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REMOVAL CLARIFICATION ACT OF 2010 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS AND 

COMPETITION POLICY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

ON

H.R. 5281 

MAY 25, 2010 

Serial No. 111–128 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COURTS AND COMPETITION POLICY

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia, Chairman 

JOHN CONYERS, JR., Michigan 

RICK BOUCHER, Virginia 

CHARLES A. GONZALEZ, Texas 

SHEILA JACKSON LEE, Texas 

MELVIN L. WATT, North Carolina 

MIKE QUIGLEY, Illinois 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

HOWARD COBLE, North Carolina 

JASON CHAFFETZ, Utah 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

BOB GOODLATTE, Virginia 

DARRELL ISSA, California 

GREGG HARPER, Mississippi 

CHRISTAL SHEPPARD, Chief Counsel 

BLAINE MERRITT, Minority Counsel 

(III) 

C O N T E N T S 

MAY 25, 2010 

Page 

THE BILL 

H.R. 5281, the ‘‘Removal Clarification Act of 2010’’ ............................................. 3 

OPENING STATEMENTS 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Chairman, Subcommittee on Courts and 

Competition Policy ............................................................................................... 1 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Courts and 

Competition Policy ............................................................................................... 5 

WITNESSES 

Ms. Beth Brinkmann, Deputy Assistant Attorney General, Civil Division, 

U.S. Department of Justice, Washington, DC 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

Mr. Irvin B. Nathan, General Counsel, Office of the General Counsel, U.S. 

House of Representatives, Washington, DC 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 14 

Mr. Lonny Hoffman, George Butler Research Professor of Law, University 

of Houston Law Center, Houston, TX 

Oral Testimony ..................................................................................................... 30 

Prepared Statement ............................................................................................. 32 

Arthur D. Hellman, Professor of Law, University of Pittsburgh School of 

Law, Pittsburgh, PA 

Oral Testimony ..................................................................................................... 54 

Prepared Statement ............................................................................................. 57 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Howard Coble, a Representative in 

Congress from the State of North Carolina, and Ranking Member, Subcommittee on Courts and Competition Policy .................................................... 85 

(1) 

REMOVAL CLARIFICATION ACT OF 2010 

TUESDAY, MAY 25, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS AND

COMPETITION POLICY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:04 p.m., in room 

2141, Rayburn House Office Building, the Honorable Henry C. 

‘‘Hank’’ Johnson, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Johnson, Boucher, Watt, Polis, Coble, 

Chaffetz, Goodlatte, Issa, and Harper. 

Staff Present: (Majority) Eric Garduno, Counsel; Elisabeth Stein, 

Counsel; Rosalind Jackson, Professional Staff Member; (Minority) 

Blaine Merritt, Counsel; and Tim Cook, Staff Assistant. 

Mr. JOHNSON. This hearing of this Committee on the Judiciary, 

Subcommittee on Courts and Competition policy will now come to 

order. Without objection, the Chair will be authorized to declare a 

recess of the hearing. 

Before we begin, I will welcome Representative Polis when he 

gets here, if he arrives. 

I will now recognize myself for a short statement. I am pleased 

to hold a hearing today on my bill, H.R. 5281, the ‘‘Removal Clarification Act of 2010.’’ 

This bill will ensure that Federal officers, including officials from 

all three branches of government are able to properly remove to 

Federal court when sued, based on actions undertaken in their official capacity. 

This is a bipartisan bill and I was pleased that Chairman Conyers, the Ranking Member of the full Judiciary Committee, Representative Smith, and the Ranking Member of this Subcommittee, 

Representative Coble, all joined as original cosponsors. 

The purpose of the Federal officer removal statute is to ensure 

that Federal officials can remove to a Federal forum so that the 

Federal Government will be free from interference with its operations. However, over 40 States have passed pre-suit discovery proceedings where individuals may be deposed and/or required to 

produce documents, despite the fact that a civil action has not yet 

commenced. These pre-suit discovery procedures have muddied the 

waters of the Federal removal statute as our Federal courts have 

split on whether the removal statute applies to such pre-suit discovery. Some courts apply the removal statute to pre-suit actions. 

Other courts don’t and, instead, have held that pre-suit actions are 

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not covered by the removal statute because there is not yet a civil 

action under 1442. 

Furthermore, some of these courts require a Federal official or 

agency to be held in contempt before the matter can be removed. 

H.R. 5281 will make clear that section 1442 should apply anytime a legal demand is made on a Federal officer for any act done 

under their official capacity. It will also provide that there can be 

an appeal to the Federal circuit court if the Federal district court 

rejects a removal petition under 1442 and remands the matter back 

to the State court. 

In short, H.R. 5281 will enable Federal officials to remove cases 

to Federal court in accordance with the spirit and the intent of the 

Federal officer removal statute. 

