Opinion
No. C-00-3721 PJH
February 5, 2001,
ORDER GRANTING MOTION TO REMAND
Now before the court is plaintiffs motion for an order remanding this action to the California Workers' Compensation Appeals Board. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS plaintiffs motion for the following reasons.
INTRODUCTION
This case was originally brought before the California Workers Compensation Appeals Board ("WCAB"). Plaintiff Dana Fucci ("Fucci") alleges that while she was temporarily on total disability, her employer, defendant Pacific Bell Telephone Company ("Pacific Bell"), placed her on a company-initiated leave of absence, terminated her health benefits, and informed her that there was no guarantee of continued employment with Pacific Bell, in violation of California Labor Code § 132a. On October 10, 2000, Pacific Bell removed the case to district court, on the basis that the matter is controlled by the terms of the company disability plan, and is therefore preempted by the Labor Management Relations Act of 1947, 29 U.S.C. § 185, et seq. ("LMRA"), and by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA").
BACKGROUND
Fucci has been employed by Pacific Bell for approximately seven years. She is employed in a non-management position, represented by the Communication Workers of America ("CWA"), and covered by the terms and conditions of a collective bargaining Agreement between CWA and Pacific Bell. Fucci also participates in the Pacific Telesis Group Comprehensive Disability Benefits Plan ("the Disability Plan") and the Pacific Telesis Group Pension Plan ("the Pension Plan"), both of which, according to defendant, are qualified employee benefits plans under ERISA.
Fucci was taken off work by her treating doctor because of an industrial injury. She filed a workers' compensation claim with the State of California and received disability payments between March 24, 1997, and July 2, 1997. In March 1999, she received payments related to an approved permanent disability rating of 22.2%.
In January 2000, Fucci sought short-term benefits under the Disability Plan. The Plan Administrator (Pacific Bell) approved the payment of benefits for the period from February 5, 2000, through July 11, 2000. In May 2000, Fucci filed a petition with the State of California to reopen her workers' compensation claim. Since her claim was reopened, she has been receiving temporary worker's comp disability payments.
According to defendant, the Disability Plan pays qualified employees short-term disability benefits when they are medically certified as disabled under the terms and conditions of the Plan.
Fucci did not return to work on July 12, 2000, when her benefits under the Disability Plan expired. By letter dated August 3, 2000, Pacific Bell informed Fucci that her short-term disability benefits were not authorized after July 12, 2000. The letter stated that if Fucci did not return to work on or before August 10, 2000, and if she continued to be disabled per her treating physician, she would be placed on a Company Initiated Leave of Absence ("CIL"). While on CIL, Fucci's net credited service date (relating to pension benefits) would be negatively affected, she would not be eligible for short-term disability benefits, and her health insurance premiums would not be paid for by Pacific Bell. The letter also stated that the CIL was not a guarantee of continued employment or reinstatement, and that Pacific Bell reserved the right to terminate the CIL at any time prior to the expiration date.
Fucci did not return to work on August 10, 2000. On August 11, Pacific Bell wrote Fucci a second letter, advising her that it was placing her on a CIL through November 1, 2000, based on her continued absence related to her dispute with the Plan regarding her ability to return to work. The letter also advised that the CIL was being offered as an alternative to termination, and stated that the action being taken by the company was separate and apart from, and had no bearing on, any claims for workers' compensation benefits.
On September 6, 2000, Fucci filed an action with the WCAB under California Labor Code § 132a, which prohibits employers from discriminating against injured or disabled workers. Fucci alleged that the termination of her health benefits and Pacific Bell's "threatening to terminate" her while she was on temporary disability were discriminatory and in direct violation of § 132a. Fucci requested "[a]ll benefits available" under § 132a and "[i]mmediate reinstatement of her medical benefits."
On October 10, 2000, Pacific Bell filed a notice of removal pursuant to 28 U.S.C. § 1441 (a) and (b), on the basis that Fucci's § 132a claim was preempted by the LMRA and by ERISA. On October 27, 2000, the WCAB filed a motion to remand, on the basis that 28 U.S.C. § 1445 (c) provides that "[a] civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States;" and that Pacific Bell has not met its burden of showing that plaintiffs state claim is completely preempted. On November 7, 2000, Fucci filed a motion joining in the motion of the WCAB.
