MEMORANDUM ORDER

A. JOE FISH, Chief Judge, District

Before the court is the motion of the plaintiff Richard R. Carlyle ("Carlyle") to remand the instant action to a state district court, from which it was previously removed. For the reasons stated below, this motion is denied.

I. BACKGROUND

Carlyle, who had over thirty-eight years of service with defendant CSX Transportation, Inc. ("CSX"), retired from service with CSX effective May 2, 1998. Plaintiff's Original Petition ("Petition") at 2-3, attached as Exhibit Al to Notice of Removal. Carlyle alleges that prior to retiring, he entered into an oral agreement with CSX that if CSX offered any other sales or marketing employees a severance package within one year of his retirement, then Carlyle would be entitled to the same benefits. Id. at 2. Carlyle alleges that he would have delayed his retirement for another two to five years if he had not reached this agreement with CSX. Id. at 3. In 1999, after Carlyle resigned, CSX established its 1999 Severance Plan for Certain Subsidiaries of CSX Corporation (the "1999 Severance Plan"), an ERISA plan to assist employees affected by CSX's restructuring of operations. Defendant's Response to Plaintiff's Motion to Remand ("Response") at 3. Carlyle alleges that this plan was implemented within one year of his retirement and that — by virtue of his oral agreement with CSX — he was entitled to receive a severance package under the plan. Petition at 3-4. Carlyle seeks damages for breach of contract, promissory estoppel, and fraud, as well as attorney's fees, costs, and punitive damages. Id. at 3-6.

II. ANALYSIS A. Removal Jurisdiction

Title 28 U.S.C. § 1441 (b) permits removal of "[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." Removal jurisdiction must be strictly construed, however, because it implicates important federalism concerns. Frank v. Bear Steams Co., 128 F.3d 919, 922 (5th Cir. 1997); see also Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). Furthermore, "any doubts concerning removal must be resolved against removal and in favor of remanding the case back to state court." Cross v. Bankers Multiple Line Insurance Company, 810 F. Supp. 748, 750 (N.D. Tex. 1992). The burden of establishing federal jurisdiction is on the party seeking removal — in this case, CSX. See Frank, 128 F.3d at 921-22; Willy, 855 F.2d at 1164.

District courts have original jurisdiction over civil cases arising under the laws of the United States. See 28 U.S.C. § 1331. Here, however, Carlyle has filed a claim alleging only a violation of Texas law. And because it is well settled "that a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law," it would appear — at first glance — that no federal law is implicated in this case, and thus, no federal question jurisdiction exists.

"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 claims is necessarily federal in character." Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58, 63-64 (1987). Cases implicating these preempted areas may be removed to federal court "even if the complaint is artfully pleaded to include solely state law claims for relief. . . ." Heimann v. National Elevator Industry Pension Fund, 187 F.3d 483, 500 (5th Cir. 1999).

A court must be careful, however, to distinguish between two types of federal preemption. Ordinary federal preemption is a federal defense to a plaintiff's suit derived from an express statutory term or from a direct conflict between federal and state laws. Because it is simply a defense, ordinary preemption "does not appear on the face of a well-pleaded complaint, and, thus, does not authorize removal to a federal court." Id. "Complete preemption," on the other hand, converts a state law cause of action into a federal claim, resulting in the establishment of federal question jurisdiction. See Metropolitan, 481 U.S. at 64-67. In the instant case, CSX contends that the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., completely preempts Carlyle's state law claims and grants this court federal question jurisdiction. Notice of Removal at 1.

B. ERISA Preemption

Certain state law claims that relate to an ERISA employee benefit plan and that are within the scope of ERISA's civil enforcement provision are subject to complete preemption. See 29 U.S.C. § 1144(a) ("[T]he provisions of this subchapter . . . shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . .".); Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 52 (1987) (holding that ERISA § 502(a) provides the exclusive procedure and remedy in an action to recover benefits owed or to enforce rights under the terms of an employee benefit plan); Metropolitan, 481 U.S. at 66 ("[T]he rest of the legislative history consistently sets out this clear intention to make § 502(a)(1)(B) suits brought by participants or beneficiaries federal questions for the purposes of federal court jurisdiction . . .".).

