H.R. 5281: Removal Clarification Act of 2010

H.R. 5281

Removal Clarification Act of 2010

Rep. Henry C. "Hank" Johnson Jr.

July 27, 2010 (111th Congress, 2nd Session)

Staff Contact
Sarah Makin

Floor Situation

H.R. 5281 is expected to be considered on the floor of the House on Tuesday, July 27, 2010, under a motion to suspend the rules, requiring a two-thirds vote for passage.  The legislation was introduced by Rep. Hank Johnson (D-GA) on May 12, 2010.  The House Committee on the Judiciary held subcommittee hearings in May, 2010.

Bill Summary

H.R. 5281 would specify that “civil action” and “criminal prosecution” include “any proceeding in which a judicial order, including a subpoena for testimony or documents, is sought or issued.”  The bill  clarifies that a civil action “commenced” in state court includes those brought “against” a federal officer (which covers suits) as well as those “directed to” a federal officer (which presumably covers discovery proceedings).  The bill also stipulates that if a case combines state subject matter with an ancillary federal issue, only the federal portion will be removable.     


The bill rewrites the federal code to permit removal by federal officers “in an official or individual capacity, for or relating to any act under color” of their office. 

The bill also strikes a reference to federal officers who are “sued” under the statute to deemphasize the current need for a suit to be brought in advance of a motion to remove.    

The bill preserves the institutional practice of how the Department of Justice (DoJ) responds to subpoenas.  The bill prescribes the procedures for federal removal.  Under the statute, the defendant in a civil action must request removal within 30 days following receipt of the complaint.   In a criminal case, the request must come within 30 days of arraignment or at any time before trial, whichever is earlier.  DoJ would like to maintain the ability to “retrigger” the 30-day period for removal cases that involve enforcement of subpoena requests.

H.R. 5281 also amends the code by permitting judicial review of certain cases that are remanded, just as they are with civil rights cases.


The following information is courtesy of the House Judiciary Committee Republicans:

The relevant statute

Section 1442 of title 28 authorizes removal of civil actions or criminal cases brought in state courts against the following entities:


  • The US government, a US agency, or a federal officer sued for any act under color of their office or pursuant to a right derived from Congress to apprehend or punish criminals or to collect revenue; 


  • a property holder whose title derives from a federal officer, where a civil cause of action or criminal prosecution affects the validity of a federal law;


  • federal judicial officers acting under color of office or in the performance of their duties; and


  • Members or Senators acting in the discharge of their official duties. 


Why the statute was written and how it works


Testimony provided at the Subcommittee hearing on the subject reveals that the origins of §1442 may be traced back to 1815.  The modern-day statute was written in the 1940s.   


            The purpose of the law is to take from state courts the indefeasible power to hold a federal officer or agent criminally or civilly liable for an act allegedly performed in the execution of their federal duties.  This doesn’t mean federal officers can break the law; it just means that these cases are transferred to US district court for consideration. Congress wrote the statute because it deems the right to remove under these conditions essential to the integrity and preeminence of the federal government within its realm of authority.  Federal officers or agents, including congressmen, shouldn’t be forced to answer for conduct asserted within their federal duties in a state forum that invites “local interests or prejudice” to color outcomes.  In the absence of this constitutional protection, federal officers, including congressmen, would be subject to political harassment and federal operations generally would be needlessly hampered.   


            The statute and supporting case law require federal officers to assert a federal defense, such as absolute or qualified immunity, as part of a successful motion to remove.  Federal officers must also show that the state suits are based on acts undertaken pursuant to color of office; in other words, they must demonstrate a causal connection between the charged conduct and asserted official authority. Removal is allowed only when the acts of federal defendants are essentially ordered or demanded by federal authority, which also gives rise to federal defenses required by the statute.                      


The problem as illustrated in the case of Price v. Johnson 

            House Rule II(8) authorizes the Office of the General Counsel, which provides legal assistance and representation to the House of Representatives and its Members. One of their attorneys flagged a recently-decided case involving a Texas state legal action taken against a Member of Congress (US Rep. Eddie Bernice Johnson) in which removal to federal court was denied by a US District Court and the Fifth Circuit.


            Representative Johnson represents the 30th Congressional District of Texas that includes much of the City of Dallas and portions of Dallas County.  She also serves on the Transportation and Infrastructure Committee. On December 9, 2008, she gave an interview to a reporter for the Dallas Observer regarding the development of an island transportation complex in southern Dallas County known as the Inland Port project.  Representative Johnson has supported the project for years based on her belief that it will create jobs and other economic benefits for the area. 


            During the course of the interview, Representative Johnson, along with Dallas County Judge Jim Foster, were quoted as criticizing Dallas County Commissioner John Wiley Price, who publicly supported development of the inland port. The Observer reporter quoted both Representative Johnson and Judge Foster as saying that Price had been “shaking down” inland port developers.  The article ran on December 18, 2008.        


            On February 17, 2009, in state district court for Dallas County, Price filed a motion to depose Representative Johnson pursuant to Texas Rule 202.  Under Rule 202, a plaintiff may request a pre-suit deposition to “perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or … to investigate a potential claim or suit.” 


            In response to this action, Representative Johnson removed the case to federal court pursuant to 28 USC §1442 and moved to dismiss the Price petition on four substantive grounds, including immunity under the Federal Tort Claims Act. 


On April 7, 2009, while the motion to dismiss was still pending and without responding to it, Price moved to remand the case to state court under 28 USC §1447. The next day the federal court granted the remand motion even though Representative Johnson had not filed her opposition. A motion to stay the remand order was rejected, and the case was appealed to the US Court of Appeals for the Fifth Circuit.   


The Fifth Circuit dismissed the appeal and sided with the District Court,   ruling that a Texas Rule 202 proceeding is not a “civil cause of action” under 28 USC §1442 because “it asserts no claim upon which relief can be granted and instead seeks an order for a deposition that may or may not result in the filing of an actual suit.”  And because the District Court lacked subject matter jurisdiction in the case (i.e., over a “civil action” or a “cause of action”), the Fifth Circuit reasoned they could not assert jurisdiction to review the corresponding remand order. 


Representative Johnson has since appealed the case back to the Fifth Circuit under color of a mandamus petition.         


The House General Counsel’s Office and the other witnesses note that federal courts have applied §1442 inconsistently in recent years; Price v. Johnson is just the most recent high-profile case that illustrates the problem.  In fact, at the Subcommittee hearing on the subject, the General Counsel emphasized that case law interpreting the removal statute is not just split among the circuits but within them as well. 


To summarize, the problem occurs when a plaintiff who contemplates suit against a federal officer petitions for discovery without actually filing suit in state court. An increasing number of federal courts maintain this conduct just anticipates a suit; it isn’t a “cause of action” as contemplated by the federal removal statute, 28 USC §1442.


The problem is compounded because the separate federal remand statute, 28 USC §1447, requires US district courts to remand any case back to state court if “at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” Remand orders under §1447 are reviewable if the suit involves civil rights – it has no application to suits involving congressmen and §1442. This means remanded cases brought against congressmen under these conditions cannot find their way back to federal court.     


Given that 47 states have enacted pre-civil suit discovery statutes, the General Counsel’s Office recommends that the relevant portions of §§1442 and 1447 be amended to take into account the operation of these state pre-civil suit discovery statutes.


The Congressional Budget Office has not produced a cost estimate for H.R. 5281 as of press time.