I want to stress today that we are not changing the underlying 

removal law. Removal still must be predicated on the availability 

of a Federal defense. Further, only the part of the proceeding involving the Federal official will be removed. To the extent that 

there is any ambiguity in this legislation on those points or any 

other, I look forward to hearing the testimony of today’s witnesses 

as to how to resolve such matters. 

And at this point, I would like to take the opportunity to welcome Representative Jared Polis to the Subcommittee on Courts 

and Competition Policy. Representative Polis is not only a Member 

of Congress, but he is also a successful innovator and entrepreneur. 

He has founded several successful Internet companies, including 

proflowers.com and bluemountain.com. 

In 2008 Representative Polis was elected to the 111th Congress, 

representing Colorado’s Second Congressional District. He currently also serves on the House Education and Labor Committee 

and the Rules Committee. He is a charter member and vice chair 

of the Sustainable Energy and Environmental Coalition, the chair 

of the Immigration Task Force of the Progressive Caucus, and a 

member of the Democratic Steering and Policy Committee. I welcome Representative Polis to this Subcommittee. 

[The bill, H.R. 5281, follows:] 

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Mr. JOHNSON. I now recognize my colleague, Mr. Coble, the distinguished Ranking Member of this Subcommittee, for his opening 

remarks. 

Mr. COBLE. Thank you, Mr. Chairman. I join you in welcoming 

Representative Polis as a Member of the Judiciary Committee. I 

appreciate, Mr. Chairman, your calling this legislative hearing. 

And I appreciate furthermore the outstanding panel who will testify before us. 

The bill, H.R. 5281, addresses an obscure but important issue 

that touches on federalism and the balance relationship between 

the Federal Government and the individual States. The Removal 

Clarification Act of 2010 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 courts for disposition. 

The purpose of section 1442 is to deny State courts the power to 

hold a Federal officer criminally or civilly liable for an act allegedly 

performed in the execution of his or her Federal duties. This does 

not mean that Federal officers can break or violate the law; it just 

simply means that these cases are transferred to a 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 under our Constitution. Federal officers 

or agents, including Congressmen, shouldn’t be forced to answer in 

a State forum for conduct asserted in performance of Federal duties. 

It is my understanding, Mr. Chairman, that U.S. district courts 

have inconsistently interpreted the statute. Most recently in 

March, the Fifth Circuit ruled that the Federal removal statute did 

not apply to a Texas State law involving pre-suit discovery. Since 

46 other States have similar laws, the House General Counsel’s Office is concerned that more Federal courts will adopt the Fifth Circuit’s logic. 

The problem occurs when a plaintiff who contemplates suit 

against a Federal officer petitions for discovery without actually filing suit in the State court. Technically, according to the Fifth Circuit, this conduct only anticipates a suit; it isn’t a cause of action 

as contemplated by the Federal removal statute. 

The problem is compounded, it seems to me, because a separate 

Federal statute, section 1447, requires U.S. district courts to remand any case back to State court if at any time before the final 

judgment it appears that the district court lacks matter of jurisdiction. Judicial review of a remand order under section 1447 is limited and has no application to suits involving Federal officers and 

section 1442. This means remanded cases brought against Federal 

officers under these conditions cannot find their way back to Federal court. 

In conclusion, Mr. Chairman, the result is at odds with the history of the Federal removal and remand statutes that we will examine today. That is why I am an original cosponsor, as you pointed out, of H.R. 5281. 

6 

I look forward to interacting with the witnesses this afternoon, 

and I intend to vote for the bill when we proceed to markup at the 

conclusion of the hearing. 

I yield back, Mr. Chairman. 

Mr. JOHNSON. I thank the gentleman for his statement. Without 

objection, other Members’ opening statements will be included in 

the record. 

I am now pleased to introduce the witnesses for today’s hearing. 

Our first witness will be Ms. Beth Brinkmann, Deputy Assistant 

Attorney General in the Civil Division for the Department of Justice. Ms. Brinkmann formerly practiced before the Supreme Court 

for approximately 15 years. During that time she was a partner at 

Morrison & Foerster and served as Assistant to the Solicitor General of the United States. And we welcome here today. 

Our second witness will be Mr. Irvin Nathan. Since November of 

2007, Mr. Nathan has been the general counsel for the U.S. House 

of Representatives. Prior to that, Mr. Nathan was a senior partner 

at Arnold & Porter. He is a Fellow of the American College of Trial 

Lawyers, a member of the American Law Institute, and a fellow of 

the American Bar Foundation. Welcome, Mr. Nathan. 

We also have Professor Hellman, Arthur Hellman. Professor 

Hellman is a professor of law at the University of Pittsburgh where 

his specialties includes civil procedure, constitutional law and the 

Federal courts. Throughout his career, Professor Hellman has authored a number of publications in these fields, including two case 

books. Professor Hellman has testified before the House and Senate 

Judiciary Committees many times on issues related to the Federal 

courts, and we welcome him here today. 

