Congressional Record, Volume 156 Issue 157 (Friday, December 3, 2010)

[Congressional Record Volume 156, Number 157 (Friday, December 3, 2010)]
[Senate]
[Pages S8508-S8510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

REMOVAL CLARIFICATION ACT OF 2010

Mr. DURBIN. Mr. President, I ask unanimous consent the Judiciary
Committee be discharged from further consideration of H.R. 5281 and the
Senate proceed to its immediate consideration.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report the bill by title.
The assistant legislative clerk read as follows:

A 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.

There being no objection, the Senate proceeded to consider the bill.
Mr. LEAHY. Mr. President, the Removal Clarification Act of 2010 is an
important piece of legislation that will

[[Page S8509]]

clarify a Federal agency or officer's ability to remove State judicial
proceedings to Federal court. The bill has strong support from both
sides of the aisle, and was passed by the House of Representatives
without opposition. I have worked with Senator Sessions on an amendment
to further clarify the rules governing removal to Federal court of
State judicial proceedings when judicial orders including subpoenas are
issued to Federal agencies or officials.
Existing law allows removal to Federal court of any ``civil action or
criminal prosecution'' that is ``commenced in a State court'' against a
Federal agency or officer. However, there is a question whether a
subpoena directed toward a Federal agency or officer itself constitutes
a ``civil action or criminal prosecution'' that allows removal under
section 1442. While some courts have allowed removal in these
situations, others have not. Compare Brown & Williamson Tobacco Corp.
v. Williams, 62 F.3d 408, 413-15, D.C. Cir. 1995 with Indiana v. Adams,
892 F.Supp. 1101, S.D. Ind. 1995, Alabama v. Stephens, 876 F.Supp. 263,
M.D. Ala. 1995, Price v. Johnson, 600 F.3d 460, 5th Cir. 2010
(dismissing appeal of district court's refusal to allow removal of
subpoena proceeding against congresswoman).
The Removal Clarification Act of 2010 resolves this split in
authority by amending section 1442 to clarify that the section allows
removal of any proceeding in which a judicial order, including a
subpoena for testimony or documents, is sought from or issued to a
Federal agency or officer.
Earlier versions of this bill did not expressly address whether
removal under the new statute would be limited to just the subpoena
proceeding, in a case that is otherwise purely between private
litigants but in which a Federal agency or officer has been subpoenaed,
or whether the whole case would be removed. Members in both the House
and Senate agree that in cases involving only the issuance of a
subpoena to a Federal agency or officer, only the subpoena proceeding
should be removed and the remainder of the civil action or criminal
prosecution should remain in State court.
Some courts that currently allow removal of a subpoena proceeding
have made it their practice to remove only that proceeding if the rest
of the case is not otherwise removable. I cite e.g., Pollock v.
Barbarosa Group, Inc., 478 F. Supp.2d 410, W.D.N.Y. 2007; In re
Subpoena in Collins, 524 F.3d 249, D.C. Cir. 2008; Colorado v. Rodarte,
2010 WL 924099, D. Colo. 2010. Other courts, however, have held that
the entire case should be removed, even if no Federal officer was a
defendant in the underlying suit and the case is not otherwise
removable. I cite e.g., Swett v. Schenk, 792 F.2d 1447, 1450-51, 9th
Cir. 1986; Ferrell v. Yarberry, 848 F.Supp. 121, E.D. Ark. 1994.
Moreover, while these cases at least hold that the district court may
remand the case to the State court once the subpoena proceeding is
resolved, other courts hold that once a case is removed under section
1442, there is no authority to remand the case to the State court even
after the Federal issue is resolved. I cite e.g., Jamison v. Wiley, 14
F.3d 222, 238-39, 4th Cir. 1994.
To make clear that removal of a subpoena proceeding, or other minor
proceeding, is limited only to that proceeding if the case is not
otherwise removable, the Senate amendment to this bill adds a second
sentence to section 1442(c) that provides: ``If removal is sought for a
proceeding described in the previous sentence, and there is no other
basis for removal, only that proceeding may be removed to the district
court.''
The language of 1442(c) is intended to be broad because it seeks to
encompass not only subpoenas for testimony or documents, but also any
other kind of judicial process that state courts could direct to
Federal officers in relation to the performance of their official
duties. The parenthetical clause in the first sentence of 1442(c)
specifying that the proceeding need not be ancillary is added because
some states allow subpoenas to be issued, or direct other judicial
orders toward persons, before a complaint has even been filed. This was
the situation in the Price v. Johnson case, which occurred earlier this
year. When such pre-suit proceedings occur, they cannot be described as
ancillary because there is nothing for them to be ancillary to.
Although the language in the first sentence of section 1442(c) is
broad, I should make clear that it does not encompass all judicial
proceedings. A proceeding in which a ``judicial order . . . is sought
or issued'' means a minor proceeding, such as a subpoena proceeding,
but does not include the complaint for relief itself. The second
sentence of section 1442(c) would therefore not apply to a case in
which a complaint for relief or a criminal prosecution has been brought
against a Federal agency or officer, or a case that is removable under
any other section of the United States Code. If the Federal agency or
officer is a defendant in the underlying case, the normal rule, as
described in section 3726 of Wright & Miller's Federal Practice and
Procedure, would continue to apply:

Because Section 1442(a)(1) authorizes removal of the entire
case even if only one of the controversies it raises involves
a federal officer or agency, the section creates a species of
statutorily-mandated supplemental subject-matter
jurisdiction. The district court can exercise its discretion
to decline jurisdiction over the supplemental claims if the
federal agency drops out of the case, or even if the federal
defendant remains a litigant. Whether the supplemental claims
should be remanded if the federal officer's ``anchor'' claim
is dismissed or settled, or if the supplemental claims have
been asserted against non-federal parties, depends on
considerations of comity, federalism, judicial economy, and
fairness to litigants.

