[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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