Our last witness will be Professor Lonny Hoffman. Professor 

Hoffman is the George Butler Research Professor of Law at the 

University of Houston Law Center where he is an expert on civil 

procedure. In 2009, he was elected to the American Law Institute 

and since 2005 he has served on the Supreme Court of Texas Rules 

Advisory committee. Professor Hoffman received his law degree 

from the University of Texas at Austin and a bachelor’s from Columbia University. We welcome you, Professor Hoffman. 

After each witness has presented his or her testimony, Subcommittee Members will be permitted to ask questions subject to 

the 5-minute limit. 

Mr. NATHAN. Ms. Brinkmann, please proceed with your testimony. 

TESTIMONY OF BETH BRINKMANN, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF 

JUSTICE, WASHINGTON, DC 

Ms. BRINKMANN. Good afternoon, Chairman Johnson, Ranking 

Member Coble and Members of the Subcommittee. I am pleased to 

appear before the Subcommittee today to present the views of the 

Department of Justice. 

Mr. WATT. Would you pull your mike a little bit closer, please? 

Mr. JOHNSON. Ma’am, would you pull your mike up a little bit? 

And it is on; is that correct? 

Ms. BRINKMANN. As I was saying, I am pleased to appear before 

the Subcommittee today to present the views of the Department of 

7 

Justice on the Removal Clarification Act of 2010. The Department 

of Justice believes the proposed amendments to the removal statute 

would improve the Department’s ability to represent Federal officers and agencies. 

The Department represents executive branch’s officers and agencies whose public duties and interests often become at issue in litigation in State court. The removal statute gives them, as well as 

officers of the judicial branch and Members of Congress, the important right to be heard in a Federal forum. 

The amendment to 28 U.S.C. section 1442 would clarify one aspect of the statute concerning removal of a matter when a litigant 

seeks a subpoena in State court against a Federal official. A Federal official facing a State court subpoena has a right to have a 

Federal court determine the extent to which the Federal official 

must comply with the subpoena. 

The proposed amendment would eliminate uncertainty in law. It 

would allow Federal officials to seek a Federal forum at an early 

stage of their involvement in such proceedings. It would protect the 

Federal official’s ability to have a Federal court determine under 

Federal law whether compliance with the State court subpoena is 

required. 

In order to effect the purpose of this amendment we believe that 

it would be important also to clarify the deadline by which removal 

must be sought, and we would be pleased to work with the Subcommittee on that issue. 

The Department likewise believed that the proposed amendment 

to the section of the removal statute that deals with appeals 28 

U.S.C. Section 1447 would improve the Department’s representation of Federal officials. Under current law, if a Federal district 

court decides to send back to State court a case involving a Federal 

official, the Federal Government has no right to repeal the remand 

order and must instead participate in the State court litigation. 

The proposed legislation would give Federal officials the right to 

appeal a district court judge’s remand order and afford the court 

of appeals an opportunity to correct any legal error. That would 

allow cases that properly belong in Federal court to remain there, 

rather than being erroneously litigated in State court. Allowing 

Federal officials to repeal remand orders would be fully consistent 

with the existing exceptions to the no-appeal rule, where there is 

a similarly strong Federal interest in a Federal forum. 

Although the appeal right is important, as a practical matter we 

expect the change in existing law to be limited in scope. That is because the number of cases that the Federal Government seeks to 

remove from State court each year is small. We expect the occasions on which the Department would need to appeal a remand 

order are likely to continue to be few. 

In closing, we would be pleased to work with you as the legislation moves forward. And I would be pleased to address any questions that you may have. 

Mr. JOHNSON. Thank you, Ms. Brinkmann. 

[The prepared statement of Ms. Brinkmann follows:] 

8 

PREPARED STATEMENT OF BETH BRINKMANN


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Mr. JOHNSON. Now we will hear from Mr. Nathan. 

TESTIMONY OF IRVIN B. NATHAN, GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, DC 

Mr. NATHAN. Thank you, Mr. Chairman, for inviting me to testify 

concerning H.R. 5281, the ‘‘Removal Clarification Act of 2010.’’ As 

you know—— 

Mr. JOHNSON. Sir, would you please put that mike on also? 


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Mr. NATHAN. The green light is on. 

Mr. JOHNSON. Green light? It should be a red light. 

Mr. NATHAN. As you know, I have the privilege of serving as the 

General Counsel of the House. The function of our offices includes 

providing legal representation to Members, officers, and staff of the 

House when they are sued or when their testimony is sought to be 

compelled in connection with matters relating to their official responsibilities. 

Our office has had considerable experience in matters in which 

private litigants have attempted to use the processes of State 

courts to compel the testimony of Members and their staffs. It is 

based on the experience of our office that I provide my testimony 

in support of this legislation. Like the Department of Justice, our 

office strongly supports the bill’s enactment. 

The statement of the Chairman accurately set forth the problem 

and our understanding of the effect of this legislation, as did Mr. 