Changes made by this bill to section 1442 are not intended to
displace ``the requirement that federal officer removal must be
predicated on the allegation of a colorable federal defense.'' I cite
Mesa v. California, 489 U.S. 121, 129, 1989. This legislation also does
not displace the settled rule that ``the invocation of removal
jurisdiction by a Federal officer does not revise or alter the
underlying law to be applied. In this respect, it is a purely
derivative form of jurisdiction, neither enlarging nor contracting the
rights of the parties.'' I cite Arizona v. Manypenny, 451 U.S. 232,
242, 1981.
The new time limit created by section 1446(g) allows a Federal agency
or officer subpoenaed to seek removal either within 30 days of
receiving, through service, notice of when the subpoena is requested or
issued or 30 days of receiving, through service, notice of when the
same subpoena is sought to be enforced. This new subsection allows a
Federal agency or officer to remove a pre-suit subpoena proceeding to
Federal court before any complaint is filed, and also effectively
allows a Federal officer who has been subpoenaed to wait until the
subpoena is sought to be enforced before seeking removal.
I thank Senator Sessions for working with me to clarify the House's
bipartisan bill. I also thank Representative Hank Johnson for working
with us to explain the purposes and intricacies of this procedural
issue.
Mr. DURBIN. I further ask the amendment which is at the desk be
agreed to, the bill, as amended, be read a third time, and the clerk
read a pay-go statement for the record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 4732) was agreed to, as follows:

On page 2, strike lines 8 through 18 and insert the
following:

United States Code, is amended--
(1) in subsection (a), in the matter preceding paragraph
(1)--
(A) by inserting ``that is'' after ``or criminal
prosecution'';
(B) by inserting ``and that is'' after ``in a State
court''; and
(C) by inserting ``or directed to'' after ``against''; and
(2) by adding at the end the following:
``(c) As used in subsection (a), 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. If removal is
sought for a proceeding described in the previous sentence,
and there is no other basis for removal, only that proceeding
may be removed to the district court.''.
On page 3, strike lines 4 through 19 and insert the
following:
``(g) 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
or sought to be enforced, the 30-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 30 days after receiving, through service,
notice of any such proceeding.''.

[[Page S8510]]

On page 3, strike line 23 and all that follows through page
4, line 6, and insert the following:

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 Senate Budget Committee, provided that such
statement has been submitted prior to the vote on passage.

The amendment was ordered to be engrossed and the bill read a third
time.
The bill (H.R. 5281), as amended, was read the third time.
The assistant legislative clerk read as follows:

Mr. Conrad: This is the Statement of Budgetary Effects of
PAYGO Legislation for H.R. 5281, as amended.

Total Budgetary Effects of H.R. 5281 for the 5-year
Statutory PAYGO Scorecard: $0.
Total Budgetary Effects of H.R. 5281 for the 10-year
Statutory PAYGO Scorecard: $0.

Also submitted for the Record as part of this statement is
a table prepared by the Congressional Budget Office, which
provides additional information on the budgetary effects of
this Act, as follows:

CBO ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS FOR H.R. 5281, THE REMOVAL CLARIFICATION ACT OF 2010, WITH AMENDMENTS (HEN10A39) PROVIDED TO CBO ON
DECEMBER 1, 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------------------------------------------------------------------------
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2011-2015 2011-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Net Increase or Decrease (-) in the Deficit

Statutory Pay-As-You-Go Impact.......... 0 0 0 0 0 0 0 0 0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Congressional Budget Office.
Note: H.R. 5281 would clarify when certain litigation is moved to federal courts. This legislation would increase the number of cases handled by the
federal courts; however, CBO estimates that it would have no significant effect on direct spending by the federal court system.

Mr. DURBIN. Further, I ask unanimous consent that the bill be passed,
the motion to reconsider be laid upon the table, with no intervening
action or debate, and any statements be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill (H.R. 5281), as amended, was read the third time and passed,
as follows:

H.R. 5281

Resolved, That the bill from the House of Representatives
(H.R. 5281) entitled ``An Act 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.'', do pass with the following amendments:

(1)On page 2, strike lines 8 through 18 and insert the
following:
United States Code, is amended--
(1) in subsection (a), in the matter preceding paragraph
(1)--
(A) by inserting ``that is'' after ``or criminal
prosecution'';
(B) by inserting ``and that is'' after ``in a State
court''; and
(C) by inserting ``or directed to'' after ``against''; and
(2) by adding at the end the following:
``(c) As used in subsection (a), 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. If removal is
sought for a proceeding described in the previous sentence,
and there is no other basis for removal, only that proceeding
may be removed to the district court.''.

(2)On page 3, strike lines 4 through 19 and insert the
following:
``(g) 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
or sought to be enforced, the 30-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 30 days after receiving, through service,
notice of any such proceeding.''.

(3)On page 3, strike line 23 and all that follows through
page 4, line 6, and insert the following:

SEC. 3. PAYGO COMPLIANCE.

____________________