[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                   REMOVAL CLARIFICATION ACT OF 2010

=======================================================================

                                HEARING

                               BEFORE THE

                       SUBCOMMITTEE ON COURTS AND
                           COMPETITION POLICY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 5281

                               __________

                              MAY 25, 2010

                               __________

                           Serial No. 111-128

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



                  U.S. GOVERNMENT PRINTING OFFICE
56-640                    WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202ï¿½09512ï¿½091800, or 866ï¿½09512ï¿½091800 (toll-free). E-mail, [email protected].  

                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

             Subcommittee on Courts and Competition Policy

           HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chairman

JOHN CONYERS, Jr., Michigan          HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia               JASON CHAFFETZ, Utah
CHARLES A. GONZALEZ, Texas           F. JAMES SENSENBRENNER, Jr., 
SHEILA JACKSON LEE, Texas            Wisconsin
MELVIN L. WATT, North Carolina       BOB GOODLATTE, Virginia
MIKE QUIGLEY, Illinois               DARRELL ISSA, California
DANIEL MAFFEI, New York              GREGG HARPER, Mississippi
JARED POLIS, Colorado

                    Christal Sheppard, Chief Counsel

                    Blaine Merritt, Minority Counsel


                            C O N T E N T S

                              ----------                              

                              MAY 25, 2010

                                                                   Page

                                THE BILL

H.R. 5281, the ``Removal Clarification Act of 2010''.............     3

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in 
  Congress from the State of Georgia, and Chairman, Subcommittee 
  on Courts and Competition Policy...............................     1
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Ranking Member, Subcommittee on 
  Courts and Competition Policy..................................     5

                               WITNESSES

Ms. Beth Brinkmann, Deputy Assistant Attorney General, Civil 
  Division, U.S. Department of Justice, Washington, DC
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Mr. Irvin B. Nathan, General Counsel, Office of the General 
  Counsel, U.S. House of Representatives, Washington, DC
  Oral Testimony.................................................    11
  Prepared Statement.............................................    14
Mr. Lonny Hoffman, George Butler Research Professor of Law, 
  University of Houston Law Center, Houston, TX
  Oral Testimony.................................................    30
  Prepared Statement.............................................    32
Arthur D. Hellman, Professor of Law, University of Pittsburgh 
  School of Law, Pittsburgh, PA
  Oral Testimony.................................................    54
  Prepared Statement.............................................    57

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Howard Coble, a 
  Representative in Congress from the State of North Carolina, 
  and Ranking Member, Subcommittee on Courts and Competition 
  Policy.........................................................    85


                   REMOVAL CLARIFICATION ACT OF 2010

                              ----------                              


                         TUESDAY, MAY 25, 2010

              House of Representatives,    
                 Subcommittee on Courts and
                                 Competition Policy
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:04 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Henry 
C. ``Hank'' Johnson, Jr. (Chairman of the Subcommittee) 
presiding.
    Present: Representatives Johnson, Boucher, Watt, Polis, 
Coble, Chaffetz, Goodlatte, Issa, and Harper.
    Staff Present: (Majority) Eric Garduno, Counsel; Elisabeth 
Stein, Counsel; Rosalind Jackson, Professional Staff Member; 
(Minority) Blaine Merritt, Counsel; and Tim Cook, Staff 
Assistant.
    Mr. Johnson. This hearing of this Committee on the 
Judiciary, Subcommittee on Courts and Competition policy will 
now come to order. Without objection, the Chair will be 
authorized to declare a recess of the hearing.
    Before we begin, I will welcome Representative Polis when 
he gets here, if he arrives.
    I will now recognize myself for a short statement. I am 
pleased to hold a hearing today on my bill, H.R. 5281, the 
``Removal Clarification Act of 2010.''
    This bill will ensure that Federal officers, including 
officials from all three branches of government are able to 
properly remove to Federal court when sued, based on actions 
undertaken in their official capacity.
    This is a bipartisan bill and I was pleased that Chairman 
Conyers, the Ranking Member of the full Judiciary Committee, 
Representative Smith, and the Ranking Member of this 
Subcommittee, Representative Coble, all joined as original 
cosponsors.
    The purpose of the Federal officer removal statute is to 
ensure that Federal officials can remove to a Federal forum so 
that the Federal Government will be free from interference with 
its operations. However, over 40 States have passed pre-suit 
discovery proceedings where individuals may be deposed and/or 
required to produce documents, despite the fact that a civil 
action has not yet commenced. These pre-suit discovery 
procedures have muddied the waters of the Federal removal 
statute as our Federal courts have split on whether the removal 
statute applies to such pre-suit discovery. Some courts apply 
the removal statute to pre-suit actions. Other courts don't 
and, instead, have held that pre-suit actions are not covered 
by the removal statute because there is not yet a civil action 
under 1442.
    Furthermore, some of these courts require a Federal 
official or agency to be held in contempt before the matter can 
be removed.
    H.R. 5281 will make clear that section 1442 should apply 
anytime a legal demand is made on a Federal officer for any act 
done under their official capacity. It will also provide that 
there can be an appeal to the Federal circuit court if the 
Federal district court rejects a removal petition under 1442 
and remands the matter back to the State court.
    In short, H.R. 5281 will enable Federal officials to remove 
cases to Federal court in accordance with the spirit and the 
intent of the Federal officer removal statute.
    I want to stress today that we are not changing the 
underlying removal law. Removal still must be predicated on the 
availability of a Federal defense. Further, only the part of 
the proceeding involving the Federal official will be removed. 
To the extent that there is any ambiguity in this legislation 
on those points or any other, I look forward to hearing the 
testimony of today's witnesses as to how to resolve such 
matters.
    And at this point, I would like to take the opportunity to 
welcome Representative Jared Polis to the Subcommittee on 
Courts and Competition Policy. Representative Polis is not only 
a Member of Congress, but he is also a successful innovator and 
entrepreneur. He has founded several successful Internet 
companies, including proflowers.com and bluemountain.com.
    In 2008 Representative Polis was elected to the 111th 
Congress, representing Colorado's Second Congressional 
District. He currently also serves on the House Education and 
Labor Committee and the Rules Committee. He is a charter member 
and vice chair of the Sustainable Energy and Environmental 
Coalition, the chair of the Immigration Task Force of the 
Progressive Caucus, and a member of the Democratic Steering and 
Policy Committee. I welcome Representative Polis to this 
Subcommittee.
    [The bill, H.R. 5281, follows:]

