[Congressional Record Volume 156, Number 71 (Wednesday, May 12, 2010)]
[Extensions of Remarks]
[Pages E827-E828]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          SUPPORT OF THE ``REMOVAL CLARIFICATION ACT OF 2010''

                                 ______
                                 

                  HON. HENRY C. ``HANK'' JOHNSON, JR.

                               of georgia

                    in the house of representatives

                        Wednesday, May 12, 2010

  Mr. JOHNSON of Georgia. Madam Speaker, I rise today to introduce the 
``Removal Clarification Act of 2010.'' This bipartisan legislation will 
help protect the Federal Government from interference with its 
operations.
  Under the federal officer removal statute, 28 U.S.C. Sec. 1442(a), 
``any officer of the United States or of any agency thereof, sued in an 
official capacity or individual capacity for any act under color of 
such office'' may remove the case to Federal district court. The 
statute is designed to enable Federal officials to remove a case out of 
State court and into Federal court.
  However, in over forty States, individuals may be deposed and/or 
required to produce documents despite the fact that they have not yet 
been sued. Such pre-suit discovery is sometimes used by plaintiffs to 
confirm that they are suing the proper defendant, identify unknown 
defendants, or investigate potential claims.
  Courts are split on whether the removal statute applies to pre-suit 
discovery. Today's legislation will make clear that the removal statute 
applies to all State judicial proceedings in which a legal demand is 
made for a Federal officer's testimony or documents, including pre-suit 
discovery. It will also clarify that the Federal officer need not wait 
until he or she is subject to contempt in order to seek removal.
  The ambiguity over whether a Federal officer can invoke the removal 
statute during pre-suit discovery was presented in a recent case 
involving Republican Eddie Bernice Johnson, who was the subject of a 
pre-suit discovery petition. Republican Johnson removed the action from 
State court on the basis of the removal statute. However, the Federal 
court held that the pre-suit discovery proceeding did not constitute a 
``civil action or criminal prosecution'' for purposes of the statute 
and remanded the petition to State court. The bill I introduce today 
would have permitted such removal.
  This bill will not alter the well-settled requirement that removal 
under section 1442(a)(1)

[[Page E828]]

must be predicated on the availability of a Federal defense. Nor will 
it result in removal of cases that belong in State court since only the 
part of the case involving the Federal officer is removed under 
1442(a)(1).
  In short, this legislation will enable Federal officials to remove 
cases to Federal court in accordance with the spirit and intent of the 
removal statute.
  I hope that my colleagues will join me in supporting this bipartisan 
legislation.

                          ____________________