Removal Clarification Act of 2010

Floor Speech

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Mr. JOHNSON of Georgia. Madam 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 the objection of the Federal officer.

When a similar bill passed the House in July, I explained that the bill will not result in the removal of the entire case when a Federal officer is merely served with a discovery request. The version of the bill we consider today reflects refinements proposed by the Senate to make that even clearer. The bill now states that ``[i]f there is no other basis for removal, only that proceeding may be removed to the district court.'' This makes very clear that the Federal court must consider the discovery request served on the Federal official as a separate proceeding from the underlying State court case.

This bill continues to have strong bipartisan support, and I would like to thank Chairman CONYERS, Ranking Member SMITH, and the Ranking Member of the Courts Subcommittee, HOWARD COBLE of North Carolina, for their work on this bill. I would also like to thank Courts Subcommittee counsel Liz Stein for all her tremendous work on this bill over several months.

I urge my colleagues to support this important legislation.

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