[Congressional Record Volume 156, Number 173 (Wednesday, December 22, 2010)]
[House]
[Pages H8976-H8977]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   REMOVAL CLARIFICATION ACT OF 2010

  Mr. JOHNSON of Georgia. Madam Speaker, I ask unanimous consent that 
the Committee on the Judiciary be discharged from further consideration 
of the bill (H.R. 6560) 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, and ask for its immediate consideration in the 
House.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Georgia?
  There was no objection.
  The text of the bill is as follows:

                               H. R. 6560

       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--
       (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.''.
       (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) 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.''.
       (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.

  Mr. JOHNSON of Georgia. Madam 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 the objection of the Federal officer.
  When a similar bill passed the House in July, I explained that the 
bill will not result in the removal of the entire case when a Federal 
officer is merely served with a discovery request. The version of the 
bill we consider today reflects refinements proposed by the

[[Page H8977]]

Senate to make that even clearer. The bill now states that ``[i]f there 
is no other basis for removal, only that proceeding may be removed to 
the district court.'' This makes very clear that the Federal court must 
consider the discovery request served on the Federal official as a 
separate proceeding from the underlying State court case.
  This bill continues to have strong bipartisan support, and I would 
like to thank Chairman Conyers, Ranking Member Smith, and the Ranking 
Member of the Courts Subcommittee, Howard Coble of North Carolina, for 
their work on this bill. I would also like to thank Courts Subcommittee 
counsel Liz Stein for all her tremendous work on this bill over several 
months.
  I urge my colleagues to support this important legislation.
  The bill was ordered to be engrossed and read a third time, was read 
the third time, and passed, and a motion to reconsider was laid on the 
table.

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