    
    
    
    
                               __________
    Mr. Johnson. I now recognize my colleague, Mr. Coble, the 
distinguished Ranking Member of this Subcommittee, for his 
opening remarks.
    Mr. Coble. Thank you, Mr. Chairman. I join you in welcoming 
Representative Polis as a Member of the Judiciary Committee. I 
appreciate, Mr. Chairman, your calling this legislative 
hearing. And I appreciate furthermore the outstanding panel who 
will testify before us.
    The bill, H.R. 5281, addresses an obscure but important 
issue that touches on federalism and the balance relationship 
between the Federal Government and the individual States. The 
Removal Clarification Act of 2010 primarily amends section 1442 
of title 28 of the U.S. Code. This is a statute that allows 
Federal officers under limited conditions to remove cases filed 
against them in State court to U.S. district courts for 
disposition.
    The purpose of section 1442 is to deny State courts the 
power to hold a Federal officer criminally or civilly liable 
for an act allegedly performed in the execution of his or her 
Federal duties. This does not mean that Federal officers can 
break or violate the law; it just simply means that these cases 
are transferred to a U.S. district court for consideration.
    Congress wrote the statute because it deems the right to 
remove under these conditions essential to the integrity and 
preeminence of the Federal Government under our Constitution. 
Federal officers or agents, including Congressmen, shouldn't be 
forced to answer in a State forum for conduct asserted in 
performance of Federal duties.
    It is my understanding, Mr. Chairman, that U.S. district 
courts have inconsistently interpreted the statute. Most 
recently in March, the Fifth Circuit ruled that the Federal 
removal statute did not apply to a Texas State law involving 
pre-suit discovery. Since 46 other States have similar laws, 
the House General Counsel's Office is concerned that more 
Federal courts will adopt the Fifth Circuit's logic.
    The problem occurs when a plaintiff who contemplates suit 
against a Federal officer petitions for discovery without 
actually filing suit in the State court. Technically, according 
to the Fifth Circuit, this conduct only anticipates a suit; it 
isn't a cause of action as contemplated by the Federal removal 
statute.
    The problem is compounded, it seems to me, because a 
separate Federal statute, section 1447, requires U.S. district 
courts to remand any case back to State court if at any time 
before the final judgment it appears that the district court 
lacks matter of jurisdiction. Judicial review of a remand order 
under section 1447 is limited and has no application to suits 
involving Federal officers and section 1442. This means 
remanded cases brought against Federal officers under these 
conditions cannot find their way back to Federal court.
    In conclusion, Mr. Chairman, the result is at odds with the 
history of the Federal removal and remand statutes that we will 
examine today. That is why I am an original cosponsor, as you 
pointed out, of H.R. 5281.
    I look forward to interacting with the witnesses this 
afternoon, and I intend to vote for the bill when we proceed to 
markup at the conclusion of the hearing.
    I yield back, Mr. Chairman.
    Mr. Johnson. I thank the gentleman for his statement. 
Without objection, other Members' opening statements will be 
included in the record.
    I am now pleased to introduce the witnesses for today's 
hearing. Our first witness will be Ms. Beth Brinkmann, Deputy 
Assistant Attorney General in the Civil Division for the 
Department of Justice. Ms. Brinkmann formerly practiced before 
the Supreme Court for approximately 15 years. During that time 
she was a partner at Morrison & Foerster and served as 
Assistant to the Solicitor General of the United States. And we 
welcome here today.
    Our second witness will be Mr. Irvin Nathan. Since November 
of 2007, Mr. Nathan has been the general counsel for the U.S. 
House of Representatives. Prior to that, Mr. Nathan was a 
senior partner at Arnold & Porter. He is a Fellow of the 
American College of Trial Lawyers, a member of the American Law 
Institute, and a fellow of the American Bar Foundation. 
Welcome, Mr. Nathan.
    We also have Professor Hellman, Arthur Hellman. Professor 
Hellman is a professor of law at the University of Pittsburgh 
where his specialties includes civil procedure, constitutional 
law and the Federal courts. Throughout his career, Professor 
Hellman has authored a number of publications in these fields, 
including two case books. Professor Hellman has testified 
before the House and Senate Judiciary Committees many times on 
issues related to the Federal courts, and we welcome him here 
today.
    Our last witness will be Professor Lonny Hoffman. Professor 
Hoffman is the George Butler Research Professor of Law at the 
University of Houston Law Center where he is an expert on civil 
procedure. In 2009, he was elected to the American Law 
Institute and since 2005 he has served on the Supreme Court of 
Texas Rules Advisory committee. Professor Hoffman received his 
law degree from the University of Texas at Austin and a 
bachelor's from Columbia University. We welcome you, Professor 
Hoffman.
    After each witness has presented his or her testimony, 
Subcommittee Members will be permitted to ask questions subject 
to the 5-minute limit.
    Mr. Nathan. Ms. Brinkmann, please proceed with your 
testimony.

