Support of the "Removal Clarification Act of 2010''

Floor Speech

* Mr. JOHNSON of Georgia. Madam Speaker, I rise today to introduce the "Removal Clarification Act of 2010.'' This bipartisan legislation will help protect the Federal Government from interference with its operations.

* Under the federal officer removal statute, 28 U.S.C. §1442(a), ``any officer of the United States or of any agency thereof, sued in an official capacity or individual capacity for any act under color of such office'' may remove the case to Federal district court. The statute is designed to enable Federal officials to remove a case out of State court and into Federal court.

* However, in over forty States, individuals may be deposed and/or required to produce documents despite the fact that they have not yet been sued. Such pre-suit discovery is sometimes used by plaintiffs to confirm that they are suing the proper defendant, identify unknown defendants, or investigate potential claims.

* Courts are split on whether the removal statute applies to pre-suit discovery. Today's legislation will make clear that the removal statute applies to all State judicial proceedings in which a legal demand is made for a Federal officer's testimony or documents, including pre-suit discovery. It will also clarify that the Federal officer need not wait until he or she is subject to contempt in order to seek removal.

* The ambiguity over whether a Federal officer can invoke the removal statute during pre-suit discovery was presented in a recent case involving Republican EDDIE BERNICE JOHNSON, who was the subject of a pre-suit discovery petition. Republican JOHNSON removed the action from State court on the basis of the removal statute. However, the Federal court held that the pre-suit discovery proceeding did not constitute a ``civil action or criminal prosecution'' for purposes of the statute and remanded the petition to State court. The bill I introduce today would have permitted such removal.

* This bill will not alter the well-settled requirement that removal under section 1442(a)(1) must be predicated on the availability of a Federal defense. Nor will it result in removal of cases that belong in State court since only the part of the case involving the Federal officer is removed under 1442(a)(1).

* In short, this legislation will enable Federal officials to remove cases to Federal court in accordance with the spirit and intent of the removal statute.

* I hope that my colleagues will join me in supporting this bipartisan legislation.

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