Coble’s statement, with one exception which makes the problem 

even greater than he described, because it was not the Fifth Circuit 

as a court of appeals that ruled that these pre-suit discovery is not 

a civil action. There were two conflicting courts in the district court 

in the Fifth Circuit that came to opposite conclusions. And the 

Fifth Circuit refused to hear an appeal on the subject to rule on 

the question, which underscores why we believe that there needs 

to be this clarifying legislation. 

The bill would make certain that necessary clarifications concerning the Federal officer removal statute. That statute is a longstanding law. Its origins go back to 1815 concerning where matters 

are brought in State courts against Federal officers, based on their 

actions as Federal officials, and they are transferred to the Federal 

court for resolution of that question. As noted, the law applies to 

officials of all three branches of the Federal Government, and the 

clarification in the bill seeks to ensure uniform treatment throughout the country whenever the processes of State courts are invoked 

against Federal officers. 

Our experience revealed that this bill is a needed clarification of 

the removal statute to ensure that removal to Federal court will be 

available to Federal officers where there is an issue of Federal law 

presented and their Federal duties are implicated, regardless of the 

procedures that are used in different State courts to obtain jurisdiction. 

As detailed in my written testimony, there are unintended ambiguities in the current law that have led to disparate treatment by 

courts of virtually identical cases, even within the same Federal 

circuit. 

In our view the bill, if enacted, would serve the public interest 

by making these clarifications in the law. 

First, the bill amends 1442 to make clear that the statute, where 

its terms are satisfied, applies not just to State judicial proceedings 

in which the officer is a defendant or a party, but to all proceedings 

in which a legal demand is made in State court for the officer’s testimony or documents. 

Based on the disparate treatment that we have received in Federal courts, the current law is not sufficiently clear that ancillary 

proceedings against Federal officers, such as pre-suit discovery peVerDate Aug 31 2005 11:24 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\052510\56640.000 HJUD1 PsN: 56640
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titions or subpoena enforcement actions, are civil actions for purposes of removal. As noted more than 40 states have procedures for 

pre-suit discovery and their standards vary. When a Federal official is subject to them, the official should have the matter decided 

by a Federal court. 

The second amendment relates to the appeal and says that if a 

Federal court rejects a removal petition in the case of a Federal officer and remands to the state court there can be an appeal to the 

Federal court of appeals. As matters presently stand, appellate review of a district court remand to the State courts of an action 

against a Federal official is generally not available. That means 

that over 600 different Federal district judges have the final 

unreviewable say over these issues. 

In light of the clarifying amendments that we seek to this statute, as in the bill, the provision regarding appeal will only apply 

in a very narrow set of cases, is unlikely to delay matters, and will 

tend to promote uniformed interpretation of the Federal officer removal statute. 

The bill appropriately leaves in place the current law and practices governing Federal officer removal in nearly all respects. The 

bill does not alter the standard for general removal for Federal officer removal under 1442. And it won’t change the widespread current practice in cases involving subpoenas, like a subpoena to a 

Federal official whereby only the ancillary proceedings involving 

the Federal officer is removed under section 1442, and the remainder of the case stays in State court. 

I could cite a score of cases in virtually every circuit where the 

subpoena enforcement proceeding is removed and the remainder 

stays in State court. That issue has been raised by two of the academic witnesses, and I certainly want to say that it is our understanding that this bill does not change that policy, and that the underlying civil action in State court would remain in State court. It 

is only the ancillary proceeding that involved enforcement of a subpoena, or, in the case of a pre-suit discovery petition, that would 

go and would be removed. And we look forward to working with the 

Subcommittee to clarify that and to make sure that that is understood in the statute and in the legislative history. 

Mr. JOHNSON. And if you will sum up, Mr. Nathan. 

Mr. NATHAN. Yes. Just in short, e bill simply clarifies the existing statute, and, through the proposed amendments, will help ensure that Federal officials will not be treated differently depending 

on where or by what procedure they are hailed in to State court. 

Thank you, Mr. Chairman. 

Mr. JOHNSON. Thank you, sir. 

[The prepared statement of Mr. Nathan follows:] 

14 

PREPARED STATEMENT OF IRVIN B. NATHAN


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Mr. JOHNSON. Now we will hear from Professor Hoffman. 

TESTIMONY OF LONNY HOFFMAN, GEORGE BUTLER RESEARCH PROFESSOR OF LAW, UNIVERSITY OF HOUSTON 

LAW CENTER, HOUSTON, TX 

Mr. HOFFMAN. Mr. Chairman—— 

Mr. JOHNSON. If you would. That microphone down there, I think 

it is a virus going around. 

Mr. HOFFMAN. Mr. Chairman and Members of the Committee, 

whatever its virtues, this bill could be significantly improved if 

more specific language were used to clarify its intended affects. 

There are a number of examples that can be cited, but in my brief 

time this afternoon I want to focus on one particular issue involving pre-suit discovery. This issue implicates a vital policy issue that 

is raised by the bill; and that is this: What would be the effect of 

allowing removal of a State pre-suit discovery request or order if 

there is no comparable right to such discovery under existing Federal law? The proposed legislation does not provide a clear answer 

to this question. 

