union, nor does it say whether the other employees received a severance benefit plus some other kind of benefit, or no severance benefit but some other kind of benefit instead.
What it does say, for each plaintiff, is that had the individual been 55 years or more old, and was treated as were those of that age, each would have received benefits worth $ X more than was paid (each amount being in excess of $10,000).
It then alleges that Otis' action in paying greater benefits to those 55 years of age or more, with 25 years or more of service, than was paid to those under 55 with like service, was an unlawful discrimination as to a term, condition or privilege of employment because of age, in violation of NJSA 10:5-12(a), and claim is made for the differential.
Whether or not the claims are valid ones under State law is not the question here. New Jersey statutes dealing with various kinds of discrimination under various circumstances are quite old, going back to the 1800's. The modern Law Against Discrimination originated as NJPL 1945, c.169, and was designed to fulfill guarantees of civil rights provided in the Constitution of 1844, which were continued in the Constitution of 1947, as well as in exercise of the police power and to promote the general welfare, see N.J.S.A. 10:5-2.
N.J.Const. 1844, Art. I, par. 1, declared the natural and inalienable right of pursuing and obtaining safety and happiness. Art. I, sec. 4, declared that no person was to be denied the enjoyment of any civil right, merely on account of his religious principles. N.J. Const. 1947, by Art. I, par. 1, continued the happiness clause, and enlarged the civil rights clause in Art. I, par. 5 to forbid discrimination because of religious principles, race, color, ancestry or national origin.
The New Jersey Law Against Discrimination did not list age, marital status or sex as forbidden criteria in various contexts. These were added later by amendment.
At the time "age" was added as a forbidden criterion in employment contexts but not for other circumstances, the act was also amended to include what is now N.J.S.A. 10:5-2.1, which provided in part that nothing in the Law Against Discrimination is to be construed "to interfere with the operation of the terms or conditions and administration of any bona fide retirement, pension, employee benefit or insurance plan or program." See N.J.P.L. 1962, c. 37.
These features, of course, do not tend to disclose that the case "arises" under any federal source of law. They deal only with state law, and provide no basis for removal.
The petition for removal asserts other facts. It asserts that the Harrison plant was shut down solely for financial reasons, its physical plant and equipment sold and employees terminated. It says that under a deferred compensation plan established for the Harrison plant, management employees not represented by a labor union who were 55 years of age or over and who had 25 years or more of service, were paid a special supplemental retirement benefit. This benefit is said not to have been payable by the terms of the plan to the plaintiffs as they were under age 55.
The petition asserts that plaintiffs cannot state a valid cause of action under state law because, by federal law the subject is preempted by ERISA, 29 USC § 1001, et seq. If they have claims at all, it is argued that they arise under either ERISA or the federal Age Discrimination in Employment ACT (ADEA), 29 USC § 621, et seq.
Alternatively, it is said that ERISA preemption involves interpretation of that law and ultimately the Supremacy Clause, both of which are said to be unavoidable, which go to the heart of the validity of the claims.
As a second alternative it is argued that the claims arise exclusively under ERISA as an action by "participants" or "beneficiaries" to recover benefits or enforce rights under the terms of a plan, 29 USC § 1002(7) and (8).
While it is conceded that ADEA itself contains no preemption provision in respect to state laws on age discrimination, it is argued that ERISA and ADEA taken together have this effect, and that as a consequence, the real nature of the claim is federal despite the plaintiffs' characterization of it, or that the claim is one that is exclusively governed by federal law so that plaintiffs are necessarily stating a federal cause of action no matter whether it is so articulated or not. See, e.g., such cases as Burgess v. Charlottesville, etc., 477 F.2d 40 (CA4, 1973); Romick v. Bekins Van etc., 197 F.2d 369 (CA5, 1952); Johnson v. England, 356 F.2d 44 (CA9, 1966).
This is not the situation in this case. Plaintiffs' complaint states, and is intended to state, a claim under the state statute only. No claim is made under ERISA or under ADEA. The federal questions of preemption, and the like, even assuming they are valid, are raised as defenses and to support the counterclaim for declaratory judgment. This does not provide a basis for removal, see Madsen v. Prudential Federal S & L, 635 F.2d 797 (CA10, 1980), cert. den. 451 U.S. 1018, 101 S. Ct. 3007, 69 L. Ed. 2d 389 (1981); Stone v. Stone, 632 F.2d 740 (CA9, 1980), cert. den. 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004 (1981); First Nat'l etc. v. Aberdeen etc., 627 F.2d 843 (CA8, 1980).
There is no need to review here the entire history of the removal statutes since the first Judiciary Act of 1789. It is sufficient to note that since the Act of March 3, 1887, from which the present statute, 28 USC § 1441 is derived, removal is not authorized in a case where the federal question is a matter of defense. See State of Tennessee v. Bank of Commerce, 152 U.S. 454, 14 S. Ct. 654, 38 L. Ed. 511 (1894). Only a defendant may remove, Chicago, etc. Co. v. Stude, 346 U.S. 574, 98 L. Ed. 317, 74 S. Ct. 290 (1954), and so even a plaintiff who sues in state court and has a federal counterclaim asserted against him cannot remove, Oregon, etc. v. Andrews, 458 F.2d 382 (CA9, 1972). See, also, La Chemise Lacoste v. Alligator Co., 506 F.2d 339 (CA3 1974), cert. den. 421 U.S. 937, 95 S. Ct. 1666, 44 L. Ed. 2d 94 (1975).
Another leading case is Gully v. First Nat Bank, 299 U.S. 109, 81 L. Ed. 70, 57 S. Ct. 96 (1936), where the suit sought to be removed was to collect taxes under state law from a national bank, and was ordered remanded even though the state's power to levy the tax depended on federal law.
See, also, Shamrock, etc. v. Sheets, 313 U.S. 100, 85 L. Ed. 1214, 61 S. Ct. 868 (1941) which precludes a plaintiff against whom a counterclaim is asserted from removing under the statute.
No doubt there has been considerable debate about altering these principles, as in the ALI Study of the Division of Jurisdiction, etc., adopted in 1965 and 1968 (Philadelphia, 1969). The text of § 1312 (a) there proposed would have allowed removal by a defendant on the basis of a federal defense or counterclaim, as well as by a plaintiff against whom a federal counterclaim was asserted, among others. The drafters' note says:
"Subsection (a) is a major change in present law. To allow removal on the basis of a federal defense or counterclaim is new."