Carlyle disputes CSX's contention that his suit is an action to recover benefits owed or to enforce rights under the terms of an employee benefit plan. He argues in essence that he was not a participant in or beneficiary of the 1999 Severance Plan, and that his suit is merely a contract action against his employer. See Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Remand ("Reply") at 1. However, it is clear from a review of the filings in this case that Carlyle's argument has evolved since he first filed his petition in state court. In his original Petition, Carlyle forcefully argues that he is entitled to receive a severance package under the 1999 Severance Plan. Petition at 3, 4 ("Carlyle subsequently learned that beginning on [sic] March of 1999, CSX began offering its employees severance packages consisting of one year's salary. Upon inquiring as to the status of his promised severance, Carlyle was given varying responses as to why he would not receive the package. . . ."; "CSX, however, breached the agreement by refusing to give Carlyle the same severance package it had given to several other employees within in [sic] one year of Carlyle's retirement.") (emphasis added). In his motion to remand, Carlyle softpedals his approach, arguing that he "is not bringing any claims as a participant or beneficiary of one of the Defendant's retirement plans." Motion at 4. Rather, he "complains of unfulfilled promises for a severance payment of one year's salary made to induce Plaintiff to resign prior to his scheduled retirement." Id. at 3. Finally, in his Reply to CSX's Response to his Motion, Carlyle states, "Plaintiff does not seek severance pay due him under the 1999 Severance Plan or severance plan benefits claimed to be forfeited for retiring early." Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Remand ("Reply") at 1. Thus, Carlyle seeks to avoid the application of ERISA to his claims by recharacterizing his Petition as seeking only to enforce a promise by CSX to pay Carlyle an amount equal to one year's salary upon the occurrence of a condition subsequent, namely the establishment of a severance plan within one year.

No matter how Carlyle characterizes his allegations, however, it is clear that under the law of this circuit, his claims fall within the purview of ERISA. See, e.g., Degan v. Ford Motor Company, 869 F.2d 889 (5th Cir. 1989); Cefalu v. B.F. Goodrich Company, 871 F.2d 1290 (5th Cir. 1989); Lee v. E.I. DuPont de Nemours and Company, 894 F.2d 755 (5th Cir. 1990). Lee v. DuPont most closely parallels the facts of this case. In Lee, six employees who worked at DuPont's Sabine River Works chemical plant in Orange, Texas, retired on December 31, 1984. Lee, 894 F.2d at 755. These employees heard rumors that DuPont was considering the establishment of an early retirement incentive plan, questioned management about the rumors, and obtained their assurances that no such plan was in the offing. Id. at 756. One month after the plaintiffs retired in reliance upon these assurances, DuPont established an early retirement incentive program. Id. Plaintiffs filed an action in state court alleging state law claims of fraud and negligent misrepresentation, seeking the additional retirement benefits they would have received under the plan. Id. DuPont removed the action to federal court and then obtained dismissal of the action on the basis of ERISA preemption. Id. Citing Cefalu and Degan, the court in Lee held that ERISA preempted the plaintiffs' state law claims. Id. at 757. The plaintiffs argued that because the plan was adopted after their retirement, they were not participants covered by ERISA, and Cefalu and Degan did not control. Id. Rejecting this argument, the court noted, "[t]he fact that the [plan] was not adopted until after the plaintiffs' retirement is irrelevant to this suit's character as an action that relates to their former employer's pension plan and interferes with the exclusively federal regulatory scheme." Id. at 758.

