109TH CONGRESS

1ST SESSION H. R. 1332

AN ACT

To amend title 28, United States Code, to provide for the

removal to Federal court of certain State court cases

involving the rights of incapacitated persons, and for

other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Protection of Incapaci3 tated Persons Act of 2005’’.

4 SEC. 2. REMOVAL OF CERTAIN CASES TO FEDERAL COURT

5 TO PROTECT THE RIGHTS OF INCAPACI6 TATED PERSONS.

7 (a) RIGHT OF REMOVAL.—Chapter 89 of title 28,

8 United States Code, is amended by adding at the end the

9 following:

10 ‘‘§ 1453. Protection of rights of incapacitated persons

11 ‘‘(a) Notwithstanding any other provision of this

12 chapter, not later than 30 days after available State rem13 edies have been exhausted, an incapacitated person, or the

14 next friend of an incapacitated person, may remove any

15 claim or cause of action described in subsection (b) to the

16 United States district court for the district in which the

17 claim or cause of action arose, or was heard.

18 ‘‘(b) The claim or cause of action referred to in sub19 section (a) is one in which the State court authorizes or

20 directs the withholding or withdrawal of food or fluids or

21 medical treatment necessary to sustain the incapacitated

22 person’s life, but does not include a claim or cause of ac23 tion in which no party disputes, and the court finds, that

24 the incapacitated person, while having capacity, had exe25 cuted a written advance directive valid under applicable

26 law that clearly authorized the withholding or withdrawal
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1 of food or fluids or medical treatment in the applicable

2 circumstances.

3 ‘‘(c) In hearing and determining a claim or cause of

4 action removed under this section, the court shall only

5 consider whether authorizing or directing the withholding

6 or withdrawal of food or fluids or medical treatment nec7 essary to sustain the incapacitated person’s life constitutes

8 a deprivation of any right, privilege, or immunity secured

9 by the Constitution or laws of the United States.

10 ‘‘(d) The United States district court shall determine

11 de novo any claim or cause of action considered under sub12 section (c), and no bar or limitation based on abstention,

13 res judicata, collateral estoppel, procedural default, or any

14 other doctrine of issue or claim preclusion shall apply.

15 ‘‘(e) As used in this section—

16 ‘‘(1) the term ‘incapacitated person’ means a

17 born individual who is presently incapable of making

18 relevant decisions concerning the provision, with19 holding, or withdrawal of food, fluids or medical

20 treatment under applicable law; and

21 ‘‘(2) the term ‘next friend’ means an individual

22 who has some significant relationship with the real

23 party in interest, and includes a parent.’’.

24 (b) CLERICAL AMENDMENT.—The table of sections

25 at the beginning of chapter 89 of title 28, United States
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1 Code, is amended by adding at the end the following new

2 item:

‘‘1453. Protection of rights of incapacitated persons.’’.

Passed the House of Representatives March 16,

2005.

Attest:

Clerk.
109TH CONGRESS

1ST SESSION H. R. 1332

AN ACT

To amend title 28, United States Code, to provide

persons, and for other purposes.court cases involving the rights of incapacitatedfor the removal to Federal court of certain State