TESTIMONY OF BETH BRINKMANN, DEPUTY ASSISTANT ATTORNEY GENERAL, 
   CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Ms. Brinkmann. Good afternoon, Chairman Johnson, Ranking 
Member Coble and Members of the Subcommittee. I am pleased to 
appear before the Subcommittee today to present the views of 
the Department of Justice.
    Mr. Watt. Would you pull your mike a little bit closer, 
please?
    Mr. Johnson. Ma'am, would you pull your mike up a little 
bit? And it is on; is that correct?
    Ms. Brinkmann. As I was saying, I am pleased to appear 
before the Subcommittee today to present the views of the 
Department of Justice on the Removal Clarification Act of 2010. 
The Department of Justice believes the proposed amendments to 
the removal statute would improve the Department's ability to 
represent Federal officers and agencies.
    The Department represents executive branch's officers and 
agencies whose public duties and interests often become at 
issue in litigation in State court. The removal statute gives 
them, as well as officers of the judicial branch and Members of 
Congress, the important right to be heard in a Federal forum.
    The amendment to 28 U.S.C. section 1442 would clarify one 
aspect of the statute concerning removal of a matter when a 
litigant seeks a subpoena in State court against a Federal 
official. A Federal official facing a State court subpoena has 
a right to have a Federal court determine the extent to which 
the Federal official must comply with the subpoena.
    The proposed amendment would eliminate uncertainty in law. 
It would allow Federal officials to seek a Federal forum at an 
early stage of their involvement in such proceedings. It would 
protect the Federal official's ability to have a Federal court 
determine under Federal law whether compliance with the State 
court subpoena is required.
    In order to effect the purpose of this amendment we believe 
that it would be important also to clarify the deadline by 
which removal must be sought, and we would be pleased to work 
with the Subcommittee on that issue.
    The Department likewise believed that the proposed 
amendment to the section of the removal statute that deals with 
appeals 28 U.S.C. Section 1447 would improve the Department's 
representation of Federal officials. Under current law, if a 
Federal district court decides to send back to State court a 
case involving a Federal official, the Federal Government has 
no right to repeal the remand order and must instead 
participate in the State court litigation.
    The proposed legislation would give Federal officials the 
right to appeal a district court judge's remand order and 
afford the court of appeals an opportunity to correct any legal 
error. That would allow cases that properly belong in Federal 
court to remain there, rather than being erroneously litigated 
in State court. Allowing Federal officials to repeal remand 
orders would be fully consistent with the existing exceptions 
to the no-appeal rule, where there is a similarly strong 
Federal interest in a Federal forum.
    Although the appeal right is important, as a practical 
matter we expect the change in existing law to be limited in 
scope. That is because the number of cases that the Federal 
Government seeks to remove from State court each year is small. 
We expect the occasions on which the Department would need to 
appeal a remand order are likely to continue to be few.
    In closing, we would be pleased to work with you as the 
legislation moves forward. And I would be pleased to address 
any questions that you may have.
    Mr. Johnson. Thank you, Ms. Brinkmann.
    [The prepared statement of Ms. Brinkmann follows:]

                  Prepared Statement of Beth Brinkmann









                               __________

    Mr. Johnson. Now we will hear from Mr. Nathan.

