Removal Clarification Act of 2011

Mr. President, in 2008, I was proud to join Senator Durbin in support of the National Guard and Reservists Debt Relief Act, which President Bush signed into law. This last week I have been able to arrange on behalf of the Senate Judiciary Committee for expedited action on the bill's extension, and that the Senate is passing unanimously. I commend Chairman Lamar Smith and the House Judiciary Committee for moving this legislation, and Representative Cohen, the bill's author, for his leadership and attention to the issue. Without this measure, the authority we provided to help our Guard and Reserve families would expire. By taking this action we preserve the assistance this authority provides.

It is a privilege to work on behalf of the men and women who serve in the Vermont National Guard. They have and continue to make all Vermonters proud. I cannot say enough about the men and women who serve in the National Guard and Reserve. They and their families deserve the full support of Congress for the sacrifices they make. Especially now, where multiple conflicts have demanded even more of them, when so many have been called into active service, we need to keep them foremost in our thoughts.

Extending the protections of the National Guard and Reservists Debt Relief Act for another 4 years is the right thing to do. The bill the Senate passes today will exempt qualifying members of the Guard and Reserve from the harsh means test imposed in our bankruptcy laws a few years ago. As a result of Congress's enactment of a 2005 bankruptcy measure, passed at the behest of large banks and credit card companies, Americans who must make the difficult decision to seek the protection of the bankruptcy court now face onerous requirements to demonstrate that they are experiencing sufficient hardship to enter chapter 7 bankruptcy. Under the National Guard and Reservists Debt Relief Extension Act, qualifying members of the Guard and Reserve will be protected against the burden of this requirement for another 4 years.

In my view, no American, particularly in times of such economic hardship, should have this burdensome requirement of the so-called means test imposed upon them. The bankruptcy system was established to protect Americans and give them a fresh start. The 2005 enactment turned the law on its head. I opposed this provision in the Senate in 2005, and continue to have serious misgivings about a policy that presumes that Americans facing extreme financial hardships are abusing the bankruptcy process.

Passage of the National Guard and Reservists Debt Relief Extension Act is a step forward toward correcting our current policy.

I also note that passage of this legislation is another example of the good cooperation that exists between the Senate and House Judiciary Committees operating across the aisle and across the Capitol. Last night, the Senate passed H.R. 394, the Federal Courts Jurisdiction and Venue Clarification Act, a bill sponsored by Chairman Smith to bring clarity to the operation of Federal jurisdictional and venue statutes, thereby helping to reduce wasteful litigation over these issues. This bipartisan bill was cosponsored in the House by Representatives by Howard Coble, ranking member John Conyers, Jr., and Hank Johnson of Georgia. Companion legislation was introduced in the Senate by Senator Klobuchar, who chairs the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts, and was cosponsored by Senator Sessions, the ranking member on the subcommittee.

These two bills are just the most recent examples of legislation I have worked with Chairman Smith to enact. Of course, we worked together to enact the Leahy-Smith America Invents Act to revitalize our patent laws. We worked together on authorizing the extension of the term of FBI Director Mueller, which required a statutory exception, and on reauthorizing the USA PATRIOT Act.

Other examples include H.R. 368, Representative Hank Johnson's bill to clarify removal provisions for matters filed in State courts against Federal agencies and officers; H.R. 398, Representative Lofgren's bill to toll certain time periods for those in active service to our country; S.1637, Senator Klobuchar's bill to clarify how time is calculated under the Federal Rules; and H.R. 2944, Chairman Smith's bill to extend the authority of the U.S. Parole Commission.

In addition to these nine measures, we are continuing to work on a number of additional bills, including: S. 1639, Senator Tester's bill to amend the American Legion charter; and S. 1541, Senator Bennet's bill to revise the Blue Star Mothers' charter.

I look forward to our continued collaborative relationship. Our successful efforts across the aisle and across the Capitol show that the partisan gridlock

that has become all too prevalent these days does not govern everywhere.

Mr. Speaker, I move to suspend the rules and pass 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, as amended.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and to include extraneous materials on H.R. 368, currently under consideration.

I yield myself such time as I may consume.

Mr. Speaker, the Removal Clarification Act of 2011, sponsored by the gentleman from Georgia (Mr. Johnson), 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 pre-suit discovery.

Because 46 other States have similar laws, the House General Counsel's 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 30-day 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 isn't needed because we have an updated CBO score--also favorable--that applies to this year's 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.

Mr. Speaker, once again I would like to thank the gentleman from Georgia for bringing this bill to the committee and to the floor. I urge my colleagues to support this bill.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I rise today in support of the amendment to H.R. 368, ``The Removal Clarification Act of 2011.''

