Removal Clarification Act of 2010

Floor Speech

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Mr. JOHNSON of Georgia. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the Removal Clarification Act of 2010 will enable Federal officials--Federal officers, in the words of the statute--to remove cases filed against them to Federal court in accordance with the spirit and intent of the current Federal officer removal statute.

Under the Federal officer removal statute, 28 U.S.C. 1442(a), Federal officers are able to remove a case out of State court and into Federal court when it involves the Federal officer's exercise of his or her official responsibilities. However, more than 40 States have pre-suit discovery procedures that require individuals to submit to deposition or respond to discovery requests even when a civil action has not yet been filed. Courts are split on whether the current Federal officer removal statute applies to pre-suit discovery. This means that Federal officers can be forced to litigate in State court despite the Federal statute's contrary intent.

This bill will clarify that a Federal officer may remove any legally enforceable demand for his or her testimony or documents if the basis for contesting the demand has to do with the officer's exercise of his or her official responsibilities. It will also allow for appeal to the Federal circuit court if the district court remands the matter back to the State court over objection of the Federal officer.

Some clarity issues were raised by witnesses during a Courts and Competition Policy Subcommittee hearing on the bill. Since the subcommittee markup, we have worked to address those issues, and the bill before us today clarifies the bill without making substantive changes. In particular, the addition of ``whether or not ancillary to another proceeding'' helps clarify that the bill will not result in the removal of entire State court actions to Federal court simply because a Federal officer is sent a discovery request. In this type of situation, the Federal court is to consider the discovery request as a separate proceeding from the underlying State court case so that it will now be removed and dealt with separately without removing the underlying case.

Nor will this bill lead to cases being dismissed in Federal court on the grounds that there is no Federal corollary to pre-suit discovery. Application of the State pre-suit discovery law will be considered as substantive under the Erie doctrine. The Federal court will apply the State substantive law. This legislation does not create a substantive loophole. It merely makes a procedural clarification.

Finally, the bill makes clear that the timing requirement under 28 U.S.C., section 1446 is not affected. It restates the 30-day requirement for removing the case after the judicial order is sought as well as after the judicial order is enforced. This addition to section 1446 is limited to only the Federal officer removal under section 1442.

This bill has strong bipartisan support. I would like to thank Chairman Conyers, Ranking Member Smith, and the ranking member of the Court Subcommittee, HOWARD COBLE of North Carolina, for their work on this bill, and I urge my colleagues to support this important legislation.

I reserve the balance of my time.

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