 TESTIMONY OF IRVIN B. NATHAN, GENERAL COUNSEL, OFFICE OF THE 
 GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, DC

    Mr. Nathan. Thank you, Mr. Chairman, for inviting me to 
testify concerning H.R. 5281, the ``Removal Clarification Act 
of 2010.'' As you know----
    Mr. Johnson. Sir, would you please put that mike on also?
    Mr. Nathan. The green light is on.
    Mr. Johnson. Green light? It should be a red light.
    Mr. Nathan. As you know, I have the privilege of serving as 
the General Counsel of the House. The function of our offices 
includes providing legal representation to Members, officers, 
and staff of the House when they are sued or when their 
testimony is sought to be compelled in connection with matters 
relating to their official responsibilities.
    Our office has had considerable experience in matters in 
which private litigants have attempted to use the processes of 
State courts to compel the testimony of Members and their 
staffs. It is based on the experience of our office that I 
provide my testimony in support of this legislation. Like the 
Department of Justice, our office strongly supports the bill's 
enactment.
    The statement of the Chairman accurately set forth the 
problem and our understanding of the effect of this 
legislation, as did Mr. Coble's statement, with one exception 
which makes the problem even greater than he described, because 
it was not the Fifth Circuit as a court of appeals that ruled 
that these pre-suit discovery is not a civil action. There were 
two conflicting courts in the district court in the Fifth 
Circuit that came to opposite conclusions. And the Fifth 
Circuit refused to hear an appeal on the subject to rule on the 
question, which underscores why we believe that there needs to 
be this clarifying legislation.
    The bill would make certain that necessary clarifications 
concerning the Federal officer removal statute. That statute is 
a longstanding law. Its origins go back to 1815 concerning 
where matters are brought in State courts against Federal 
officers, based on their actions as Federal officials, and they 
are transferred to the Federal court for resolution of that 
question. As noted, the law applies to officials of all three 
branches of the Federal Government, and the clarification in 
the bill seeks to ensure uniform treatment throughout the 
country whenever the processes of State courts are invoked 
against Federal officers.
    Our experience revealed that this bill is a needed 
clarification of the removal statute to ensure that removal to 
Federal court will be available to Federal officers where there 
is an issue of Federal law presented and their Federal duties 
are implicated, regardless of the procedures that are used in 
different State courts to obtain jurisdiction.
    As detailed in my written testimony, there are unintended 
ambiguities in the current law that have led to disparate 
treatment by courts of virtually identical cases, even within 
the same Federal circuit.
    In our view the bill, if enacted, would serve the public 
interest by making these clarifications in the law.
    First, the bill amends 1442 to make clear that the statute, 
where its terms are satisfied, applies not just to State 
judicial proceedings in which the officer is a defendant or a 
party, but to all proceedings in which a legal demand is made 
in State court for the officer's testimony or documents.
    Based on the disparate treatment that we have received in 
Federal courts, the current law is not sufficiently clear that 
ancillary proceedings against Federal officers, such as pre-
suit discovery petitions or subpoena enforcement actions, are 
civil actions for purposes of removal. As noted more than 40 
states have procedures for pre-suit discovery and their 
standards vary. When a Federal official is subject to them, the 
official should have the matter decided by a Federal court.
    The second amendment relates to the appeal and says that if 
a Federal court rejects a removal petition in the case of a 
Federal officer and remands to the state court there can be an 
appeal to the Federal court of appeals. As matters presently 
stand, appellate review of a district court remand to the State 
courts of an action against a Federal official is generally not 
available. That means that over 600 different Federal district 
judges have the final unreviewable say over these issues.
    In light of the clarifying amendments that we seek to this 
statute, as in the bill, the provision regarding appeal will 
only apply in a very narrow set of cases, is unlikely to delay 
matters, and will tend to promote uniformed interpretation of 
the Federal officer removal statute.
    The bill appropriately leaves in place the current law and 
practices governing Federal officer removal in nearly all 
respects. The bill does not alter the standard for general 
removal for Federal officer removal under 1442. And it won't 
change the widespread current practice in cases involving 
subpoenas, like a subpoena to a Federal official whereby only 
the ancillary proceedings involving the Federal officer is 
removed under section 1442, and the remainder of the case stays 
in State court.
    I could cite a score of cases in virtually every circuit 
where the subpoena enforcement proceeding is removed and the 
remainder stays in State court. That issue has been raised by 
two of the academic witnesses, and I certainly want to say that 
it is our understanding that this bill does not change that 
policy, and that the underlying civil action in State court 
would remain in State court. It is only the ancillary 
proceeding that involved enforcement of a subpoena, or, in the 
case of a pre-suit discovery petition, that would go and would 
be removed. And we look forward to working with the 
Subcommittee to clarify that and to make sure that that is 
understood in the statute and in the legislative history.
    Mr. Johnson. And if you will sum up, Mr. Nathan.
    Mr. Nathan. Yes. Just in short, e bill simply clarifies the 
existing statute, and, through the proposed amendments, will 
help ensure that Federal officials will not be treated 
differently depending on where or by what procedure they are 
hailed in to State court. Thank you, Mr. Chairman.
    Mr. Johnson. Thank you, sir.
    [The prepared statement of Mr. Nathan follows:]

                 Prepared Statement of Irvin B. Nathan



































                               __________
    Mr. Johnson. Now we will hear from Professor Hoffman.

TESTIMONY OF LONNY HOFFMAN, GEORGE BUTLER RESEARCH PROFESSOR OF 
       LAW, UNIVERSITY OF HOUSTON LAW CENTER, HOUSTON, TX

