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KOZAR v. AT&T

April 25, 1996

MARIANN A. KOZAR, Plaintiff,
v.
AT&T, et al., Defendants.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 In accordance with its independent obligation to examine the basis for the exercise of subject matter jurisdiction, see Fed. R. Civ. P. 12(h)(3), this Court on its own motion, *fn1" asked the parties to consider the propriety of Defendants' removal of this action to this Court, and whether this action should be remanded to the state court from which it was removed, pursuant to 28 U.S.C. § 1447(c). *fn2" For the reasons set forth below, the Court finds that this action was improperly removed to this Court, and therefore, will remand the case to the Superior Court of New Jersey, Law Division, Somerset County.

 I. Facts and Procedural History.

 Plaintiff contends that Defendants' termination of her employment violated the Worker Health and Safety Act, N.J.S.A. §§ 34:6A-1 et seq., the New Jersey Public Employees' Occupational Safety and Health Act, N.J.S.A. §§ 34:6A-25 et seq., and constituted a wrongful discharge in violation of public policy. She also seeks damages for defamation and the tort of outrage. *fn3" This case was removed by Defendants to this Court on April 27, 1995.

 II. The Legal Standards Governing Removal.

 Removal is governed by 28 U.S.C. § 1441(a) which provides in relevant part that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant...to the district court of the United States..." Removal to the federal court can occur only if the district court has original jurisdiction over the action, that is, "only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987). In the absence of diversity of citizenship and the requisite amount in controversy, a district court has original jurisdiction over any action "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

 In Paragraph 5 of their Notice of Removal, Defendants allege:

 
Section 11(c) of the OSH Act, ["OSHA"] 29 U.S.C. § 660(c), provides an exclusive federal remedy for employees who have been discriminated against by their employers for exercising their rights under the OSH Act. Accordingly, this suit is a civil action arising under section 11(c) of the OSH Act, over which the United States District Courts have original jurisdiction pursuant to 28 U.S.C. § 1331.

 Thus, Defendants base, in part, their allegation of federal jurisdiction upon Section 11(c) of OSHA, which provides:

 
Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary [of Labor] alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person.

 29 U.S.C. § 660(c)(2) (emphasis supplied). By its terms, Section 11(c)(2) does not provide for a private right of action to be brought by an aggrieved Plaintiff. Instead, Congress has given the Secretary of Labor the exclusive right to bring an action for a violation of the Act. See Pitchford v. Aladdin Steel, Inc., 828 F. Supp. 610, 613 (S.D. Ill. 1993); Lengel v. Fisher-Price, Inc., 1991 WL 224417, at *2 (W.D.N.Y. October 28, 1991)


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