[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
REMOVAL CLARIFICATION ACT OF 2010
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS AND
COMPETITION POLICY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
ON
H.R. 5281
__________
MAY 25, 2010
__________
Serial No. 111-128
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois TED POE, Texas
JUDY CHU, California JASON CHAFFETZ, Utah
TED DEUTCH, Florida TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Courts and Competition Policy
HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chairman
JOHN CONYERS, Jr., Michigan HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia JASON CHAFFETZ, Utah
CHARLES A. GONZALEZ, Texas F. JAMES SENSENBRENNER, Jr.,
SHEILA JACKSON LEE, Texas Wisconsin
MELVIN L. WATT, North Carolina BOB GOODLATTE, Virginia
MIKE QUIGLEY, Illinois DARRELL ISSA, California
DANIEL MAFFEI, New York GREGG HARPER, Mississippi
JARED POLIS, Colorado
Christal Sheppard, Chief Counsel
Blaine Merritt, Minority Counsel
C O N T E N T S
----------
MAY 25, 2010
Page
THE BILL
H.R. 5281, the ``Removal Clarification Act of 2010''............. 3
OPENING STATEMENTS
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
Congress from the State of Georgia, and Chairman, Subcommittee
on Courts and Competition Policy............................... 1
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Ranking Member, Subcommittee on
Courts and Competition Policy.................................. 5
WITNESSES
Ms. Beth Brinkmann, Deputy Assistant Attorney General, Civil
Division, U.S. Department of Justice, Washington, DC
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. Irvin B. Nathan, General Counsel, Office of the General
Counsel, U.S. House of Representatives, Washington, DC
Oral Testimony................................................. 11
Prepared Statement............................................. 14
Mr. Lonny Hoffman, George Butler Research Professor of Law,
University of Houston Law Center, Houston, TX
Oral Testimony................................................. 30
Prepared Statement............................................. 32
Arthur D. Hellman, Professor of Law, University of Pittsburgh
School of Law, Pittsburgh, PA
Oral Testimony................................................. 54
Prepared Statement............................................. 57
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard Coble, a
Representative in Congress from the State of North Carolina,
and Ranking Member, Subcommittee on Courts and Competition
Policy......................................................... 85
REMOVAL CLARIFICATION ACT OF 2010
----------
TUESDAY, MAY 25, 2010
House of Representatives,
Subcommittee on Courts and
Competition Policy
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:04 p.m., in
room 2141, Rayburn House Office Building, the Honorable Henry
C. ``Hank'' Johnson, Jr. (Chairman of the Subcommittee)
presiding.
Present: Representatives Johnson, Boucher, Watt, Polis,
Coble, Chaffetz, Goodlatte, Issa, and Harper.
Staff Present: (Majority) Eric Garduno, Counsel; Elisabeth
Stein, Counsel; Rosalind Jackson, Professional Staff Member;
(Minority) Blaine Merritt, Counsel; and Tim Cook, Staff
Assistant.
Mr. Johnson. This hearing of this Committee on the
Judiciary, Subcommittee on Courts and Competition policy will
now come to order. Without objection, the Chair will be
authorized to declare a recess of the hearing.
Before we begin, I will welcome Representative Polis when
he gets here, if he arrives.
I will now recognize myself for a short statement. I am
pleased to hold a hearing today on my bill, H.R. 5281, the
``Removal Clarification Act of 2010.''
This bill will ensure that Federal officers, including
officials from all three branches of government are able to
properly remove to Federal court when sued, based on actions
undertaken in their official capacity.
This is a bipartisan bill and I was pleased that Chairman
Conyers, the Ranking Member of the full Judiciary Committee,
Representative Smith, and the Ranking Member of this
Subcommittee, Representative Coble, all joined as original
cosponsors.
The purpose of the Federal officer removal statute is to
ensure that Federal officials can remove to a Federal forum so
that the Federal Government will be free from interference with
its operations. However, over 40 States have passed pre-suit
discovery proceedings where individuals may be deposed and/or
required to produce documents, despite the fact that a civil
action has not yet commenced. These pre-suit discovery
procedures have muddied the waters of the Federal removal
statute as our Federal courts have split on whether the removal
statute applies to such pre-suit discovery. Some courts apply
the removal statute to pre-suit actions. Other courts don't
and, instead, have held that pre-suit actions are not covered
by the removal statute because there is not yet a civil action
under 1442.
