Removal Clarification Act of 2011

Floor Speech

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Mr. JOHNSON of Georgia. 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.

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