[Congressional Record Volume 157, Number 28 (Monday, February 28, 2011)]
[House]
[Pages H1371-H1372]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
REMOVAL CLARIFICATION ACT OF 2011
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I move to suspend
the rules and pass the bill (H.R. 368) 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. 368
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
2011''.
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''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
California (Mr. Daniel E. Lungren) and the gentleman from Georgia (Mr.
Johnson) each will control 20 minutes.
The Chair recognizes the gentleman from California.
General Leave
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I ask unanimous
consent that all Members may have 5 legislative days within which to
revise and extend their remarks and to include extraneous materials on
H.R. 368, currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. DANIEL E. LUNGREN of California. I yield myself such time as I
may consume.
Mr. Speaker, the Removal Clarification Act of 2011, sponsored by the
gentleman from Georgia (Mr. Johnson), primarily amends section 1442 of
title 28 of the U.S. Code. This is a statute that allows Federal
officers, under limited conditions, to remove cases filed against them
in State court to U.S. District Court for disposition.
The purpose of section 1442 is to deny State courts the power to hold
Federal officers criminally or civilly liable for acts allegedly
performed in the execution of their Federal duties. This does not mean
Federal officers can break the law; rather, it just means that these
cases are transferred to U.S. District Court for consideration.
Congress wrote the statute because it deems the right to remove under
these conditions essential to the preeminence of the Federal Government
on those matters entrusted to it under the Constitution. Federal
officers or agents, even Members of Congress, should not be forced to
answer in a State forum for conduct asserted in the performance of
Federal duties.
The Supreme Court weighed in on this matter long ago. As the Court
explained in the case of Willingham v. Morgan, the Federal Government
can only act through its officers and agents, and they must act within
the States. If, when acting and within the scope of their authority,
those officers can be arrested and brought to trial in a State court
for an alleged offense against the law of the State, yet warranted by
the Federal authority they possess; and if the general government is
powerless to interfere at once for their protection, the operations of
the general government may at any time be arrested at the will of one
of its members.
{time} 1430
District courts have inconsistently interpreted the statute. Most
recently, in March, 2010, the Court of Appeals for the Fifth Circuit
upheld a district court ruling in Texas that the Federal removal
statute does not apply to a Texas law involving pre-suit discovery.
Because 46 other States have similar laws, the House General
Counsel's Office is concerned that more Federal courts will adopt this
logic. The problem occurs when a plaintiff who contemplates suit
against a Federal officer petitions for discovery without actually
filing suit in State court. Many Federal courts now assert that this
conduct only anticipates a suit; it is, therefore, not a ``cause of
action'' as contemplated by the Federal removal statute.
The problem is compounded because of a separate Federal statute,
section 1447 of title 28. Therein it requires U.S. district courts to
remand 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 under section 1447 is limited and
has no application to suits involving Federal officers and section
1442. So this means remanded cases brought against Federal officers
under these conditions cannot find their way back to Federal court, a
result that conflicts with the
[[Page H1372]]
history of the Federal removal and remand statutes.
While we passed a predecessor bill last July, the other body
developed minor amendments to clarify the text. These changes were
vetted with House Judiciary and we endorse them. The revisions improve
the bill in two ways. First, the new language stipulates that only
Federal issues are removable to Federal court. And second, the text
provides that a 30-day removal ``clock'' is triggered either by a
request for testimony or documents, or an order enforcing such a
request.
In addition, the floor version strikes section 3 of H.R. 368. This is
superfluous language that references a favorable CBO score inserted in
the Congressional Record last year in advance of our consideration of
the predecessor bill. Section 3 isn't needed because we have an updated
CBO score--also favorable--that applies to this year's bill.
In closing, I would like to thank Congressman Johnson for his hard
work on this project, and I would urge my colleagues to support H.R.
368.
Mr. Speaker, I reserve the balance of my time.
Mr. JOHNSON of Georgia. I thank the gentleman from California, and I
yield myself such time as I may consume.
Mr. Speaker, H.R. 368, the Removal Clarification Act of 2011, will
enable Federal officials to remove cases to Federal court in accordance
with the spirit and intent of the Federal officer removal statute, 28
U.S.C. 1442(a). This is a noncontroversial, bipartisan bill. In the
111th Congress, a nearly identical version passed the House under a
suspension of the rules and passed the Senate with an amendment by
unanimous consent.
Under the Federal officer removal statute, a Federal officer should
be able to remove a case from State court to Federal court when it
involves the Federal officer's exercise of his or her official
responsibilities. The purpose underlying the Federal officer removal
statute is to prevent State litigants from interfering with the Federal
Government's operations. There is, however, some ambiguity as to
whether the Federal officer removal statute applies to State pre-suit
discovery procedures. More than 40 States have such procedures, which
require individuals to be deposed or respond to discovery requests even
when a civil action has not yet been filed. This means that Federal
officials can be forced to litigate in State court, undermining the
purpose and intent of the Federal officer removal statute.