In my judgment, the bill should expressly clarify that after removal, a Federal judge has authority to decide whether to allow the 

sought-after pre-suit discovery. 

To illustrate the problem plainly, consider this example. Someone 

who believes she was injured, but doesn’t have enough information 

to bring a suit, files a request to take pre-suit discovery in a State 

court from a Federal officer. She says she believes the Federal officer has information that would lead her to determine whether she 

has a viable claim against someone; perhaps against a Federal officer or perhaps against some other entity, a separate third party entirely. 

Now, assume that under State law she would be able to obtain 

the requested investigatory discovery; but under rule 27, the Federal pre-suit discovery rule, she could not. So what happens if the 

Federal officer removes this pursuant to 1442 to Federal court? 

Does it show up there dead on arrival, to be immediately dismissed? Or does the Federal judge somehow have the authority to 

decide whether to allow the pre-suit discovery to go forward? 

Again, the proposed legislation is silent on these vital questions. 

A court faced with these choice of law problems could reasonably 

find that the law implicitly authorizes the Federal judge to decide 

whether to grant the pre-suit discovery or not. But the difficulty is 

with the adverb. To say that a law implicitly allows a Federal 

judge to do something, leaves a great deal of room for doubt and 

for many different opinions as to the right answer. Put another 

way, the proposed legislation could be read alternatively as immunizing the Federal officer or agency from ever having to provide 

discovery prior to suit. 

That nicely frames the key problem: What reasonable policy justification would warrant granting blanket immunity in this context? 

In the Brown and Williamson case out of the D.C. circuit, which 

appears to be a model on which this proposed legislation is based, 

at least in part, when a subpoena was issued to Federal officers in 

connection with a pending State case, the court allowed the proVerDate Aug 31 2005 11:24 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\052510\56640.000 HJUD1 PsN: 56640
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ceedings to be removed and then proceeded, quite correctly, to decide whether a valid defense existed that would excuse the Federal 

officer’s compliance with the State order in that case. 

The same result should attend when the issue is pre-suit discovery. If a valid defense would trump, in whole or in part, the taking of such discovery, then that defense can and should be presented to the Federal judge to rule on. 

Moreover, if a court were to read the ambiguous language now 

in the bill as precluding a Federal judge from ever allowing presuit discovery when it is not authorized by rule 27, then section 

1442 would be unique. Congress has never before passed a law 

that, in allowing removal of a case to Federal court, had the simultaneous effect of terminating it. 

If the proposed legislation is clarified—Mr. Chairman, shall I 

continue? I am almost finished. 

Mr. JOHNSON. Yes. 

Mr. HOFFMAN. Mr. Chairman, if the proposed legislation is clarified to make clear that its purpose is only to allow Federal officers 

and agencies to be able to get into Federal court, as Mr. Coble was 

saying in his opening remarks, and then to allow the Federal judge 

to rule upon whether a Federal defense trumps, then I believe 1442 

will operate in the same manner as every other removal statute. 

It will change the forum, but not necessarily the final outcome of 

the case. 

Thus, and in conclusion, I believe the proposed legislation should 

expressly clarify that after removal, a Federal judge has authority 

to decide whether to allow the pre-suit discovery to go forward, 

subject of course to whatever Federal defenses may apply. Thank 

you. 

Mr. JOHNSON. Thank you Professor Hoffman. 

[The prepared statement of Mr. Hoffman follows:] 

32 

PREPARED STATEMENT OF LONNY HOFFMAN


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Mr. JOHNSON. And last but not least, we will hear from Professor 

Hellman. 

TESTIMONY OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, 

UNIVERSITY OF PITTSBURGH SCHOOL OF LAW, PITTSBURGH, PA 

Mr. HELLMAN. Thank you, Mr. Chairman. Is this microphone on? 


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Thank you, Mr. Chairman. As you have heard, H.R. 5281 deals 

with two aspects of the Federal officer removal statute: the kind of 

cases that can be reviewed and an appellate review of remand orders. 

I will start with the latter. I agree with the other witness that 

appellate review should be available when a district court remands 

a case that has been removed under section 1442. H.R. 5281 accomplishes this with a simple and straightforward fix, and I support 

that aspect of the bill wholeheartedly. 

Clarifying the kind of proceedings that can be removed is not 

such a simple task. And I will begin by outlining the reasons why 

this is so. When considering revisions to the Federal officer removal statute, it is only natural to look at the law from the perspective of the Federal officers and agencies who will be invoking 

it. But there is another perspective that is equally important; that 

of private citizens, state officials, and other parties who as litigants 

in a State court proceeding suddenly and unwillingly find themselves transported into Federal court. 

Now, that is not all, because as you are aware, the Federal officers and agencies do not have to ask any court, State or Federal, 

for permission to remove. The moment that the removing party 

files a copy of the notice of removal with the State court, the case 

is removed; and it won’t return to the State court unless and until 

the district court issues an order of remand. 

