Date: 2011-02-28
Speaker: DANIEL E. LUNGREN (republican)
Chamber: H
State: Cali

fornia. I yield myself such time as I may consume. Mr. Speaker. the Removal Clarification Act of 2011. sponsored by the gentleman from Georgia . primarily amends section 1442 of title 28 of the U.S. Code. This is a statute that allows Federal officers. under limited conditions. to remove cases filed against them in State court to U.S. District Court for disposition. The purpose of section 1442 is to deny State courts the power to hold Federal officers criminally or civilly liable for acts allegedly performed in the execution of their Federal duties. This does not mean Federal officers can break the law. rather. it just means that these cases are transferred to U.S. District Court for consideration. Congress wrote the statute because it deems the right to remove under these conditions essential to the preeminence of the Federal Government on those matters entrusted to it under the Constitution. Federal officers or agents. even Members of Congress. should not be forced to answer in a State forum for conduct asserted in the performance of Federal duties. The Supreme Court weighed in on this matter long ago. As the Court explained in the case of Willingham v. Morgan. the Federal Government can only act through its officers and agents. and they must act within the States. If. when acting and within the scope of their authority. those officers can be arrested and brought to trial in a State court for an alleged offense against the law of the State. yet warranted by the Federal authority they possess. and if the general government is powerless to interfere at once for their protection. the operations of the general government may at any time be arrested at the will of one of its members. District courts have inconsistently interpreted the statute. Most recently. in March. 2010. the Court of Appeals for the Fifth Circuit upheld a district court ruling in Texas that the Federal removal statute does not apply to a Texas law involving presuit discovery. Because 46 other States have similar laws. the House General Counsels Office is concerned that more Federal courts will adopt this logic. The problem occurs when a plaintiff who contemplates suit against a Federal officer petitions for discovery without actually filing suit in State court. Many Federal courts now assert that this conduct only anticipates a suit. it is. therefore. not a "cause of action" as contemplated by the Federal removal statute. The problem is compounded because of a separate Federal statute. section 1447 of title 28. Therein it requires U.S. district courts to remand any case back to State court if "at any time before final judgment it appears that the district court lacks subject matter jurisdiction." Judicial review of remand orders under section 1447 is limited and has no application to suits involving Federal officers and section 1442. So this means remanded cases brought against Federal officers under these conditions cannot find their way back to Federal court. a result that conflicts with the history of the Federal removal and remand statutes. While we passed a predecessor bill last July. the other body developed minor amendments to clarify the text. These changes were vetted with House Judiciary and we endorse them. The revisions improve the bill in two ways. First. the new language stipulates that only Federal issues are removable to Federal court. And second. the text provides that a 30day removal "clock" is triggered either by a request for testimony or documents. or an order enforcing such a request. In addition. the floor version strikes section 3 of H.R. 368. This is superfluous language that references a favorable CBO score inserted in the CONGRESSIONAL RECORD last year in advance of our consideration of the predecessor bill. Section 3 isnt needed because we have an updated CBO scorealso favorablethat applies to this years bill. In closing. I would like to thank Congressman JOHNSON for his hard work on this project. and I would urge my colleagues to support H.R. 368. Mr. Speaker. I reserve the balance of my time.