Courts are split on whether the removal statute applies to pre-suit
discovery. Some courts have found that Federal officers cannot remove a
proceeding to Federal court when these pre-suit discovery motions are
at issue while others have found that such proceedings could be
removed. This bill will clarify that Federal officers should be able to
remove a proceeding to Federal court any time a legal demand is made
for a Federal official's testimony or documents if the officer's
exercise of his or her official responsibilities was at issue.
The legislation will also allow a Federal officer to appeal a
district court's decision to remand the matter back to the State court,
pursuant to 28 U.S.C. 1447. This bill will not result in the removal of
the entire State case when a Federal officer is served with a discovery
request when the only hook is that a Federal officer has been served
with such a discovery request. Rather, the bill we consider today makes
clear that ``if there is no other basis for removal, only that
discovery proceeding may be removed to the district court.''
Finally, the bill makes clear that the timing requirement under 28
U.S.C. 1446 will not be changed, restating the 30-day requirement for
removing the case when the judicial order is sought as well as when the
judicial order is enforced.
In closing, I would like to thank Chairman Smith and Ranking Member
Conyers for working with me on this bill, and I urge my colleagues to
support this important bipartisan piece of legislation.
Mr. Speaker, I yield back the balance of my time.
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, once again I would
like to thank the gentleman from Georgia for bringing this bill to the
committee and to the floor. I urge my colleagues to support this bill.
Ms. JACKSON LEE of Texas. Mr. Speaker, I rise today in support of the
amendment to H.R. 368, ``The Removal Clarification Act of 2011.''
``The Removal Clarification Act of 2011'' clarifies when a case
involving a federal official can be removed from a state court into a
federal court. It states that a federal official can remove cases to
federal court in accordance with the spirit and intent of the federal
officer removal statute. It is also makes clear that the federal
officer removal statute applies to all federal officials, including
officials of the legislative and executive branch of the Federal
government.
The purpose of the law is to take from state courts the indefeasible
power to hold a federal officer or agent criminally or civilly liable
for an act allegedly performed in the execution of their federal
duties. This does not mean federal officers can break the law; it just
means that these cases are transferred to U.S. district court for
consideration. Federal officers or agents, including congressmen,
should not be forced to answer for conduct asserted within their
federal duties in a state forum that invites local interests or
prejudice to color outcomes. In the absence of this constitutional
protection, federal officers, including congressmen and women, would be
subject to political harassment and federal operations generally would
be needlessly hampered.
H.R. 368, introduced by my colleague Rep. Hank Johnson of Georgia, is
a non-controversial, bipartisan bill that was passed by the House and
passed in the Senate with an amendment at the end if the 111th
Congress. Just about a month ago, we considered this bill in the House
Judiciary Committee, and it received support from my colleagues on both
sides of the aisle.
Currently under 28 U.S.C. 1442(a), federal officials are able to
remove a case out of state court and into federal court. However under
state per-suit discovery laws, federal officials may be unable to
remove the case because a ``civil action'' has not yet been filed.
H.R 368 does not make any changes to the underlying removal law. It
simply clarifies 28 U.S.C. 1442(a) by including any proceeding to the
extent that in such a proceeding, a judicial order, including a
subpoena for testimony or documents, is sought or issued.
In my home state of Texas, there was a recent high profile case,
Price v. Johnson, involving a Texas state legal action taken against
Rep. Johnson, where the removal to federal court was denied by the U.S.
District Court. The Fifth Circuit illustrated the importance of better
clarity needed in 28 U.S.C. 1442(a). In the 111th Congress, the
Judiciary Committee's Subcommittee on Courts and Competition Policy
found that case law interpreting the removal statue is not just split
among the circuits, but within them as well. Therefore, H.R. 368 is a
much needed measure to once and for all settle the confusion amongst
rulings in the Federal District Courts.
Currently, there are 47 states that have enacted pre-civil suit
discovery statues; H.R. 368 would take into account the operation of
these state pre-civil suit discovery statues and provide clarification
to prevent more cases like Price v. Johnson from occurring.
H.R. 368 is essential to the integrity and preeminence of the federal
government within its realm of authority. This bill will also allow for
appeal to the federal court if the district court remands the matter.
back to the state court and that the federal defense is also still
needed for removal.
I ask my colleagues to please join me in supporting H.R. 368, ``the
Removal Clarification Act of 2011.''
Mr. DANIEL E. LUNGREN of California. 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 California (Mr. Daniel E. Lungren) that the House
suspend the rules and pass the bill, H.R. 368, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, on that I demand
the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
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