That can impose substantial burdens on the other parties. And 

among other things, those parties are often represented by lawyers 

who are inexperienced in Federal practice and unfamiliar with the 

provisions of the judicial code that govern removal. 

Against that background it is particularly important that the removal statutes be drafted with the greatest possible clarity and directness. They should also be drafted in a way that serves Federal 

interests, without interfering unnecessarily with the course of litigation in the State court. 

I have some concerns about H.R. 5281 on both scores. The 

amended statute is not as clear and direct as it could be. In my 

written statement, I recalled attention to some particular concerns 

about how the amended statute would work. Professor Hoffman 

has raised some of those same concerns and others as well. I believe that those should be dealt with in the legislation itself and 

not left to be worked out by litigation in the future. 

I also have a concern that H.R. 5281 in its present form does go 

somewhat further than it needs to in defining the kind of State 

court proceedings that can be removed. And in particular, the bill 

appears to allow removal of the entire civil action or criminal prosecution, even when the Federal officer is not a party and only one 

segment of the proceeding concerns any Federal interests. 

Now, we may have some disagreement here about whether the 

bill ought to be read that way, but we do seem to agree that only 

the Federal aspect ought to be removable. 

So how should that be dealt with? In my statement I suggest a 

couple of approaches. One would be to authorize a separate civil action in Federal court, an action for a protective order. The second 

is to write the removal statute in such a way as to distinguish beVerDate Aug 31 2005 11:24 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\052510\56640.000 HJUD1 PsN: 56640
56 

tween stand-alone proceedings and ancillary or embedded or collateral proceedings. There are a number of terms for that. 

I have something of a preference for the separate proceeding in 

Federal court. I realize, though, that would be something of an innovation. And in my statement I have suggested some language for 

an approach that accomplishes the purpose within the removal 

framework. And basically, rather than trying to define civil action 

and criminal prosecution to include proceedings that do not fit easily into either of those categories, the legislation should directly define the proceedings, other than conventional civil actions and 

criminal prosecutions, that can be removed and it should distinguish between stand-alone proceedings like those in Price against 

Johnson, or embedded and ancillary proceedings like those in 

Stallworth. 

I would welcome the opportunity to work with the Subcommittee 

and its staff to fine-tune this important legislation. Thank you. 

Mr. JOHNSON. Thank you, Professor Hellman. 

[The prepared statement of Mr. Hellman follows:] 

57 

PREPARED STATEMENT OF ARTHUR D. HELLMAN


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Mr. JOHNSON. We do have votes. We have got about 10 minutes 

left before the time for voting closes, but I think in the interest of 

being expeditious, I will go ahead and ask my questions now. And 

when we return, we will proceed with the Ranking Member’s questions. 

My first question is for the panel. There is a clear circuit split 

on whether any judicial action including pre-suit discovery request, 

constitutes a, quote, civil action, for purposes of the Federal officer 

removal statute. What evidence is there in the legislative history 

of section 1442 supporting either interpretation? 

Mr. NATHAN. I will take that first, Your Honor—Mr. Chairman. 

Mr. JOHNSON. Your Honor is fine. 

Mr. NATHAN. I am expecting you will be going to the bench soon. 

The legislative history of 1948 of the Federal removal statute as 

a whole makes clear that when the Congress decided to use the 

word ‘‘civil action,’’ they were trying to condense all kinds of proceedings into a single word, single phrase, ‘‘civil action.’’ And the 

legislative history makes clear they were incorporating many different kinds of petitions and cause-of-action suits and proceedings 

under the words ‘‘civil action.’’ 

So it is our view that that legislative history from 1948 makes 

clear that the original intent of Congress in consolidating the Federal officers removal statute meant it to include all kinds of proceedings, including pre-suit discovery and subpoenas. And I think 

that the evidence of that is that within the Federal rules itself, 

there is the concept, again, of civil action; and in Federal rule 27, 

there is a possibility of pre-suit discovery in very limited circumstances. 

And so the contemplation was when they said civil action: They 

meant anything that starts the proceeding against a defendant for 

any kind of matter, whether it is for money, injunction, or even discovery. 

So I think that the 1948 legislation is pretty clear history that 

this is a clarification of what was intended by Congress and not a 

change from that. 

Mr. HOFFMAN. I am not sure I would read the history the same 

way. But maybe what I would say in direct answer to your question is that I think that the change to allow certain matters that 

are relating to Federal officers to come within the ambit of 1442 

under this definition of ‘‘civil actions’’ or ‘‘criminal proceedings,’’ 

that there is nothing inappropriate about that, and that what you 

are seeing with the courts, Mr. Johnson, is that they are struggling 

to try to say what is this animal. It isn’t a lawsuit, it isn’t what 

we normally think of as a civil action. And most of them have concluded that it is not. There actually are few that concluded that it 

is. 

