Volume 72, Number 3

June 1997

Understanding Preemption Removal under ERISA § 502

Robert A. Cohen

The growth of federal regulation has allowed an increasing number of defendants to argue that state law has been preempted by federal law, and the well-pleaded complaint rule has forced many of these defendants to argue their federal defenses in state court. Federal jurisdiction under the Employee Retirement Income Security Act of 1974 (ERISA) can be considered an exception to this basic rule. Defendants in state court who raise a specific ERISA preemption defense are able to remove their cases to federal court. Because a federal court will decide whether federal law preempts state law, the process is known as “preemption removal.” The Supreme Court authorized preemption removal under ERISA in 1987, claiming that it was following congressional intent. There are, however, significant reasons to believe that Congress did not intend to allow such preemption removal when it enacted ERISA in 1974.

This Note argues that although congressional authorization is questionable, preemption removal under ERISA is justified by the particular issues surrounding the regulation of employee benefit plans. In the absence of congressional intent, these policies stand as the sole justification for this striking exception to the well-pleaded complaint rule. Because these policies and issues do not necessarily apply to other areas of federal legislation, this Note argues that when courts are confronted with the question of whether preemption removal should be extended to other federal statutes, they must look for either clear congressional intent or strong policy reasons, such as those implicated by ERISA, to allow such removal.