```

[House Report 112-17]
[From the U.S. Government Publishing Office]

112th Congress                                             Rept. 112-17
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================

 
                   REMOVAL CLARIFICATION ACT OF 2011

                                _______
                                

 February 28, 2011.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

        Mr. Smith of Texas, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 368]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred 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, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Performance Goals and Objectives.................................     6
Advisory on Earmarks.............................................     6
Section-by-Section Analysis......................................     6
Changes in Existing Law Made by the Bill, as Reported............     7

                          Purpose and Summary

    H.R. 368 amends a Federal officer removal statute (28 
U.S.C. Sec. 1442) and a related remand statute (28 U.S.C. 
Sec. 1447) to ensure that any individual drawn into a State 
legal proceeding based on that individual's status as a Federal 
officer has the right to remove the proceeding to a U.S. 
district court for adjudication. The purpose of the removal 
statute, clarified by H.R. 368, is to ensure that State courts 
lack the authority to hold Federal officers criminally or 
civilly liable for acts performed in the execution of their 
duties. To suggest otherwise would potentially subject Federal 
officers to harassment, thereby compromising Federal Government 
operations. The bill responds to recent Federal court cases 
that reflect an inter- and intra-circuit split as to whether 
State ``pre-suit discovery'' laws qualify as civil actions or 
criminal prosecutions that are removable under Sec. 1442.

                Background and Need for the Legislation

                          LEGISLATIVE HISTORY

    The Judiciary Committee's Subcommittee on Courts and 
Competition Policy conducted a hearing on H.R. 5281 (the 
predecessor bill to H.R. 368) on May 25, 2010. The witness 
roster was comprised of two law professors, a representative of 
the U.S. Department of Justice, and the House General Counsel. 
All agreed with the purpose of H.R. 5281, while the law 
professors provided suggestions for amendatory language.
    The Subcommittee discharged H.R. 5281 on July 21, 2010, and 
six days later the full House passed the measure by voice vote 
under suspension of the Rules. A later attempt by the House and 
Senate to amend the bill with an unrelated immigration issue 
(the ``DREAM Act'') scuttled further consideration of H.R. 
5281. Representative Johnson of Georgia, sponsor of H.R. 5281, 
introduced a new version of the bill on December 21, 2010, 
incorporating clarifying amendments proffered by the Senate 
Judiciary Committee. The House passed the new bill, H.R. 6560, 
on December 22, 2010, by unanimous consent. The Senate 
adjourned shortly thereafter and did not act on the 
legislation. The text of H.R. 368 is identical to that of H.R. 
6560.

                          THE RELEVANT STATUTE

    Section 1442 of title 28 authorizes removal of civil 
actions or criminal cases brought in State courts against the 
following entities:

         LThe U.S. government, a U.S. agency, or a 
        Federal officer sued for any act under color of their 
        office or pursuant to a right derived from Congress to 
        apprehend or punish criminals or to collect revenue;

         La property holder whose title derives from a 
        Federal officer, where a civil cause of action or 
        criminal prosecution affects the validity of a Federal 
        law;

         LFederal judicial officers acting under color 
        of office or in the performance of their duties; and

         LMembers or Senators acting in the discharge 
        of their official duties.

              WHY THE STATUTE WAS WRITTEN AND HOW IT WORKS

    Testimony provided at the Subcommittee hearing on the 
subject reveals that the origins of Sec. 1442 may be traced 
back to 1815. The modern-day statute was written in the 1940s.
    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. 
Congress wrote the statute because it deems the right to remove 
under these conditions essential to the integrity and 
preeminence of the Federal Government within its realm of 
authority. Federal officers or agents, including Members of 
Congress, 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 constitutionally based statutory protection, 
Federal officers, including Members of Congress, could be 
subject to political harassment, and Federal operations 
generally would be needlessly hampered.
    The statute and supporting case law require Federal 
officers to assert a Federal defense, such as absolute or 
qualified immunity, as part of a successful motion to remove. 
Federal officers must also show that the State suits are based 
on acts undertaken pursuant to color of office; in other words, 
they must demonstrate a causal connection between the charged 
conduct and asserted official authority. Removal is allowed 
only when the acts of Federal defendants are essentially 
ordered or demanded by Federal authority, which also gives rise 
to Federal defenses required by the statute.