In this case, as in Lee, the fact that the 1999 Severance Plan was not adopted until after Carlyle's retirement is irrelevant to this suit's character as an action that relates to CSX's severance plan and interferes with the exclusively federal regulatory scheme. Here, as in Lee, this court finds compelling the argument that to adopt a contrary rule would impose an untenable duty upon companies to disclose benefit plan amendments or changes before they are put into effect. See id. at 758. Such a duty might hamper the ability of employers to improve their benefit programs, contrary to the purposes of ERISA. See id. Having determined that Carlyle's suit is, in fact, an action to recover benefits owed or to enforce rights under the terms of an employee benefit plan, the court must still determine whether Carlyle's claims are subject to complete ERISA preemption. The court must address the three following issues: (1) whether the 1999 Severance Plan constitutes an "employee benefit plan" as defined by ERISA; (2) whether Carlyle's claim "relates to" that plan; and (3) whether his claim falls within ERISA's enforcement provision.

1. Is the 1999 Severance Plan an "Employee Welfare Benefit Plan"?

The Fifth Circuit has devised a test for determining whether a particular plan qualifies as an "employee welfare benefit plan." The test requires this court to decide whether a plan: (1) exists; (2) falls outside the safe-harbor provision established by the Department of Labor; and (3) satisfies the primary elements of an ERISA "employee benefit plan." See Meredith v. Time Insurance Company, 980 F.2d 352, 355 (5th Cir. 1993); McNeil v. Time Insurance Company, 977 F. Supp. 424, 428-29 (N.D. Tex. 1997), aff'd, 205 F.3d 179 (5th Cir. 2000), cert. denied, ___ S.Ct. ___, 2000 WL 178218 (Feb. 26, 2001) (No. 00-848). If the 1999 Severance Plan satisfies these criteria, it is an employee benefit plan under ERISA. See McNeil, 977 F. Supp. at 428-31.

a. Does a Plan Exist?

The initial inquiry as to whether a plan exists is governed by the test first articulated by the Eleventh Circuit in Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982) (en banc), and adopted by this circuit in Memorial Hospital System v. Northbrook Life Insurance Company, 904 F.2d 236, 240-41 (5th Cir. 1990):

In determining whether a plan, fund or program (pursuant to a writing or not) is a reality a court must determine whether from the surrounding circumstances a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits.

Here, CSX has a formal plan, a copy of which is attached to its Response. 1999 Severance Plan for Certain Subsidiaries of CSX Corporation (the "Plan Document"), attached as Exhibit A, Appendix to Defendant's Response to Plaintiff's Motion to Remand. The Plan Document includes sections entitled "About the Severance Pay Plan" and "Who is Eligible," which describe the intended benefits and beneficiaries of the 1999 Severance Plan. Id. at 1. A section entitled "Funding Medium" clearly states that the 1999 Severance Plan was to be funded from the general assets of CSX. Id. at 11. Additionally, the section entitled "Applying for Severance Benefits" clearly delineates the procedures that a terminated employee must follow to obtain benefits. Id. at 7. In sum, a reasonable person can ascertain from "the surrounding circumstances" that the elements of the Donovan/Memorial Hospital test for determining the existence of a plan are met.

b. Is the Plan Excluded from ERISA?

The second step of the analysis is the determination of whether a plan is exempt from ERISA. Certain plans are exempt from ERISA because they fall within the safe-harbor provision promulgated by the Department of Labor. 29 C.F.R. § 2510.3-1(j)(1)-(4); see also Gahn v. Allstate Life Insurance Company, 926 F.2d 1449, 1452 (5th Cir. 1991); Memorial Hospital, 904 F.2d at 241 n. 6. Under the safe-harbor provision, a plan is not covered by ERISA if (1) an employer did not contribute to the plan; (2) participation was voluntary; (3) the employer's involvement with the plan was limited to collecting premiums and remitting them to an insurer; and (4) the employer received no profit from administering the plan. See Gahn, 926 F.2d at 1452; Memorial Hospital, 904 F.2d at 241 n. 6. "The plan must meet all four criteria to be exempt." Meredith, 980 F.2d at 355. Here, CSX did contribute to the plan since it was from the company's general assets that severance was to be paid, and participation in the 1999 Severance Plan was involuntary — all employees who met the criteria set forth by the plan automatically qualified. Therefore, the plan falls outside the safe-harbor provision and is not exempt from ERISA coverage.

c. Is the Plan an ERISA Plan?

