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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.
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
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
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.
THE RELEVANT STATUTE
Section 1442 of title 28 authorizes removal of civil
actions or criminal cases brought in State courts against the
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
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
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
The Committee on the Judiciary held no hearings on H.R.
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.
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
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
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
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.
Douglas W. Elmendorf,
Honorable John Conyers, Jr.
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
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.
The following discussion describes the bill as reported by
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
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.
* * * * * * *