                        THE PROBLEM ILLUSTRATED

    House Rule II(8) authorizes the Office of the General 
Counsel, which provides legal assistance and representation to 
the House of Representatives and its Members. One of its 
counsel identified a recently-decided case involving a Texas 
State legal action taken against a Member of Congress (U.S. 
Representative Eddie Bernice Johnson of Texas) in which removal 
to Federal court was denied by a U.S. District Court and the 
U.S. Court of Appeals for the Fifth Circuit.
    On February 17, 2009, in a State district court for Dallas 
County, a third party had filed a motion to depose 
Representative Johnson pursuant to Texas Rule 202. Under Rule 
202, a plaintiff may request a pre-suit deposition to 
``perpetuate or obtain the person's own testimony or that of 
any other person for use in an anticipated suit; or . . . to 
investigate a potential claim or suit.''
    In response to this action, Representative Johnson removed 
the case to Federal court pursuant to 28 U.S.C. Sec. 1442 and 
moved to dismiss the petition on four substantive grounds, 
including immunity under the Federal Tort Claims Act.
    On April 7, 2009, while the motion to dismiss was still 
pending and without responding to it, the third party moved to 
remand the case to State court under 28 USC Sec. 1447. The next 
day the Federal court granted the remand motion even though 
Representative Johnson had not filed her opposition. A motion 
to stay the remand order was rejected, and the case was 
appealed to the U.S. Court of Appeals for the Fifth Circuit.
    The Fifth Circuit dismissed the appeal, ruling that a Texas 
Rule 202 proceeding is not a ``civil cause of action'' under 28 
USC Sec. 1442 because ``it asserts no claim upon which relief 
can be granted and instead seeks an order for a deposition that 
may or may not result in the filing of an actual suit.'' And 
because the District Court lacked subject matter jurisdiction 
in the case (i.e., over a ``civil action'' or a ``cause of 
action''), the Fifth Circuit reasoned they could not assert 
jurisdiction to review the corresponding remand order.
    Representative Johnson has since appealed the case back to 
the Fifth Circuit under color of a mandamus petition.
    The House General Counsel and the other Subcommittee 
witnesses noted that Federal courts have applied Sec. 1442 
inconsistently in recent years; the matter involving Rep. 
Johnson is just the most recent high-profile case that 
illustrates the problem. In fact, at the Subcommittee hearing 
on the subject, the General Counsel emphasized that case law 
interpreting the removal statute is not just split among the 
circuits but within them as well.
    To summarize, the problem occurs when a plaintiff who 
contemplates suit against a Federal officer petitions for 
discovery without actually filing suit in State court. An 
increasing number of Federal courts maintain this conduct just 
anticipates a suit; it is not a ``cause of action'' as 
contemplated by the Federal removal statute, 28 USC Sec. 1442.
    The problem is compounded because the separate Federal 
remand statute, 28 USC Sec. 1447, 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.'' Remand orders under Sec. 1447 are 
reviewable if the suit involves civil rights--it has no 
application to suits involving Federal officers and Sec. 1442. 
This restriction means remanded cases brought against Federal 
officers under these conditions cannot find their way back to 
Federal court.
    Given that 47 states have enacted pre-civil suit discovery 
statutes, the General Counsel's Office recommends that the 
relevant portions of Sec. Sec. 1442 and 1447 be amended to take 
into account the operation of these State pre-civil suit 
discovery statutes.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
368.

                        Committee Consideration

    On January 26, 2011, the Committee met in open session and 
ordered the bill H.R. 368 favorably reported without amendment, 
by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 368.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 368, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, February 3, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 368, the ``Removal 
Clarification Act of 2011.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 368--Removal Clarification Act of 2011.
    H.R. 368 would clarify when Federal employees can transfer 
their case from a state court to a Federal district court. 
Under current law, Federal employees can transfer their cases 
to Federal court or seek clarification from a Federal court on 
the degree to which they must comply with a state-issued 
subpoena; however, courts have applied different procedures 
based on different interpretations of current law.
    Based on information from the Administrative Office of the 
U.S. Courts, CBO estimates that implementing H.R. 368 would 
have no significant budgetary impact. Enacting H.R. 368 would 
not affect direct spending or revenues; therefore, pay-as-you-
go procedures do not apply.
    H.R. 368 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of State, local, or tribal 
governments.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
368 clarifies that the terms ``civil action'' and ``criminal 
prosecution'' include any proceeding, such as a subpoena for 
documents or testimony, under the Federal officer removal 
statute (28 U.S.C. Sec. 1442). This allows any Federal officer 
subpoenaed pursuant to a State pre-suit discovery statute to 
remove the civil action or criminal prosecution to U.S. 
district court under 28 U.S.C. Sec. 1442.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 368 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Removal Clarification Act of 2011.''