Because the court finds that plaintiffs motion should be granted, it is unnecessary to consider whether the WCAB has standing in this case to bring a motion to remand.
A. Legal Standard
A defendant in state court may remove an action to federal court so long as the action could have originally been filed in federal court.See 28 U.S.C. § 1441 (b); City of Chicago v. Int'l College of Surgeons, 522 U.S. 156, 163 (1997). Removal can be based on diversity jurisdiction and on federal question jurisdiction. 28 U.S.C. § 1441 (b). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction because of improvident removal, the case shall be remanded to state court. 28 U.S.C. § 1447 (c).
In opposing a motion to remand, the defendant bears the burden of establishing that removal was proper. Westinghouse Elec. Corp. v. Newman Holtzinger, P.C., 992 F.2d 932, 934 (9th Cir. 1993). The removal statute is construed restrictively; doubts about removal are resolved in favor of remanding the case to state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
Where federal jurisdiction is premised on the existence of a federal question, removal is proper only 1) where a federal question appears on the face of the plaintiffs well-pleaded complaint, or 2) where federal law so completely preempts the plaintiffs state law cause of action that the complaint necessarily arises under federal law. See Emard v. Hughes Aircraft Co., 153 F.3d 949, 961 (9th Cir. 1998), cert. denied, 525 U.S. 1122 (1999).
B. Motion to Remand
Fucci argues that the case should be remanded for lack of subject matter jurisdiction because 28 U.S.C. § 1445 (c) precludes the removal of state workers' compensation claims, even if a federal question is presented. Alternatively, Fucci contends that this court lacks jurisdiction because Fucci's claim is not completely preempted by the LMRA or by ERISA.
1. Whether 28 U.S.C. § 1445 (c) applies to Labor Code § 132a claims
Section 1445(c) provides, "A civil action in any State court arising under the workmen's compensation laws of such state may not be removed to any district court of the United States." California Labor Code § 132a states a general policy barring discrimination against injured workers, and specifically provides a remedy for employees who have been discriminated against by their employers in retaliation for pursuing their rights under the workers' compensation laws. See Cal. Labor Code § 132a; City of Moorpark v. Superior Court, 18 Cal.4th 1143, 1149-50 (1998).
The questions raised in this instance — whether a claim under § 132a is a claim "arising under" the workers' compensation laws of the State of California, and whether 28 U.S.C. § 1445 (c) bars removal of a § 132a claim — have not been addressed by the Ninth Circuit. The Fifth, Eighth, Tenth, and Eleventh Circuits have ruled that a cause of action created by a state legislature for workers discharged because they filed workers' compensation claims "arises under the workers' compensation laws of that state. See Reed v. Heil Co., 206 F.3d 1055, 1059-61 (11th Cir. 2000) (Alabama law); Sherrod v. American Airlines, 132 F.3d 1112, 1118 (5th Cir. 1998) (Texas law); Suder v. Blue Circle, Inc., 116 F.3d 1351, 1352 (10th Cir. 1997) (Oklahoma law); Humphrey v. Sequentia, 58 F.3d 1238, 1245-46 (8th Cir. 1995) (Missouri law); Jones v. Roadway Exp., Inc., 931 F.2d 1086, 1091-92 (5th Cir. 1991) (Texas law).
By contrast, where suit is brought under a general tort theory or a state civil rights statute prohibiting retahatory discharge, not enacted by that state's legislature to enable workers to vindicate their rights under workers' compensation laws, the courts have found that § 1445(c) does not bar removal. See, e.g., Arthur v. E.I. DuPont de Nemours Co., 58 F.3d 121, 125 (4th Cir. 1995) (West Virginia law creating exception to employer's immunity from common law tort actions, where employee's injury was caused by deliberate intention of employer, arose under common law, not under workers' compensation statutory scheme);Spearman v. Exxon Coal, USA, Inc., 16 F.3d 722, 723-25 (7th Cir.) (Illinois law of retaliatory discharge originated in general tort law of the state, not in statutory workers' compensation scheme), cert. denied, 513 U.S. 955 (1994).
The text of § 132a limits its applicability to claims brought before the WCAB. Proceedings for increased compensation . . ., or for reinstatement and reimbursement for lost wages and work benefits, are to be instituted by filing an appropriate petition with the [WCAB]. . . . The appeals board is vested with full power, authority, and jurisdiction to try and finally determine all matters specified in this section subject only to a judicial review. . . ."
