Undеr 28 U.S.C. § 1441, removal of an action from state to federal court is allowed when the federal court has “original jurisdiction” over the action because it is “founded on a claim or right arising” under federal law.
1
This appeal raises an issue concerning federal removal jurisdiction in cases in which ERISA preemption
2
is asserted as a de
*533
fense. In September 1992, the plaintiff brought a case for damages and reinstatement against his employer in a Michigan state court claiming age discrimination in violation of Michigan law. The complaint in state court contained only a state law claim. Therefore, under ordinary rules of removal jurisdiction the case could not properly be removed to federal court because it was not “founded” on federal law. In October 1992, the defendant removed the case from state to federal court on the basis of the so-called “complete preemption exception” (discussed below) to the “well-pleaded complaint rule”— the rule “that the plaintiff is the master of the complaint, that [for removal to be proper] a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court.”
Caterpillar, Inc. v. Williams,
The defendant employer contends that the doсtrine of removal based on “complete preemption” applies under ERISA because the defense to the state elaim as alleged in the defendant’s Notice of Removal is based on the fact that the plaintiff hаs taken early retirement in lieu of discharge, is receiving benefits under a retirement agreement governed by federal ERISA law and has signed a release of claims form in exchange for retirement benefits. Because the plaintiffs claim necessarily calls into question the validity of his retirement agreement which is said to be governed exclusively by federal ERISA law, the defendant contends that federal ERISA law entirely displaces state discrimination law under federal рreemption rules and vests removal jurisdiction in the federal courts under the “complete preemption” exception enunciated in
Metropolitan Life Ins. Co. v. Taylor,
Other cases decided by different panels in the Sixth Circuit conflict with the
Van Camp
decision — particularly
Alexander v. Electronic Data Sys. Corp.,
sfc ‡ s{: % ífc
Federal pre-emption is ordinarily a federаl defense to the plaintiffs suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore does not authorize removal to federal court. Gully v. First National Bank, supra [299 U.S. 109 ,57 S.Ct. 96 ,81 L.Ed. 70 (1936)]. One corollary of the well-pleaded complaint rule developed in the case law, however, is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of *534 claims is necessarily federal in character. (Emphasis added.)
Metropolitan Life Ins. Co. v. Taylor,
v The Court specifically stated “ERISA pre-emption, without more, does not convert a state claim into an action arising under federal law.”
Metropolitan Life,
at 64,
When we look past the complaint before us, the plaintiffs cause of action or basic claim has none of the characteristics of a § 1132(a)(1)(B) аction to enforce the ERISA agreement. This action claims that the defendant-employer threatened to discharge the plaintiff because of his age unless he took early retirement. It is a straight state age discrimination сase which has no counterpart or superseding cause of action in ERISA. It is an action to set aside and escape from the early retirement agreement, not to recover under it or to “enforce” it or to assert “rights to future benefits under the terms of the plan.” In his complaint, plaintiff tendered back amounts heretofore received by him under the early retirement plan. No cause of action created by ERISA may fairly be read to supersеde this age discrimination claim, and there is no claim that hostile state courts will somehow subvert enforcement of ERISA in such cases.
The action before us then is governed by the “well-pleaded complaint” rule described by the Suprеme Court in
Caterpillar, Inc. v. Williams,
[T]he presence of a federal question ... in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule — that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to havе the cause heard in state court.... [A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby seleсting the forum in which the claim shall be litigated. If a defendant could do so, the plaintiff would be master of nothing. Congress has long since decided that federal defenses do not provide a basis for removal.
Removal is allowed in § 1132(a)(1)(B) type cases under Metropolitan Life because of the Court’s conclusion that Congress intended federal law to occuрy the regulated field of pension contract enforcement. State claims for damages or injunctive relief to enforce a pension plan against an employer or trustee are subject to removal. State causes of action not covered by § 1132(a)(1)(B) may still be subject to a preemption claim under § 1144(a) (see note 2, supra) because the state law at issue may “relate to” a pension or employee benefit plan. But such actions are not subject to removal.
Removal and preemption are two distinct concepts. “The fact that a defendant might ultimately prove that a plaintiffs claims are pre-empted” — for example under § 1144(a) — “does not establish that they are removable to federal court.”
Caterpillar,
The
Van Camp
case,
supra,
on which the District Court relied in the instant ease, аllowed removal in a § 1144(a) preemption case not covered by § 1132(a)(1)(B) and then dismissed plaintiffs discrimination claim. The Court in
Van Camp
did not keep complete preemption removal and ordinary preemption doctrine separate and distinct. It mistakenly allowed removal in a case not covered by § 1132(a)(1)(B) and only arguably covered by § 1144(a). It said erroneously that plaintiffs state cause of action arises under federal law for purposes of removal but then dismissed it because federal law grants no superseding or related cause of action.
Van Camp
failed to distinguish for removal purposes between a section of a federal statute, § 1132(a)(1)(B), designed to occupy the regulatory field with respect to a particular subject and to create a superseding cause of action (namely, an action to enforce ERISA contracts by beneficiaries) and a statutory section creating ordinary preemption where conflicting state laws are arguably “superseded” without creating the right of removal, as is the ease with § 1144(a). Thus the
Van Camp
case must be overruled. Our decision here is in accord with the results reached in a similar case by the Second Circuit.
Lupo v. Human Affairs Int’l, Inc.,
Accordingly, the judgment of the District Court is REVERSED and the case REMANDED for further proceedings as outlined above.
Notes
. Section 1441(b) provides:
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
. The Employee Retirement Income and Security Act of 1974, 29 U.S.C. § 1132(e), provides for federal jurisdictiоn of actions under 29 U.S.C. 1132(a)(1)(B) "by a participant or beneficiary [in an ERISA plan] ... to recover benefits due him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his *533 rights to future benefits under the terms of the plan.” Section 1144 is the express preemption section of ERISA. It provides (with certain exceptions not relevant here) that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” (Emphasis. added.)