And so for that change to take effect, for the Congress to enact 

a law that would simply deem these to be within the orbit of 1442, 

strikes me as both eminently defensible and wise. But, again the 

devil is in some of these important details that we raised here 

today. 

Mr. HELLMAN. I would just add that the pre-suit proceedings I 

think come very easily within a functional definition, and it is very 

striking that in Price against Johnson, the district court, although 

82 

rejecting the removal, said the petition in that case had all the indicia of a civil proceeding—a civil proceeding—it looked like a civil 

action. So I don’t think this legislation is a radical change at all; 

it is just clarifying what the law ought to be. 

Mr. JOHNSON. Thank you. 

Ms. Brinkmann, I want to thank you for DOJ’s support of the 

Removal Clarification Act. Can you tell us how pre-suit discovery 

has impacted Federal officials at the Department of Justice, and 

are there any suits against the Administration that are currently 

pending that passage of this bill will have an effect on? 

Ms. BRINKMANN. Certainly, Your Honor. There are a wide range 

of examples of Federal officers served with subpoenas because of 

their involvement, whether it is law enforcement investigations or 

other matters, that then find their way to State court. For example, 

officials at the IRS, the National Safety Transportation Board, the 

four services, Veterans Affairs, also law enforcement, FBI, DEA 

agents; some of the reported cases, for example, an official attorney 

in a Federal judiciary also I would point out. 

It is important here, in order to enforce the right that Congress 

intended to have the Federal courts decide these questions. 

And I wanted to mention one thing Professor Hoffman brought 

up. We don’t experience or envision having discovery relitigated in 

Federal court. Generally our experience is when there is a removal 

in a situation with a subpoena, the Federal court exercises derivative jurisdiction and looks to the question of sovereign immunity. 

Generally, in many instances, Federal officials and agencies would 

be immune from the subpoena because there hasn’t been a waiver 

of sovereign immunity. 

In addition to Federal court, then the next question would be— 

just as it would be in the State court—for the executive branch, 

there is often regulations that are called ‘‘touhy’’ regulations after 

the Supreme Court case that upheld the constitutionality of this 

type of provision. But there are regulations that set forth the scope 

and procedures to be followed when seeking information from an 

executive branch official. And the normal course would be the most 

common, when there are regulations like that. But the subpoena 

matter would be dismissed, and the appropriate action there is to 

bring a civil action, just reported in the Administrative Procedures 

Act. So I just wanted to clarify that aspect of our experience and 

how that normally plays out. 

Mr. JOHNSON. Thank you, Ms. Brinkmann. 

Mr. Nathan, the chief purpose of the removal statute is to prevent harassment of Federal officers. How broad would you define 

harassment in this context? And in your experience as General 

Counsel to the House of Representatives, are State court proceedings often used to harass Members of Congress? 

Mr. NATHAN. I don’t know about often, but it happens too many 

times to be justified. There are instances. The classic example of 

that is that a person comes into a Member’s office, perhaps district 

office, or even the office in D.C., causes some disturbance and is 

then prosecuted for disturbing the peace. And the defendant seeks 

to subpoena the Member to ask the Member questions about the 

Member’s policy positions which led to the protest in the first place. 

83 

It really has no bearing on the disturbance of the peace matter, 

and it is a way to either harass or at least to impose on the Member. And we have seen that on both sides of the aisle, on all kinds 

of issues, and in many State courts throughout the country. 

And in the two pre-suit discovery matters that were brought in 

the Fifth Circuit with differing results, I would say in both cases 

those were abusive efforts that were not really looking for the merits for potential lawsuits. 

In the one case, the potential of the claim was they wanted to 

see whether what the Congresswoman had said would justify a defamation action. In the first place, what the Congresswoman had 

said was already a matter of public record. It was on a recording 

that was available to the potential plaintiff. 

And in the second place, if a defamation suit had been brought, 

it would have been brought and removed to Federal court. And 

since under the Federal Torts Claims Act, under the procedures 

there, the United States Government would have been substituted. 

Sovereign immunity has not been waived for defamation actions, 

and the suit would have been dismissed. 

So there was really no real reason for the potential pre-suit discovery. This was done for some ulterior motive, maybe dealing with 

the particular Congresswoman or with a criminal investigation of 

the petitioner which was then underway. 

And similarly, in the case involving Senator Landrieu’s staff, the 

effort was made to circumvent an administrative proceeding which 

did not allow the discovery which was being sought. 

So there are a number of instances in which these matters have 

been abused, and I think it is appropriate that the Federal courts 

decide these questions of the discovery that is either going to be 

during the proceeding or preceding the proceeding. 

Mr. JOHNSON. Thank you, Mr. Nathan. We have four votes pending. It will take about 20 to 30 minutes for us to get back and during that time we will be in recess. 

[Recess.] 

Mr. JOHNSON. Thank you, ladies and gentlemen. We are back in 

session and we left off with me ending my questions, and so next 

we will hear from our Ranking Member, the distinguished Mr. 

