99–006 

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. 

§ 1442) and a related remand statute (28 U.S.C. § 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 


srobinson on DSKHWCL6B1PROD with HEARING
2 

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 § 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: 

• The 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; 

• a 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; 

• Federal judicial officers acting under color of office or in the 

performance of their duties; and 

• Members 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 § 1442 may be traced back to 1815. The 

modern-day statute was written in the 1940s. 


srobinson on DSKHWCL6B1PROD with HEARING
3 

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. § 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 § 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 § 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 


srobinson on DSKHWCL6B1PROD with HEARING
4 

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 § 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 § 1442. 

The problem is compounded because the separate Federal remand statute, 28 USC § 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 § 1447 are reviewable if the suit involves civil rights—it has no application to suits involving Federal 

officers and § 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 §§ 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 RepVerDate Mar 15 2010 20:11 Feb 28, 2011 Jkt 099006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR017P1.XXX HR017P1

srobinson on DSKHWCL6B1PROD with HEARING
5 

resentatives, 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. 


srobinson on DSKHWCL6B1PROD with HEARING
6 

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. § 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. § 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. § 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 § 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 § 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 


srobinson on DSKHWCL6B1PROD with HEARING
7 

of resetting the 30-day removal clock for cases that involve the enforcement of a subpoena. 

Section 2(d) amends § 1447 by permitting judicial review of 

§ 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 

* * * * * * * 

§ 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, øsued¿ in an official or individual øcapacity 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. 

* * * * * * * 


srobinson on DSKHWCL6B1PROD with HEARING
8 

(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. 

* * * * * * * 

§ 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. 

§ 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. 

* * * * * * * 

Æ 


srobinson on DSKHWCL6B1PROD with HEARING