CONGRESSWOMAN ELISE STEFANIK
On Monday, February 28, 2011, the House is scheduled to consider H.R. 368, under suspension of the rules, requiring a two-thirds majority vote for passage. The bill was introduced on January 20, 2011, by Rep. Henry Johnson (D-GA) and referred to the Committee on the Judiciary, as well as the Committee on the Budget. The Committee on the Judiciary held a markup of H.R. 368 on January 26, 2011, and ordered the bill to be reported by voice vote.
H.R. 368 would clarify when federal employees can transfer their case from a state court to a federal district court. Under current law, federal employees can transfer their cases to federal court or seek clarification from a federal court on the degree to which they must comply with a state-issued subpoena.
Specifically, the bill would revise the federal judicial code to provide that a civil or a criminal action that is begun in a state court and that is against or directed to the U.S. or a federal agency or officer, may be removed to an appropriate U.S. district court. The bill would also provide that civil and criminal actions include any proceeding to the extent that in such a proceeding a judicial order, including a subpoena for testimony or documents, is sought or issued. The bill would limit the removal of such an action (or issue), if there is no other basis for removal, to only that specific action, with the remainder staying in state court.
H.R. 368 declares that the 30-day notice of removal requirement be satisfied in a civil or criminal proceeding in which a judicial order is sought, or issued, or sought to be enforced, if the person or entity desiring to remove the proceeding files notice of removal no later than 30 days after receiving notice of the proceeding.
According to majority staff on the Committee on the Judiciary, courts have inconsistently applied a federal statute that allows a federal officer to remove a state action to federal court when the federal officer’s involvement only relates to his status as a federal officer. The bill clarifies existing law by allowing removal in these cases, including instances in which a plaintiff makes use of a state “pre-suit discovery” statute.
According to CBO, H.R. 368 would have no significant budgetary impact.