    Mr. Hoffman. Mr. Chairman----
    Mr. Johnson. If you would. That microphone down there, I 
think it is a virus going around.
    Mr. Hoffman. Mr. Chairman and Members of the Committee, 
whatever its virtues, this bill could be significantly improved 
if more specific language were used to clarify its intended 
affects. There are a number of examples that can be cited, but 
in my brief time this afternoon I want to focus on one 
particular issue involving pre-suit discovery. This issue 
implicates a vital policy issue that is raised by the bill; and 
that is this: What would be the effect of allowing removal of a 
State pre-suit discovery request or order if there is no 
comparable right to such discovery under existing Federal law? 
The proposed legislation does not provide a clear answer to 
this question.
    In my judgment, the bill should expressly clarify that 
after removal, a Federal judge has authority to decide whether 
to allow the sought-after pre-suit discovery.
    To illustrate the problem plainly, consider this example. 
Someone who believes she was injured, but doesn't have enough 
information to bring a suit, files a request to take pre-suit 
discovery in a State court from a Federal officer. She says she 
believes the Federal officer has information that would lead 
her to determine whether she has a viable claim against 
someone; perhaps against a Federal officer or perhaps against 
some other entity, a separate third party entirely.
    Now, assume that under State law she would be able to 
obtain the requested investigatory discovery; but under rule 
27, the Federal pre-suit discovery rule, she could not. So what 
happens if the Federal officer removes this pursuant to 1442 to 
Federal court? Does it show up there dead on arrival, to be 
immediately dismissed? Or does the Federal judge somehow have 
the authority to decide whether to allow the pre-suit discovery 
to go forward? Again, the proposed legislation is silent on 
these vital questions.
    A court faced with these choice of law problems could 
reasonably find that the law implicitly authorizes the Federal 
judge to decide whether to grant the pre-suit discovery or not. 
But the difficulty is with the adverb. To say that a law 
implicitly allows a Federal judge to do something, leaves a 
great deal of room for doubt and for many different opinions as 
to the right answer. Put another way, the proposed legislation 
could be read alternatively as immunizing the Federal officer 
or agency from ever having to provide discovery prior to suit.
    That nicely frames the key problem: What reasonable policy 
justification would warrant granting blanket immunity in this 
context?
    In the Brown and Williamson case out of the D.C. circuit, 
which appears to be a model on which this proposed legislation 
is based, at least in part, when a subpoena was issued to 
Federal officers in connection with a pending State case, the 
court allowed the proceedings to be removed and then proceeded, 
quite correctly, to decide whether a valid defense existed that 
would excuse the Federal officer's compliance with the State 
order in that case.
    The same result should attend when the issue is pre-suit 
discovery. If a valid defense would trump, in whole or in part, 
the taking of such discovery, then that defense can and should 
be presented to the Federal judge to rule on.
    Moreover, if a court were to read the ambiguous language 
now in the bill as precluding a Federal judge from ever 
allowing pre-suit discovery when it is not authorized by rule 
27, then section 1442 would be unique. Congress has never 
before passed a law that, in allowing removal of a case to 
Federal court, had the simultaneous effect of terminating it.
    If the proposed legislation is clarified--Mr. Chairman, 
shall I continue? I am almost finished.
    Mr. Johnson. Yes.
    Mr. Hoffman. Mr. Chairman, if the proposed legislation is 
clarified to make clear that its purpose is only to allow 
Federal officers and agencies to be able to get into Federal 
court, as Mr. Coble was saying in his opening remarks, and then 
to allow the Federal judge to rule upon whether a Federal 
defense trumps, then I believe 1442 will operate in the same 
manner as every other removal statute. It will change the 
forum, but not necessarily the final outcome of the case.
    Thus, and in conclusion, I believe the proposed legislation 
should expressly clarify that after removal, a Federal judge 
has authority to decide whether to allow the pre-suit discovery 
to go forward, subject of course to whatever Federal defenses 
may apply. Thank you.
    Mr. Johnson. Thank you Professor Hoffman.
    [The prepared statement of Mr. Hoffman follows:]

                  Prepared Statement of Lonny Hoffman















































                               __________

    Mr. Johnson. And last but not least, we will hear from 
Professor Hellman.