Howard Coble. 

Mr. COBLE. Thank you, Mr. Chairman. I apologize to the panel. 

I had to be called to testify at another Judiciary Subcommittee 

hearing, and I apologize to you for that. But we have examined 

your questions—testimony. 

Mr. Nathan, how many section 1442 cases does your office deal 

with in an average year? 

Mr. NATHAN. I don’t really have a number at my fingertips, but 

I would say with respect—the majority of them are subpoena cases 

as opposed to recent discovery cases. 

Mr. COBLE. Is your mike on, Mr. Nathan? 

Mr. NATHAN. Ah, thank you. Sorry for that. I don’t really have 

the numbers in answer to your question. We can obviously check 

that out and provide it for the record; but it is a substantial number of cases in State courts that we have to seek removal for, both 

for lawsuits against Members and also for subpoenas for testimony. 

84 

Mr. COBLE. Did you sense any hostility or resentment for State 

courts and State bars over Federal removal? 

Mr. NATHAN. We have not seen any evidence of such hostility. In 

the first place, as I mentioned, we are only seeking removal. When 

a Member hasn’t been sued, we are only seeking removal of that 

part of the proceeding that relates to the subpoena for testimony 

or documents of the Member or the staff. 

And of course the Federal courts are greatly respected and fair 

to all the parties before them, so there is really no cause for the 

concern. And once the matter is over, the matters on the merits go 

back to the State court when the Member is not a party to the lawsuit. 

Mr. COBLE. I thank you, Mr. Nathan. 

Mr. Chairman, we received outstanding witness testimony for 

this hearing, and I am not averse to marking up the bill today, but 

I think we would do ourselves and the witnesses a disservice if we 

don’t take their testimony into account at some point. 

The witnesses, let me ask you, will you all be willing to work 

with our staffs on a possible manager’s amendment that could be 

taken up at the full Committee? I really believe we really need to 

address some of the issues, particularly that Professors Hellman 

and Hoffman have raised. 

Mr. NATHAN. Absolutely. We are willing to work, eager to work 

with the Committee, the Subcommittee, and the staff to improve 

this draft legislation. 

Mr. COBLE. I thank each of the witnesses. Mr. Chairman I yield 

back. 

Mr. JOHNSON. Thank you, Mr. Ranking Member. I concur precisely in your last question and the responses thereto. So I would 

like to thank you all for your testimony, and, without objection, 

Members will have 5 legislative days to submit any additional 

questions, which we will forward to the witnesses and ask that you 

answer as promptly as you can to be made a part of the record. 

Without objection, e record will remain open for 5 legislative days 

for the submission of any other additional materials. 

I thank everyone for their time and patience. The markup of 

H.R. 5281 will follow this hearing. This hearing of the Subcommittee on Courts and Competition policy is adjourned. 

[Whereupon, at 3:50 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE HOWARD COBLE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NORTH CAROLINA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS AND COMPETITION POLICY

Mr. Chairman, I appreciate your calling this legislative hearing today. The bill before us, H.R. 5281, addresses an obscure but important issue that touches on federalism and the balanced relationship between the national government and the individual states. 

The ‘‘Removal Clarification Act of 2010’’ primarily amends Section 1442 of title 

28 of the US Code. This is a statute that allows federal officers, under limited conditions, to remove cases filed against them in state court to US district court for disposition. 

The purpose of Section 1442 is to deny state courts the power to hold a federal 

officer criminally or civilly liable for an act allegedly performed in the execution of 

their federal duties. This doesn’t mean federal officers can break the law; it just 

means that these cases are transferred to US 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 under 

our Constitution. Federal officers or agents, including congressmen, shouldn’t be 

forced to answer in a state forum for conduct asserted in performance of federal duties. 

It’s my understanding that US district courts have inconsistently interpreted the 

statute. Most recently in March, the Fifth Circuit ruled that the federal removal 

statute does not apply to a Texas state law involving pre-suit discovery. Since 46 

other states have similar laws, the House General Counsel’s Office is concerned that 

more federal courts will adopt the Fifth Circuit’s logic. 

The problem occurs when a plaintiff who contemplates suit against a federal officer petitions for discovery without actually filing suit in state court. Technically, according to the Fifth Circuit, this conduct only anticipates a suit; it isn’t a ‘‘cause 

of action’’ as contemplated by the federal removal statute. 

The problem is compounded because a separate federal statute, Section 1447, requires US 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 Section1447 is limited and has no application to suits involving federal officers and Section 1442. This means remanded 

cases brought against federal officers under these conditions cannot find their way 

back to federal court. 

This result is at odds with the history of the federal removal and remand statutes 

that we will examine today. That’s why I’m an original cosponsor of H.R. 5281. I 

look forward to interacting with the witnesses this afternoon, and I intend to vote 

for the bill when we proceed to markup at the conclusion of the hearing. 

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