i. Established or Maintained

To determine whether an employer established or maintained an employee welfare benefit plan, the court must focus on the employer and its involvement with the plan. Gahn, 926 F.2d at 1452. Indeed, the hallmark of an ERISA benefit plan is that it requires "an ongoing administrative program to meet the employer's obligation." Fort Halifax Packing Company, Inc. v. Coyne, 482 U.S. 1, 11 (1987). Three aspects of the 1999 Severance Plan show an administrative program within the purview of ERISA. First, for every terminated employee, CSX was required to evaluate that employee's eligibility for severance benefits and, if eligible, the amount of those benefits. See Plan Document, Appendix at 8; see also Pane v. RCA Corporation, 667 F. Supp. 168, 170-71 (D.N.J. 1987) (finding that severance agreement required an administrative scheme because the circumstances of each employee's termination had to be analyzed in light of certain criteria), aff'd, 868 F.2d 631 (3rd Cir. 1989). Second, since CSX — like any large business — regularly has terminated employees, it is forced to "assume . . . responsibility to pay benefits on a regular basis, and thus faces . . . periodic demands on its assets that create a need for financial coordination and control." Fort Halifax, 482 U.S. at 12. Finally, the plan's appellate process, which includes an Administrative Committee charged with reviewing appeals from those denied severance, evinces yet another administrative aspect of the plan. See Plan Document, Appendix at 13. These three factors demonstrate an administrative scheme that constitutes the maintenance of an employee benefit plan.

ii. Intended Benefits

The second element of an ERISA plan is an intent to benefit employees. Here, the 1999 Severance Plan was clearly intended to benefit employees by offering them benefits at the time of termination.

d. Recapitulation

In sum, since the plan at issue in this case (1) exists; (2) falls outside the safe-harbor provision established by the Department of Labor; and (3) exhibits the two primary elements of an ERISA "employee welfare benefit plan," it is an employee benefit plan within the meaning of ERISA.

2. Does Carlyle's Claim "Relate To" the Severance Pay Plan?

As discussed above, state law claims that "relate to" ERISA employee benefit plans are preempted. Thus, having found that CSX's 1999 Severance Plan is in fact an employee benefit plan, the court must now determine whether Carlyle's claims relate to that plan. They clearly do. A claim "`relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Memorial Hospital, 904 F.2d at 244 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983)). Here, all of Carlyle's claims arise from his alleged denial of the same benefits as given to employees retiring under the 1999 Severance Plan. In fact, his claims are all predicated upon the establishment of the 1999 Severance Plan. In Lee, the Fifth Circuit held that the plaintiffs' claims, which were virtually indistinguishable from Carlyle's claims in this case, related to their former employer's pension plan. Lee, 894 F.2d at 758. The court finds that Carlyle's claim relates to CSX's 1999 Severance Plan.

3. Do Carlyle's Claims Fall Under the Enforcement Provision?

While several claims may be preempted by ERISA, only those claims that fall within § 502(a) — ERISA's enforcement provision — will be completely preempted by the act and, thus, removable. See Copling v. Container Store, Inc., 174 F.3d 590, 594-95 (5th Cir. 1999); McClelland v. Gronwaldt, 155 F.3d 507, 517 (5th Cir. 1998). Therefore, the final issue to be resolved in the preemption analysis is whether Carlyle's cause of action falls under § 502(a). That section provides in relevant part:

§ 1132. Civil enforcement

(a) Persons empowered to bring a civil action

A civil action may be brought —

(1) by a participant or beneficiary —

* * *

(B) to recover benefits due to him under the terms of the plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan . . . .

Although Carlyle argues that he is not a participant or beneficiary within the meaning of § 502(a)(1), the Fifth Circuit explicitly rejected that argument in Lee. Lee, 894 F.2d at 758. Because Lee controls, Carlyle's causes of action fall within ERISA's enforcement provision and are thus completely preempted by that Act.

C. CONCLUSION

ERISA's complete preemption of Carlyle's claims grants this court federal question jurisdiction. Accordingly, CSX's removal of the instant case to this court was proper and Carlyle's motion to remand is DENIED.

SO ORDERED.