TESTIMONY OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF 
            PITTSBURGH SCHOOL OF LAW, PITTSBURGH, PA

    Mr. Hellman. Thank you, Mr. Chairman. Is this microphone 
on?
    Thank you, Mr. Chairman. As you have heard, H.R. 5281 deals 
with two aspects of the Federal officer removal statute: the 
kind of cases that can be reviewed and an appellate review of 
remand orders.
    I will start with the latter. I agree with the other 
witness that appellate review should be available when a 
district court remands a case that has been removed under 
section 1442. H.R. 5281 accomplishes this with a simple and 
straightforward fix, and I support that aspect of the bill 
wholeheartedly.
    Clarifying the kind of proceedings that can be removed is 
not such a simple task. And I will begin by outlining the 
reasons why this is so. When considering revisions to the 
Federal officer removal statute, it is only natural to look at 
the law from the perspective of the Federal officers and 
agencies who will be invoking it. But there is another 
perspective that is equally important; that of private 
citizens, state officials, and other parties who as litigants 
in a State court proceeding suddenly and unwillingly find 
themselves transported into Federal court.
    Now, that is not all, because as you are aware, the Federal 
officers and agencies do not have to ask any court, State or 
Federal, for permission to remove. The moment that the removing 
party files a copy of the notice of removal with the State 
court, the case is removed; and it won't return to the State 
court unless and until the district court issues an order of 
remand.
    That can impose substantial burdens on the other parties. 
And among other things, those parties are often represented by 
lawyers who are inexperienced in Federal practice and 
unfamiliar with the provisions of the judicial code that govern 
removal.
    Against that background it is particularly important that 
the removal statutes be drafted with the greatest possible 
clarity and directness. They should also be drafted in a way 
that serves Federal interests, without interfering 
unnecessarily with the course of litigation in the State court.
    I have some concerns about H.R. 5281 on both scores. The 
amended statute is not as clear and direct as it could be. In 
my written statement, I recalled attention to some particular 
concerns about how the amended statute would work. Professor 
Hoffman has raised some of those same concerns and others as 
well. I believe that those should be dealt with in the 
legislation itself and not left to be worked out by litigation 
in the future.
    I also have a concern that H.R. 5281 in its present form 
does go somewhat further than it needs to in defining the kind 
of State court proceedings that can be removed. And in 
particular, the bill appears to allow removal of the entire 
civil action or criminal prosecution, even when the Federal 
officer is not a party and only one segment of the proceeding 
concerns any Federal interests.
    Now, we may have some disagreement here about whether the 
bill ought to be read that way, but we do seem to agree that 
only the Federal aspect ought to be removable.
    So how should that be dealt with? In my statement I suggest 
a couple of approaches. One would be to authorize a separate 
civil action in Federal court, an action for a protective 
order. The second is to write the removal statute in such a way 
as to distinguish between stand-alone proceedings and ancillary 
or embedded or collateral proceedings. There are a number of 
terms for that.
    I have something of a preference for the separate 
proceeding in Federal court. I realize, though, that would be 
something of an innovation. And in my statement I have 
suggested some language for an approach that accomplishes the 
purpose within the removal framework. And basically, rather 
than trying to define civil action and criminal prosecution to 
include proceedings that do not fit easily into either of those 
categories, the legislation should directly define the 
proceedings, other than conventional civil actions and criminal 
prosecutions, that can be removed and it should distinguish 
between stand-alone proceedings like those in Price against 
Johnson, or embedded and ancillary proceedings like those in 
Stallworth.
    I would welcome the opportunity to work with the 
Subcommittee and its staff to fine-tune this important 
legislation. Thank you.
    Mr. Johnson. Thank you, Professor Hellman.
    [The prepared statement of Mr. Hellman follows:]

