[Congressional Record Volume 156, Number 111 (Tuesday, July 27, 2010)]
[House]
[Pages H6133-H6134]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
REMOVAL CLARIFICATION ACT OF 2010
Mr. JOHNSON of Georgia. Mr. Speaker, I move to suspend the rules and
pass the bill (H.R. 5281) to amend title 28, United States Code, to
clarify and improve certain provisions relating to the removal of
litigation against Federal officers or agencies to Federal courts, and
for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 5281
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Removal Clarification Act of
2010''.
SEC. 2. REMOVAL OF CERTAIN LITIGATION TO FEDERAL COURTS.
(a) Clarification of Inclusion of Certain Types of
Proceedings.--Section 1442 of title 28, United States Code,
is amended by adding at the end the following:
``(c) As used in subsection (a)--
``(1) the terms `civil action' and `criminal prosecution'
include any proceeding (whether or not ancillary to another
proceeding) to the extent that in such proceeding a judicial
order, including a subpoena for testimony or documents, is
sought or issued; and
``(2) the term `against' when used with respect to such a
proceeding includes directed to.''.
(b) Conforming Amendments.--Section 1442(a) of title 28,
United States Code, is amended--
(1) in paragraph (1)--
(A) by striking ``capacity for'' and inserting ``capacity,
for or relating to''; and
(B) by striking ``sued''; and
(2) in each of paragraphs (3) and (4), by inserting ``or
relating to'' after ``for''.
(c) Application of Timing Requirement.--Section 1446 of
title 28, United States Code, is amended by adding at the end
the following:
``(g)(1) Where the civil action or criminal prosecution
that is removable under section 1442(a) is a proceeding in
which a judicial order for testimony or documents is sought
or issued, the thirty-day requirement of subsections (b) and
(c) is satisfied if the person or entity desiring to remove
the proceeding files the notice of removal not later than
thirty days after receiving, through service, notice of that
proceeding.
``(2) Where the civil action or criminal prosecution that
is removable under section 1442(a) is a proceeding in which a
judicial order described in paragraph (1) is sought to be
enforced, the thirty-day requirement of subsections (b) and
(c) is satisfied if the person or entity desiring to remove
the proceeding files the notice of removal not later than
thirty days after receiving, through service, notice of that
proceeding.''.
(d) Reviewability on Appeal.--Section 1447(d) of title 28,
United States Code, is amended by inserting ``1442 or''
before ``1443''.
SEC. 3. PAYGO COMPLIANCE.
The budgetary effects of this Act, for the purpose of
complying with the Statutory Pay-As-You-Go Act of 2010, shall
be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act,
submitted for printing in the Congressional Record by the
Chairman of the House Budget Committee, provided that such
statement has been submitted prior to the vote on passage.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Georgia (Mr. Johnson) and the gentleman from Florida (Mr. Rooney) each
will control 20 minutes.
The Chair recognizes the gentleman from Georgia.
General Leave
Mr. JOHNSON of Georgia. Mr. Speaker, I ask unanimous consent that all
Members have 5 legislative days to revise and extend their remarks and
include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Georgia?
There was no objection.
Mr. JOHNSON of Georgia. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, the Removal Clarification Act of 2010 will enable
Federal officials--Federal officers, in the words of the statute--to
remove cases filed against them to Federal court in accordance with the
spirit and intent of the current Federal officer removal statute.
Under the Federal officer removal statute, 28 U.S.C. 1442(a), Federal
officers are able to remove a case out of State court and into Federal
court when it involves the Federal officer's exercise of his or her
official responsibilities. However, more than 40 States have pre-suit
discovery procedures that require individuals to submit to deposition
or respond to discovery requests even when a civil action has not yet
been filed. Courts are split on whether the current Federal officer
removal statute applies to pre-suit discovery. This means that Federal
officers can be forced to litigate in State court despite the Federal
statute's contrary intent.
This bill will clarify that a Federal officer may remove any legally
enforceable demand for his or her testimony or documents if the basis
for contesting the demand has to do with the officer's exercise of his
or her official responsibilities. It will also allow for appeal to the
Federal circuit court if the district court remands the matter back to
the State court over objection of the Federal officer.
Some clarity issues were raised by witnesses during a Courts and
Competition Policy Subcommittee hearing on the bill. Since the
subcommittee markup, we have worked to address those issues, and the
bill before us today clarifies the bill without making substantive
changes. In particular, the addition of ``whether or not ancillary to
another proceeding'' helps clarify that the bill will not result in the
removal of entire State court actions to Federal court simply because a
Federal officer is sent a discovery request. In this type of situation,
the Federal court is to consider the discovery request as a separate
proceeding from the underlying State court case so that it will now be
removed and dealt with separately without removing the underlying case.
Nor will this bill lead to cases being dismissed in Federal court on
the grounds that there is no Federal corollary to pre-suit discovery.
Application of the State pre-suit discovery law will be considered as
substantive under the Erie doctrine. The Federal court will apply the
State substantive law. This legislation does not create a substantive
loophole. It merely makes a procedural clarification.
Finally, the bill makes clear that the timing requirement under 28
U.S.C., section 1446 is not affected. It restates the 30-day
requirement for removing the case after the judicial order is sought as
well as after the judicial
[[Page H6134]]
order is enforced. This addition to section 1446 is limited to only the
Federal officer removal under section 1442.
This bill has strong bipartisan support. I would like to thank
Chairman Conyers, Ranking Member Smith, and the ranking member of the
Court Subcommittee, Howard Coble of North Carolina, for their work on
this bill, and I urge my colleagues to support this important
legislation.
I reserve the balance of my time.
{time} 1900
Mr. ROONEY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the Removal Clarification Act of 2010 amends the statute
that allows Federal officers, under limited conditions, to remove cases
filed against them in State court to the U.S. District Court for
disposition. The purpose of current law is to restrict State courts'
power to hold Federal officers liable for acts 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 Federal courts for determination. Federal officers and
agents, even Members of Congress, should be forced to answer to Federal
courts for their conduct during Federal duties.
Federal courts, however, have inconsistently interpreted the current
statute, and that inconsistency can harm Federal interests. For
example, this March the Court of Appeals for the Fifth Circuit upheld a
district court ruling in the State of Texas that the Federal removal
statute does not apply to a Texas law involving pre-suit discovery
against a Federal officer. Because 46 other States have similar laws,
the House general counsel's office became concerned that more Federal
courts will adopt the Fifth Circuit's logic and then urge us to clarify
the Federal law.
The problem occurs when a plaintiff considering a suit against a
Federal officer petitions for discovery without actually filing suit in
State court. Many Federal courts have held that this conduct only
anticipates a suit; it isn't a cause of action as contemplated and
covered by the current Federal removal statute. The problem is
compounded because a separate Federal statute requires Federal courts
to send 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 is limited and does not apply to
suits involving Federal officers. 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 purpose of the Federal removal and
remand statutes. The bill before us will clarify existing Federal law
and overturn the recent Fifth Circuit ruling. It restores the core
purpose of the removal statute by ensuring any claim against Federal
officers at any stage of a proceeding or even potential proceeding will
be entertained in a Federal court.
I urge my colleagues to support H.R. 5281.
I yield back the balance of my time.
Mr. JOHNSON of Georgia. Mr. Speaker, I yield back the balance of my
time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Georgia (Mr. Johnson) that the House suspend the rules
and pass the bill, H.R. 5281, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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