[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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