Cal. Lab. Code § 132a. While the WCAB is the exclusive forum for § 132a claims, a claim under § 132a is not the exclusive remedy for a worker who claims discrimination on the basis of her injury. City of Moorpark, 18 Cal. 4th at 1158. Nevertheless, § 132a is a "workers' compensation remedy." See id. at 1154. Accordingly, based on the statutory language, the interpretation of the California Supreme Court, and the reasoning of the federal circuits that have addressed the issue, the court finds that Labor Code § 132a is a law "arising under" the workers' compensation laws of the State of California.
This finding does not end the inquiry, however, because while 28 U.S.C. § 1445 (c) will bar removal of a § 132a claim under most circumstances, the court has concluded that this bar will not apply where the § 132a claim is completely preempted by federal law.
2. Whether Fucci's § 132(a) claim is completely preempted
At the time of removal, according to defendant, Fucci was a Pacific Bell employee and was covered by the terms and conditions of a collective bargaining agreement between the Communications Workers of America and Pacific Bell. Fucci was also a participant in various employee benefit plans offered through Pacific Bell, including the Pacific Telesis Group Comprehensive Disability Benefits Plan, an employee benefit plan under ERISA. Pacific Bell argues that in spite of the fact that Fucci asserts a claim under California law, and nowhere refers to federal law in her complaint, her claim nonetheless is inextricably intertwined with the administration of a qualified employee benefits plan and the interpretation of a collective bargaining agreement, and therefore presents an "artfully pled" federal question removable under 28 U.S.C. § 1441 (b).
Under 28 U.S.C. § 1441 (b), "[a]ny 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" may be removed. The language of § 1441(b) mirrors that found in the grant to the federal district courts of original jurisdiction over federal questions. See 28 U.S.C. § 1331. While both of these grants of jurisdiction are based on Article III of the United States Constitution, the statutory language is limited by the well-pleaded complaint rule.
Under the well-pleaded complaint rule, a cause of action "arises under" federal law, and removal is proper, only if a federal question is presented on the face of the plaintiffs properly pleaded complaint.Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-12 (1983). A federal defense to a plaintiffs state law cause of action does not appear on the face of the well-pleaded complaint, and is therefore insufficient to warrant removal to federal court. Gully v. First Nat'l Bank, 299 U.S. 109, 115-18 (1936). Thus, the defense of preemption is insufficient justification for removal to federal court. Caterpillar Inc. v. Williams, 482 U.S. 386, 398 (1987) (although a defendant "might ultimately prove that a plaintiffs claims are preempted" under a federal statute, that fact does not establish that such claims are removable).
The Supreme Court has recognized an "independent corollary" to the well-pleaded complaint rule, see Franchise Tax Bd., 463 U.S. at 22 — referred to as the "complete preemption" exception — which originated with the Court's decision in Avco Corp. v. Machinists, 390 U.S. 557 (1968). In that case, the Court held that a suit to enforce a collective bargaining agreement necessarily arose under § 301 of the LMRA, and was removable even though the plaintiff had pleaded only under state law and had sought a remedy available only under state law.Id. at 560-62. In Franchise Tax Bd., the Court elaborated:
The necessary ground of decision [in Avco] was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action "for violation of contracts between an employer and a labor organization." Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily "arises under" federal law.Franchise Tax Bd., 463 U.S. at 23-24 (footnote omitted).
The intent of Congress in enacting the LMRA was to fashion a uniform body of law regarding collective bargaining agreements and other labor contracts. See Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962) (holding that "the subject matter of § 301(a) is particularly one that calls for uniform law"). Thus, federal law exclusively governs a suit for breach of a collective bargaining agreement under § 301 and preempts any cause of action based on a collective bargaining agreement or whose outcome depends on analysis of the terms of the agreement. Cook v. Lindsay Olive Growers, 911 F.2d 233, 237 (9th Cir. 1990).
Although the language of § 301 is limited to "[s]uits for violation of contracts," it has been construed quite broadly to cover most state-law actions that require interpretation of labor contracts. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985). Many § 301 suits do not assert breach of the collective bargaining agreement and are nevertheless held preempted because they implicate portions of the agreement. Associated Builders Contractors, Inc. v. Local 302 Int'l Brotherhood of Elec. Workers, 109 F.3d 1353, 1356-57 (9th Cir. 1997).