``The Removal Clarification Act of 2011'' clarifies when a case involving a federal official can be removed from a state court into a federal court. It states that a federal official can remove cases to federal court in accordance with the spirit and intent of the federal officer removal statute. It is also makes clear that the federal officer removal statute applies to all federal officials, including officials of the legislative and executive branch of the Federal government.

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. Federal officers or agents, including congressmen, 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 constitutional protection, federal officers, including congressmen and women, would be subject to political harassment and federal operations generally would be needlessly hampered.

H.R. 368, introduced by my colleague Rep. Hank Johnson of Georgia, is a non-controversial, bipartisan bill that was passed by the House and passed in the Senate with an amendment at the end if the 111th Congress. Just about a month ago, we considered this bill in the House Judiciary Committee, and it received support from my colleagues on both sides of the aisle.

Currently under 28 U.S.C. 1442(a), federal officials are able to remove a case out of state court and into federal court. However under state per-suit discovery laws, federal officials may be unable to remove the case because a ``civil action'' has not yet been filed.

H.R 368 does not make any changes to the underlying removal law. It simply clarifies 28 U.S.C. 1442(a) by including any proceeding to the extent that in such a proceeding, a judicial order, including a subpoena for testimony or documents, is sought or issued.

In my home state of Texas, there was a recent high profile case, Price v. Johnson, involving a Texas state legal action taken against Rep. Johnson, where the removal to federal court was denied by the U.S. District Court. The Fifth Circuit illustrated the importance of better clarity needed in 28 U.S.C. 1442(a). In the 111th Congress, the Judiciary Committee's Subcommittee on Courts and Competition Policy found that case law interpreting the removal statue is not just split among the circuits, but within them as well. Therefore, H.R. 368 is a much needed measure to once and for all settle the confusion amongst rulings in the Federal District Courts.

Currently, there are 47 states that have enacted pre-civil suit discovery statues; H.R. 368 would take into account the operation of these state pre-civil suit discovery statues and provide clarification to prevent more cases like Price v. Johnson from occurring.

H.R. 368 is essential to the integrity and preeminence of the federal government within its realm of authority. This bill will also allow for appeal to the federal court if the district court remands the matter. back to the state court and that the federal defense is also still needed for removal.

I ask my colleagues to please join me in supporting H.R. 368, ``the Removal Clarification Act of 2011.''

I thank the gentleman from California, and I yield myself such time as I may consume.

Mr. Speaker, H.R. 368, the Removal Clarification Act of 2011, will enable Federal officials to remove cases to Federal court in accordance with the spirit and intent of the Federal officer removal statute, 28 U.S.C. 1442(a). This is a noncontroversial, bipartisan bill. In the 111th Congress, a nearly identical version passed the House under a suspension of the rules and passed the Senate with an amendment by unanimous consent.

Under the Federal officer removal statute, a Federal officer should be able to remove a case from State court to Federal court when it involves the Federal officer's exercise of his or her official responsibilities. The purpose underlying the Federal officer removal statute is to prevent State litigants from interfering with the Federal Government's operations. There is, however, some ambiguity as to whether the Federal officer removal statute applies to State pre-suit discovery procedures. More than 40 States have such procedures, which require individuals to be deposed or respond to discovery requests even when a civil action has not yet been filed. This means that Federal officials can be forced to litigate in State court, undermining the purpose and intent of the Federal officer removal statute.

Courts are split on whether the removal statute applies to pre-suit discovery. Some courts have found that Federal officers cannot remove a proceeding to Federal court when these pre-suit discovery motions are at issue while others have found that such proceedings could be removed. This bill will clarify that Federal officers should be able to remove a proceeding to Federal court any time a legal demand is made for a Federal official's testimony or documents if the officer's exercise of his or her official responsibilities was at issue.

The legislation will also allow a Federal officer to appeal a district court's decision to remand the matter back to the State court, pursuant to 28 U.S.C. 1447. This bill will not result in the removal of the entire State case when a Federal officer is served with a discovery request when the only hook is that a Federal officer has been served with such a discovery request. Rather, the bill we consider today makes clear that ``if there is no other basis for removal, only that discovery proceeding may be removed to the district court.''

Finally, the bill makes clear that the timing requirement under 28 U.S.C. 1446 will not be changed, restating the 30-day requirement for removing the case when the judicial order is sought as well as when the judicial order is enforced.

In closing, I would like to thank Chairman Smith and Ranking Member Conyers for working with me on this bill, and I urge my colleagues to support this important bipartisan piece of legislation.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on Monday, February 28, 2011, I was unable to be present for recorded votes. Had I been present, I would have voted ``yes'' on rollcall vote No. 148 (on the motion to suspend the rules and pass H.R. 394, as amended), ``yes'' on rollcall vote No. 149 (on the motion to suspend the rules and pass H.R. 347, as amended), and ``yes'' on rollcall vote No. 150 (on the motion to suspend the rules and pass H.R. 368, as amended).