                Prepared Statement of Arthur D. Hellman


















































                               __________
    Mr. Johnson. We do have votes. We have got about 10 minutes 
left before the time for voting closes, but I think in the 
interest of being expeditious, I will go ahead and ask my 
questions now. And when we return, we will proceed with the 
Ranking Member's questions.
    My first question is for the panel. There is a clear 
circuit split on whether any judicial action including pre-suit 
discovery request, constitutes a, quote, civil action, for 
purposes of the Federal officer removal statute. What evidence 
is there in the legislative history of section 1442 supporting 
either interpretation?
    Mr. Nathan. I will take that first, Your Honor--Mr. 
Chairman.
    Mr. Johnson. Your Honor is fine.
    Mr. Nathan. I am expecting you will be going to the bench 
soon.
    The legislative history of 1948 of the Federal removal 
statute as a whole makes clear that when the Congress decided 
to use the word ``civil action,'' they were trying to condense 
all kinds of proceedings into a single word, single phrase, 
``civil action.'' And the legislative history makes clear they 
were incorporating many different kinds of petitions and cause-
of-action suits and proceedings under the words ``civil 
action.''
    So it is our view that that legislative history from 1948 
makes clear that the original intent of Congress in 
consolidating the Federal officers removal statute meant it to 
include all kinds of proceedings, including pre-suit discovery 
and subpoenas. And I think that the evidence of that is that 
within the Federal rules itself, there is the concept, again, 
of civil action; and in Federal rule 27, there is a possibility 
of pre-suit discovery in very limited circumstances.
    And so the contemplation was when they said civil action: 
They meant anything that starts the proceeding against a 
defendant for any kind of matter, whether it is for money, 
injunction, or even discovery.
    So I think that the 1948 legislation is pretty clear 
history that this is a clarification of what was intended by 
Congress and not a change from that.
    Mr. Hoffman. I am not sure I would read the history the 
same way. But maybe what I would say in direct answer to your 
question is that I think that the change to allow certain 
matters that are relating to Federal officers to come within 
the ambit of 1442 under this definition of ``civil actions'' or 
``criminal proceedings,'' that there is nothing inappropriate 
about that, and that what you are seeing with the courts, Mr. 
Johnson, is that they are struggling to try to say what is this 
animal. It isn't a lawsuit, it isn't what we normally think of 
as a civil action. And most of them have concluded that it is 
not. There actually are few that concluded that it is.
    And so for that change to take effect, for the Congress to 
enact a law that would simply deem these to be within the orbit 
of 1442, strikes me as both eminently defensible and wise. But, 
again the devil is in some of these important details that we 
raised here today.
    Mr. Hellman. I would just add that the pre-suit proceedings 
I think come very easily within a functional definition, and it 
is very striking that in Price against Johnson, the district 
court, although rejecting the removal, said the petition in 
that case had all the indicia of a civil proceeding--a civil 
proceeding--it looked like a civil action. So I don't think 
this legislation is a radical change at all; it is just 
clarifying what the law ought to be.
    Mr. Johnson. Thank you.
    Ms. Brinkmann, I want to thank you for DOJ's support of the 
Removal Clarification Act. Can you tell us how pre-suit 
discovery has impacted Federal officials at the Department of 
Justice, and are there any suits against the Administration 
that are currently pending that passage of this bill will have 
an effect on?
    Ms. Brinkmann. Certainly, Your Honor. There are a wide 
range of examples of Federal officers served with subpoenas 
because of their involvement, whether it is law enforcement 
investigations or other matters, that then find their way to 
State court. For example, officials at the IRS, the National 
Safety Transportation Board, the four services, Veterans 
Affairs, also law enforcement, FBI, DEA agents; some of the 
reported cases, for example, an official attorney in a Federal 
judiciary also I would point out.
    It is important here, in order to enforce the right that 
Congress intended to have the Federal courts decide these 
questions.
    And I wanted to mention one thing Professor Hoffman brought 
up. We don't experience or envision having discovery 
relitigated in Federal court. Generally our experience is when 
there is a removal in a situation with a subpoena, the Federal 
court exercises derivative jurisdiction and looks to the 
question of sovereign immunity. Generally, in many instances, 
Federal officials and agencies would be immune from the 
subpoena because there hasn't been a waiver of sovereign 
immunity.
    In addition to Federal court, then the next question would 
be--just as it would be in the State court--for the executive 
branch, there is often regulations that are called ``touhy'' 
regulations after the Supreme Court case that upheld the 
constitutionality of this type of provision. But there are 
regulations that set forth the scope and procedures to be 
followed when seeking information from an executive branch 
official. And the normal course would be the most common, when 
there are regulations like that. But the subpoena matter would 
be dismissed, and the appropriate action there is to bring a 
civil action, just reported in the Administrative Procedures 
Act. So I just wanted to clarify that aspect of our experience 
and how that normally plays out.
    Mr. Johnson. Thank you, Ms. Brinkmann.
    Mr. Nathan, the chief purpose of the removal statute is to 
prevent harassment of Federal officers. How broad would you 
define harassment in this context? And in your experience as 
General Counsel to the House of Representatives, are State 
court proceedings often used to harass Members of Congress?
    Mr. Nathan. I don't know about often, but it happens too 
many times to be justified. There are instances. The classic 
example of that is that a person comes into a Member's office, 
perhaps district office, or even the office in D.C., causes 
some disturbance and is then prosecuted for disturbing the 
peace. And the defendant seeks to subpoena the Member to ask 
the Member questions about the Member's policy positions which 
led to the protest in the first place.
    It really has no bearing on the disturbance of the peace 
matter, and it is a way to either harass or at least to impose 
on the Member. And we have seen that on both sides of the 
aisle, on all kinds of issues, and in many State courts 
throughout the country.
    And in the two pre-suit discovery matters that were brought 
in the Fifth Circuit with differing results, I would say in 
both cases those were abusive efforts that were not really 
looking for the merits for potential lawsuits.
    In the one case, the potential of the claim was they wanted 
to see whether what the Congresswoman had said would justify a 
defamation action. In the first place, what the Congresswoman 
had said was already a matter of public record. It was on a 
recording that was available to the potential plaintiff.
    And in the second place, if a defamation suit had been 
brought, it would have been brought and removed to Federal 
court. And since under the Federal Torts Claims Act, under the 
procedures there, the United States Government would have been 
substituted. Sovereign immunity has not been waived for 
defamation actions, and the suit would have been dismissed.
    So there was really no real reason for the potential pre-
suit discovery. This was done for some ulterior motive, maybe 
dealing with the particular Congresswoman or with a criminal 
investigation of the petitioner which was then underway.
    And similarly, in the case involving Senator Landrieu's 
staff, the effort was made to circumvent an administrative 
proceeding which did not allow the discovery which was being 
sought.
    So there are a number of instances in which these matters 
have been abused, and I think it is appropriate that the 
Federal courts decide these questions of the discovery that is 
either going to be during the proceeding or preceding the 
proceeding.
    Mr. Johnson. Thank you, Mr. Nathan. We have four votes 
pending. It will take about 20 to 30 minutes for us to get back 
and during that time we will be in recess.
    [Recess.]
    Mr. Johnson. Thank you, ladies and gentlemen. We are back 
in session and we left off with me ending my questions, and so 
next we will hear from our Ranking Member, the distinguished 
Mr. Howard Coble.
    Mr. Coble. Thank you, Mr. Chairman. I apologize to the 
panel. I had to be called to testify at another Judiciary 
Subcommittee hearing, and I apologize to you for that. But we 
have examined your questions--testimony.
    Mr. Nathan, how many section 1442 cases does your office 
deal with in an average year?
    Mr. Nathan. I don't really have a number at my fingertips, 
but I would say with respect--the majority of them are subpoena 
cases as opposed to recent discovery cases.
    Mr. Coble. Is your mike on, Mr. Nathan?
    Mr. Nathan. Ah, thank you. Sorry for that. I don't really 
have the numbers in answer to your question. We can obviously 
check that out and provide it for the record; but it is a 
substantial number of cases in State courts that we have to 
seek removal for, both for lawsuits against Members and also 
for subpoenas for testimony.
    Mr. Coble. Did you sense any hostility or resentment for 
State courts and State bars over Federal removal?
    Mr. Nathan. We have not seen any evidence of such 
hostility. In the first place, as I mentioned, we are only 
seeking removal. When a Member hasn't been sued, we are only 
seeking removal of that part of the proceeding that relates to 
the subpoena for testimony or documents of the Member or the 
staff.
    And of course the Federal courts are greatly respected and 
fair to all the parties before them, so there is really no 
cause for the concern. And once the matter is over, the matters 
on the merits go back to the State court when the Member is not 
a party to the lawsuit.
    Mr. Coble. I thank you, Mr. Nathan.
    Mr. Chairman, we received outstanding witness testimony for 
this hearing, and I am not averse to marking up the bill today, 
but I think we would do ourselves and the witnesses a 
disservice if we don't take their testimony into account at 
some point.
    The witnesses, let me ask you, will you all be willing to 
work with our staffs on a possible manager's amendment that 
could be taken up at the full Committee? I really believe we 
really need to address some of the issues, particularly that 
Professors Hellman and Hoffman have raised.
    Mr. Nathan. Absolutely. We are willing to work, eager to 
work with the Committee, the Subcommittee, and the staff to 
improve this draft legislation.
    Mr. Coble. I thank each of the witnesses. Mr. Chairman I 
yield back.
    Mr. Johnson. Thank you, Mr. Ranking Member. I concur 
precisely in your last question and the responses thereto. So I 
would like to thank you all for your testimony, and, without 
objection, Members will have 5 legislative days to submit any 
additional questions, which we will forward to the witnesses 
and ask that you answer as promptly as you can to be made a 
part of the record. Without objection, e record will remain 
open for 5 legislative days for the submission of any other 
additional materials.
    I thank everyone for their time and patience. The markup of 
H.R. 5281 will follow this hearing. This hearing of the 
Subcommittee on Courts and Competition policy is adjourned.
    [Whereupon, at 3:50 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Howard Coble, a Representative in 
    Congress from the State of North Carolina, and Ranking Member, 
             Subcommittee on Courts and Competition Policy