    Sec. 2. Removal of Certain Litigation to Federal Courts. 
Section 2(a) of H.R. 368 amends 28 U.S.C. Sec. 1442 by 
specifying that ``civil action'' and ``criminal prosecution'' 
include ``any proceeding in which a judicial order, including a 
subpoena for testimony or documents, is sought or issued.'' The 
bill clarifies that a civil action ``commenced'' in State court 
includes those brought ``against'' a Federal officer (which 
covers suits) as well as those ``directed to'' a Federal 
officer (which presumably covers discovery proceedings). 
Finally, Section 2(a) stipulates that if a case combines State 
subject matter with an ancillary Federal issue, only the 
Federal portion will be removable.
    Section 2(b) rewrites Sec. 1442 by permitting removal by 
Federal officers ``in an official or individual capacity, for 
or relating to any act under color'' of their office. This is 
intended to broaden the universe of acts that enable Federal 
officers to remove to Federal court.
    In addition, a reference to Federal officers who are 
``sued'' under the statute is also struck in the same 
subsection to deemphasize the current need for a suit to be 
brought in advance of a motion to remove.
    Section 2 (c) preserves the institutional practice of how 
the Department of Justice (DoJ) responds to subpoenas. 28 USC 
Sec. 1446 prescribes the procedures for Federal removal. Under 
the statute, the defendant in a civil action must request 
removal within 30 days following receipt of the complaint. In a 
criminal case, the request must come within 30 days of 
arraignment or at any time before trial, whichever is earlier. 
DoJ helped the Committee to draft Section 2(c) because it wants 
to maintain the ability to ``retrigger'' the 30-day period for 
removal cases that involve enforcement of subpoena requests. 
The great majority of requests only seek testimony or 
documents; these are typically frivolous, and are ignored. But 
DoJ cannot ignore a motion to enforce such a request. Section 
2(c) therefore maintains the current and longstanding DoJ 
practice of resetting the 30-day removal clock for cases that 
involve the enforcement of a subpoena.
    Section 2(d) amends Sec. 1447 by permitting judicial review 
of Sec. 1442 cases that are remanded, just as they are with 
civil rights cases.
    Sec. 3. PAYGO Compliance. Section 3 contains a PAYGO 
reference to a statement submitted by the House Budget 
Committee Chairman in 2010 regarding H.R. 5281, one of the 
legislative predecessors to H.R. 368 from the 111th Congress. 
The statement was included in the July 27, 2010, Congressional 
Record, which indicates the bill ``would have no significant 
effect on direct spending by the Federal court system.''

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

TITLE 28, UNITED STATES CODE

           *       *       *       *       *       *       *

PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *

CHAPTER 89--DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS

           *       *       *       *       *       *       *

Sec. 1442. Federal officers or agencies sued or prosecuted

  (a) A civil action or criminal prosecution that is commenced 
in a State court and that is against or directed to any of the 
following may be removed by them to the district court of the 
United States for the district and division embracing the place 
wherein it is pending:
          (1) The United States or any agency thereof or any 
        officer (or any person acting under that officer) of 
        the United States or of any agency thereof, [sued]   in 
        an official or individual [capacity for] capacity, for 
        or relating to any act under color of such office or on 
        account of any right, title or authority claimed under 
        any Act of Congress for the apprehension or punishment 
        of criminals or the collection of the revenue.

           *       *       *       *       *       *       *

          (3) Any officer of the courts of the United States, 
        for or relating to any act under color of office or in 
        the performance of his duties;
          (4) Any officer of either House of Congress, for or 
        relating to any act in the discharge of his official 
        duty under an order of such House.

           *       *       *       *       *       *       *

  (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.

           *       *       *       *       *       *       *

Sec. 1446. Procedure for removal

  (a) * * *

           *       *       *       *       *       *       *

  (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.

Sec. 1447. Procedure after removal generally

  (a) * * *

           *       *       *       *       *       *       *

  (d) An order remanding a case to the State court from which 
it was removed is not reviewable on appeal or otherwise, except 
that an order remanding a case to the State court from which it 
was removed pursuant to section 1442 or 1443 of this title 
shall be reviewable by appeal or otherwise.

           *       *       *       *       *       *       *

                                  

```