FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS                 May 22, 2012
                                   TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                    Clerk of Court


 JOHN D. KIKER, M.D.; REITA K.
 KIKER,

          Plaintiffs-Appellees,
 v.

 COMMUNITY HEALTH SYSTEMS                               No. 11-2134
 PROFESSIONAL SERVICES                       (D.C. No. 2:10-CV-00830-LH-RLP)
 CORPORATION; ROSWELL CLINIC                              (D.N.M)
 CORPORATION; ROSWELL
 HOSPITAL CORPORATION, d/b/a
 Eastern New Mexico Medical Center,
 Inc.; JOHN DOES 1-10,

          Defendants-Appellants.


                             ORDER AND JUDGMENT *


Before LUCERO, McKAY, and GORSUCH, Circuit Judges.


      This appeal is about $6,137.50. That’s the amount the district court

awarded to John and Reita Kiker for the fees and costs they incurred when the

defendants wrongfully removed their state tort suit to federal court. The suit

itself was remanded to state court long ago, and the district court’s remand



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
decision is unreviewable. See 28 U.S.C. § 1447(d). All that remains in federal

court is this fee dispute.

      Why expend the effort to contest a sum surely much smaller than the cost

of this appeal, especially when the real action is in state court? At oral argument,

the defendants said they hoped for a valuable precedent making important new

ERISA preemption law.

      But resolving this appeal does not require so much. To be sure, we may

review a district court’s grant of fees and costs for a wrongful removal, even

though we may not review its remand order. See Topeka Hous. Auth. v. Johnson,

, 1248 (10th Cir. 2005). And, to be sure, a district court may grant

fees and costs only when the removing party “lacked an objectively reasonable

basis for seeking removal,” an analysis that necessarily touches on the underlying

merits of the remand decision. Martin v. Franklin Capital Corp., 

,

141 (2005). But both parties acknowledge that the defendants needed to present a

colorable claim that Dr. Kiker or his wife was a participant or beneficiary of an

ERISA plan in order to have an “objectively reasonable basis” for their removal.

See Firestone Tire & Rubber Co. v. Bruch, 

, 116-18 (1989). After

all, ERISA preempts only those claims that can be brought under its provisions

and only a participant or beneficiary can bring ERISA claims. See 29 U.S.C.

§ 1132; Aetna Health, Inc. v. Davila, 

, 210 (2004). And all this




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means our appeal turns not on high questions of law but a low question of fact:

How many hours a week was Dr. Kiker scheduled to work?

      That’s because, the parties agree, for Dr. Kiker to qualify as a participant

and his wife a beneficiary of the ERISA plan in question, the doctor had to be

scheduled to work at least 20 hours per week. And so to justify their removal as

objectively reasonable the defendants had to produce evidence suggesting a

colorable or non-frivolous argument that Dr. Kiker was scheduled to work that

much. See Arbaugh v. Y & H Corp., 

, 513 n.10 (2006).

      The district court held that the defendants failed to clear this hurdle, and

the evidence in the record supports its ruling. Time sheets submitted to the court

show that Dr. Kiker invariably worked 8 hours per day and, under his

employment contract, Dr. Kiker could work no more than 120 days a year.

Putting those documents together and doing a little math shows that Dr. Kiker

could have worked as much as an average 18.46 hours per week, close, but still

not the necessary 20 hours (120 days x 8 hours ÷ 52 weeks). For their part, the

defendants rejoin that Dr. Kiker’s professional responsibilities were serious and

might well have required him to work more than 8 hours per day. But they

present no more than surmise on this score and their surmise runs contrary to the

best evidence (Dr. Kiker’s time sheets and contract). Alternatively, the

defendants note that Dr. Kiker received compensation for vacation and sick leave

and point to a human resources personnel form recording Dr. Kiker’s employment

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with a notation reading “20 Avg hrs/Wk.” But again Dr. Kiker’s actual time

records conclusively show he did not work 20 hours per week and his

employment agreement makes no mention of any entitlement to (or provide any

schedule of) vacation or sick days on top of his contractually limited 120 days of

employment. In these particular circumstances, we agree with the district court

that the defendants failed to present a colorable claim that Dr. Kiker was entitled

to benefits under the plan. Indeed, the cases the defendants cite and rely on tend

to underscore the absence, not presence of a colorable claim here. See, e.g.,

Weber v. GE Grp. Life Assurance Co., 

, 1011-16 (10th Cir. 2008)

(holding that an employer acted arbitrarily and capriciously in denying benefits

due to those who “regularly work[] at least 30 hours per week” given evidence

that the employee “was hired and assigned to work a 40-hour week”). And

without a colorable claim, the defendants lacked an objectively reasonable basis

for removal and the award of fees and costs was proper.

      Affirmed.



                                        ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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