    Mr. Chairman, I appreciate your calling this legislative hearing 
today. The bill before us, H.R. 5281, addresses an obscure but 
important issue that touches on federalism and the balanced 
relationship between the national government and the individual states.
    The ``Removal Clarification Act of 2010'' primarily amends Section 
1442 of title 28 of the US Code. This is a statute that allows federal 
officers, under limited conditions, to remove cases filed against them 
in state court to US district court for disposition.
    The purpose of Section 1442 is to deny state courts the power to 
hold a federal officer criminally or civilly liable for an act 
allegedly performed in the execution of their federal duties. This 
doesn't mean federal officers can break the law; it just means that 
these cases are transferred to US district court for consideration.
    Congress wrote the statute because it deems the right to remove 
under these conditions essential to the integrity and preeminence of 
the federal government under our Constitution. Federal officers or 
agents, including congressmen, shouldn't be forced to answer in a state 
forum for conduct asserted in performance of federal duties.
    It's my understanding that US district courts have inconsistently 
interpreted the statute. Most recently in March, the Fifth Circuit 
ruled that the federal removal statute does not apply to a Texas state 
law involving pre-suit discovery. Since 46 other states have similar 
laws, the House General Counsel's Office is concerned that more federal 
courts will adopt the Fifth Circuit's logic.
    The problem occurs when a plaintiff who contemplates suit against a 
federal officer petitions for discovery without actually filing suit in 
state court. Technically, according to the Fifth Circuit, this conduct 
only anticipates a suit; it isn't a ``cause of action'' as contemplated 
by the federal removal statute.
    The problem is compounded because a separate federal statute, 
Section 1447, requires US district courts to remand any case back to 
state court if ``at any time before final judgment it appears that the 
district court lacks subject matter jurisdiction.'' Judicial review of 
remand orders under Section1447 is limited and has no application to 
suits involving federal officers and Section 1442. This means remanded 
cases brought against federal officers under these conditions cannot 
find their way back to federal court.
    This result is at odds with the history of the federal removal and 
remand statutes that we will examine today. That's why I'm an original 
cosponsor of H.R. 5281. I look forward to interacting with the 
witnesses this afternoon, and I intend to vote for the bill when we 
proceed to markup at the conclusion of the hearing.

                                 