Nevertheless, "not every claim which requires a court to refer to the language of a labor-management agreement is necessarily preempted." Id. at 1357. To effectuate the goals of § 301, it should be applied only to "state laws purporting to determine `questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement,'" and to tort suits that allege "breaches of duties assumed in collective bargaining agreements." Livadas v. Bradshaw, 512 U.S. 107, 123 (1994), quoted in Associated Builders, 109 F.3d at 1357.
In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988), the Supreme Court considered a claim by an employee alleging that she was terminated for exercising rights under the Illinois Workers' Compensation Act. Originally filed in state court, the case was removed to federal court, where the district judge found that the claim was preempted by § 301 of the LMRA. The Supreme Court disagreed, ruling that application of the employee's state tort remedy was not preempted by § 301 because such application did not require interpretation of the collective bargaining agreement. Id. at 407-08.
The Court explained that to show retaliatory discharge, the plaintiff would be required to establish that she was discharged or threatened with discharge and that the employer's motive in discharging or threatening to discharge her was to deter her from exercising her rights under the Act or to interfere with his exercise of those rights. "Each of these purely factual questions pertains to the conduct of the employee and the conduct and motivation of the employer. Neither of the elements requires a court to interpret any term of a collective bargaining agreement." Id. at 407. Similarly, to defend against a retaliatory discharge claim, the employer would be required to show that it had a nonretaliatory reason for the discharge. Again, "this purely factual inquiry likewise does not turn on the meaning of any provision of a collective-bargaining agreement." Id. The Court concluded that the state-law remedy was "independent" of the collective-bargaining agreement "in the sense of `independent' that matters for § 301 preemption purposes" and resolution of the state-law claim did not require construing the collective-bargaining agreement. Id.
Here, the basis of Fucci's claim of retaliatory discrimination to the collective bargaining agreement is similar to that in Lingle, and the court finds accordingly that the claim is not completely preempted by the LMRA. Resolution of Fucci's claim will turn on the fact-specific inquiry into Pacific Bell's motivation for placing plaintiff in the CIL. It will not require interpreting or construing the terms of the collective bargaining agreement. Although Fucci alleges no claim relating to any specific provision of the collective bargaining agreement, Pacific Bell cites to section 6.05, which refers to leaves of absence. Pacific Bell contends that this provision authorizes the company to provide unpaid time off at its discretion, and provides that granting a leave of absence for a period of more than 30 days does not guarantee that the employee will be given a position when the leave expires. Thus, Pacific Bell argues, the CIL falls squarely within a legitimate act of management discretion contemplated and authorized under the collective bargaining agreement, and Fucci's claims are therefore preempted.
Pacific Bell's argument is not persuasive, because Fucci's right to be free from retaliation would have existed even in the absence of the collective bargaining agreement. The primary issue raised by Fucci's claim is the question of Pacific Bell's motivation — that is, whether Pacific Bell placed her on CIL in retaliation for having filed a workers' compensation claim. "[W]hen the meaning of contract terms is not the subject of dispute, the bare fact that a collective bargaining agreement will be consulted in the course of state-law litigation does not require the claim to be extinguished." Livadas, 512 U.S. at 123. Resolution of this claim will not require interpretation of the terms of the collective bargaining agreement, and it is therefore not preempted by the LMRA.
The Supreme Court has also determined that Congress intended the complete-preemption doctrine to apply to state law causes of action which fit within the scope of ERISA's civil-enforcement provisions. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). The Court noted that while federal preemption was not ordinarily a sufficient basis for removal jurisdiction, "Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Id. at 63-64. Looking at the legislative history, the Court found that ERISA's civil enforcement provision was intended to function in a fashion similar to § 301 of the LMRA. Id. at 66.
However, not all claims preempted by ERISA are subject to removal. ERISA supersedes "any and all state laws insofar as they may now or hereafter relate to any employee benefit plan. . . ." The Metropolitan Life complete-preemption doctrine is concerned with a more limited set of state laws, those that fall within the scope of ERISA's civil enforcement provisions, ERISA § 502(a). State law claims falling outside the scope of § 502(a), even if preempted, are still governed by the well-pleaded complaint rule and are therefore not removable. When the doctrine of complete preemption does not apply, but the plaintiffs state law claim is arguably preempted under § 514(a), the district court's without removal jurisdiction and can only remand to the state court, where the preemption issue can be addressed and resolved. See Franchise Tax Bd., 463 U.S. at 4.
