to "an order remanding a case to the State court from which it was removed pursuant to ... section 1442...." 28 U.S.C. § 1447(d).³ Like the Seventh Circuit, "[w]e take both Congress and Kircher at their word in saying that, if appellate review of an ‘order’ has been authorized, that means review of the ‘order.’ Not particular reasons for an order, but the order itself." Lu Junhong v. Boeing Co. , 792 F.3d 805, 812 (7th Cir. 2015) ; see also 14C Charles Alan Wright et al., Federal Practice & Procedure § 3740 n. 30.50 (4th ed., West) (updated Jan. 2017) ("The Removal Clarification Act of 2011 amends Section 1447(d) to exempt remands to State court, of actions removed under Section 1442, from the prohibition on review that Section 1447(d) has heretofore imposed on all removals except those of civil rights cases removed under Section 1443."); 15A Charles Alan Wright et al., Federal Practice & Procedure § 3914.11 (2d ed., West) (updated Jan. 2017) ("Although § 1447(d) allows review of the ‘order remanding’ the case, it has been held that review is limited to removability under § 1443. Review should instead be extended to all possible grounds for removal underlying the order. ) (emphasis in original).

In Robertson v. Ball , we declined to review "the part of [a] remand order" expressing a Section 1447(c) ground (lack of subject matter jurisdiction) for rejecting a party's reliance upon a portion of the general removal statute, Section 1441(b). See 534 F.2d 63, 65 (5th Cir. 1976). Robertson implies only that we cannot review a remand order (or a portion thereof) expressly based on a Section 1447(c) ground when the basis for removal is a statute that, like Section 1441, Section 1447(d) does not specifically exempt from Section 1447(c)'s bar.

By recognizing "[t]he exception in [Section] 1447(d)'s prohibition of appellate review for remands of removals effected under [Section] 1443 ," Robertson supports our elevation of Aetna's purported Section 1442 basis for removal (which supports appellate review) over the district court's articulation of a Section 1447(c) ground for remand (which would ordinarily foreclose appellate review). See 534 F.2d at 66 n.5 (emphasis added); see also Charter School of Pine Grove, Inc. v. St. Helena Parish School Bd. , 417 F.3d 444, 446 (5th Cir. 2005) (per curiam) (stating that "we may review an order to remand based on lack of subject matter jurisdiction [i.e., a Section 1447(c) ground for remand] when the case remanded was removed pursuant to 28 U.S.C. § 1443 [i.e., a statute Section 1447(d) excepts from Section 1447(c)'s bar on reviewability].").

II. Merits of the remand order

Having established our jurisdiction to review the remand order, we consider its merits de novo ....