To determine whether state law claims fall within the scope of § 502(a), the court must determine whether those claims, properly construed, are "to recover benefits due . . . under the terms of [the] plan, to enforce . . . rights under the terms of the plan, or to clarify . . . rights to future benefits under the terms of the plan." Thus, the question here is whether Fucci is claiming that the plan erroneously withheld benefits due or is asking the court to enforce her rights under the terms of the plan or to clarify her rights to future benefits.
In determining whether ERISA preempts state common law causes of action for wrongful discharge, the Supreme Court and the Ninth Circuit have focused on an employer's alleged motivation in terminating the employee, concluding that a claim is preempted when the complaint alleges that "`the employer had a pension-defeating motive in terminating the employment.'" Campbell v. Aerospace Corp., 123 F.3d 1308, 1311 (9th Cir. 1997) (quoting Ingersoll-Rand v. McClendon, 498 U.S. 133, 140 (1990)),cert. denied, 523 U.S. 1117 (1998). A claim does not relate to ERISA, however, "when the loss of . . . benefits was a mere consequence of, but not a motivating factor behind, the termination of benefits." Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir. 1988); see also Karambelas v. Hughes Aircraft Co., 992 F.2d 971, 974 (9th Cir. 1993).
In Rozzell v. Sec. Servs. Inc., 38 F.3d 819 (5th Cir. 1994), which the Ninth Circuit cited with approval in Campbell, the plaintiff alleged that his employer had wrongfully terminated him in retaliation for pursuing statutory rights guaranteed under the Texas Workers' Compensation Act. In his prayer for punitive damages, he alleged that he was wrongfully terminated to "wilfully deprive plaintiff of the compensation and benefits of [his] job." Based on this allegation, defendants removed the suit as preempted by ERISA. Rozzell, 38 F.3d at 821. The Fifth Circuit found that the substance of the plaintiffs claim was limited to the state law retaliatory discharge cause of action, and was not preempted by ERISA.
Plaintiff in Rozzell filed suit under section 8307c of the Workers' Compensation Act, which provided, in part, that "[n]o person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen's Compensation Act, or has testified or is about to testify in any such proceeding." This statute was repealed and recodified under Texas Labor Code section 451.001, effective September 1, 1993. See Sherrod, 132 F.3d at 1118 n. 2.
The statute at issue in this case, California Labor Code § 132a, resembles the Texas law at issue in Rozzell, except that the California statute provides for both criminal and civil liability, and also specifies that the aggrieved worker shall be entitled to increased compensation, plus reinstatement and reimbursement for lost wages and work benefits caused by the discriminatory acts of the employer. See Cal. Lab. Code § 132a. However, the substance of the cause of action is the same under both statutes.
Pacific Bell argues that Fucci's claim is preempted because she expressly seeks "immediate reinstatement of her medical benefits" under a qualified ERISA benefit plan. Pacific Bell contends that the CIL was a discretionary leave of absence designed under the terms of the Pension Plan to prevent termination and/or a disqualifying break in service from occurring when an employee does not return to work during a medical dispute regarding payment of benefits under the Disability Plan. Pacific Bell notes that under section 3.8 of the Pension Plan, the Plan may allocate responsibilities for the "operation and administration of the Plan." Pacific Bell claims that pursuant to this provision, the Plan has delegated authority to its participating companies to create, grant, and administer the CIL under certain circumstances, and that Pacific Bell in turn developed the policy denominated "Company Initiated Leave of Absence Administrative Procedures" ("the CIL policy") a copy of which is attached to the Declaration of Lynn Lewis in opposition to plaintiffs motion. Pacific Bell argues that Fucci's claim raises issues which can be resolved only by reference to the CIL policy, which was developed pursuant to Pacific Bell's authority under the benefit plans. Thus, Pacific Bell argues, plaintiffs § 132a claim is preempted by ERISA.
Pacific Bell relies in particular on two cases, one from California Court of Appeal, and the other from the U.S. District Court for the Central District of California, to support its argument that plaintiffs claim is completely preempted by ERISA. The court finds, however, that neither of these cases compels the result urged by Pacific Bell. InPacific Bell v. Workers' Comp. Appeals Bd., 186 Cal.App.3d 1603 (1987), the plaintiff, after receiving temporary disability indemnity, filed a petition with the WCAB under Labor Code section 132a, seeking additional pension service credits and increased compensation. She contended that Pacific Bell discriminated against her based on her industrial injury and receipt of a workers' compensation award by refusing to grant service credits during her disability pension period. WCAB ordered reinstatement of pension service credits and increased compensation. The Court of Appeal found that the determination of such service credits and increased compensation under section 132a was preempted by ERISA because the employer's service pension plan adopted the essential language of a federal regulation promulgated under ERISA. Id. at 1615. The court found that ERISA and the regulation in question, 29 C.F.R. § 2530.200b-2 (a), allow an employer to deny service credits for the time during which an absent employee receives or is entitled to receive disability indemnity pursuant to a self-insured employer's workers' compensation plan. Id.
The present case is distinguishable because the language of the CIL policy (even assuming the policy can be considered part of either Plan) does not mirror the language of ERISA or any ERISA regulation. Moreover, the basis of Fucci's complaint is that Pacific Bell imposed the CIL in a discriminatory fashion or for a discriminatory reason. She is not challenging the calculation of benefits to which she may be entitled.
In Scotti v. Los Robles Regional Ctr, 117 F. Supp.2d 982 (C.D. Cal. 2000), the plaintiff filed a petition with the WCAB, alleging that termination of her group medical benefits after a six-month leave of absence constituted discrimination under Labor Code section 132a. Following removal to federal court, the district judge dismissed the case on the basis that plaintiffs claim was preempted by ERISA.
The health benefit plan at issue in that case provided that employer-funded coverage could be terminated when employees were on leave of absence for more than six months. The policy applied whether or not the leave was work-related. The court found that plaintiffs claim "reaches the [health benefits] Plan's terms and conditions by punishing conduct set forth in the Plan for the purpose of its administration."Id. at 988. The court concluded that because plaintiff was claiming a right to medical benefits, any determination of whether defendants had discriminated against plaintiff under § 132a would have to take into account the Plan's terms for allowing discontinuation of benefits upon leave of absence, and a violation of § 132a could not be shown without reference to the Plan. Id.
Scotti is distinguishable, on the basis that the Plan at issue plainly provided that benefits would be terminated whenever an employee was absent for six months, and the plaintiffs § 132a claim directly challenged that Plan provision; while in this case, the CIL policy, the application of which is admittedly discretionary, provides that medical benefits will not be paid when an employee is on a CIL. As the court reads the complaint, it is Pacific Bell's decision to place Fucci on a CIL which forms the basis of Fucci's § 132a claim. That decision, in turn, triggered Pacific Bell's imposition of a condition of no guarantee of future employment and the discontinuance of payment of medical benefit premiums. Pacific Bell may have an ERISA defense against the § 132a claim, but, absent complete preemption, there is no federal claim and the court lacks subject matter jurisdiction.
3. Plaintiffs request for attorney's fees and costs
Fucci also seeks fees and costs under 28 U.S.C. § 1447 (c). Section 1447(c) provides that fees and costs may be awarded as reimbursement for unnecessary removal: "An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." While § 1447(c) does not require a showing of bad faith, the district court should give some consideration to the merits of the removal action in deciding whether to award fees. See Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 446 (9th Cir. 1992). Nevertheless, "a finding of an improper purpose is not necessary to support an award," and the court is afforded a "`great deal of discretion."' Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238, 240 (6th Cir. 1993).
The court finds that an award of fees is not proper in this case. Pacific Bell immediately sought removal from the WCAB before any substantive proceedings on the plaintiffs' claims. Moreover, the subject of complete preemption is complex, and reasonable minds can differ on its proper application. Although the court does not agree with Pacific Bell's position in this matter, its arguments are not without merit. Consequently, the motion for an award of fees and costs is DENIED.
CONCLUSION
In accordance with the foregoing, the court finds that the case should be remanded to the Workers Compensation Appeals Board of California. This order fully adjudicates the motion listed at No. 10 on the clerk's docket for this case.
The date for the case management conference, previously set for Thursday, February 8, 2001, is hereby VACATED.
IT IS SO ORDERED.