Furthermore, some of these courts require a Federal
official or agency to be held in contempt before the matter can
be removed.
H.R. 5281 will make clear that section 1442 should apply
anytime a legal demand is made on a Federal officer for any act
done under their official capacity. It will also provide that
there can be an appeal to the Federal circuit court if the
Federal district court rejects a removal petition under 1442
and remands the matter back to the State court.
In short, H.R. 5281 will enable Federal officials to remove
cases to Federal court in accordance with the spirit and the
intent of the Federal officer removal statute.
I want to stress today that we are not changing the
underlying removal law. Removal still must be predicated on the
availability of a Federal defense. Further, only the part of
the proceeding involving the Federal official will be removed.
To the extent that there is any ambiguity in this legislation
on those points or any other, I look forward to hearing the
testimony of today's witnesses as to how to resolve such
matters.
And at this point, I would like to take the opportunity to
welcome Representative Jared Polis to the Subcommittee on
Courts and Competition Policy. Representative Polis is not only
a Member of Congress, but he is also a successful innovator and
entrepreneur. He has founded several successful Internet
companies, including proflowers.com and bluemountain.com.
In 2008 Representative Polis was elected to the 111th
Congress, representing Colorado's Second Congressional
District. He currently also serves on the House Education and
Labor Committee and the Rules Committee. He is a charter member
and vice chair of the Sustainable Energy and Environmental
Coalition, the chair of the Immigration Task Force of the
Progressive Caucus, and a member of the Democratic Steering and
Policy Committee. I welcome Representative Polis to this
Subcommittee.
[The bill, H.R. 5281, follows:]
__________
Mr. Johnson. I now recognize my colleague, Mr. Coble, the
distinguished Ranking Member of this Subcommittee, for his
opening remarks.
Mr. Coble. Thank you, Mr. Chairman. I join you in welcoming
Representative Polis as a Member of the Judiciary Committee. I
appreciate, Mr. Chairman, your calling this legislative
hearing. And I appreciate furthermore the outstanding panel who
will testify before us.
The bill, H.R. 5281, addresses an obscure but important
issue that touches on federalism and the balance relationship
between the Federal Government and the individual States. The
Removal Clarification Act of 2010 primarily amends section 1442
of title 28 of the U.S. Code. This is a statute that allows
Federal officers under limited conditions to remove cases filed
against them in State court to U.S. district courts for
disposition.
The purpose of section 1442 is to deny State courts the
power to hold a Federal officer criminally or civilly liable
for an act allegedly performed in the execution of his or her
Federal duties. This does not mean that Federal officers can
break or violate the law; it just simply means that these cases
are transferred to a U.S. 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 under our Constitution.
Federal officers or agents, including Congressmen, shouldn't be
forced to answer in a State forum for conduct asserted in
performance of Federal duties.
It is my understanding, Mr. Chairman, that U.S. district
courts have inconsistently interpreted the statute. Most
recently in March, the Fifth Circuit ruled that the Federal
removal statute did not apply to a Texas State law involving
pre-suit discovery. Since 46 other States have similar laws,
the House General Counsel's Office is concerned that more
Federal courts will adopt the Fifth Circuit's logic.
The problem occurs when a plaintiff who contemplates suit
against a Federal officer petitions for discovery without
actually filing suit in the State court. Technically, according
to the Fifth Circuit, this conduct only anticipates a suit; it
isn't a cause of action as contemplated by the Federal removal
statute.
The problem is compounded, it seems to me, because a
separate Federal statute, section 1447, requires U.S. district
courts to remand any case back to State court if at any time
before the final judgment it appears that the district court
lacks matter of jurisdiction. Judicial review of a remand order
under section 1447 is limited and has no application to suits
involving Federal officers and section 1442. This means
remanded cases brought against Federal officers under these
conditions cannot find their way back to Federal court.
In conclusion, Mr. Chairman, the result is at odds with the
history of the Federal removal and remand statutes that we will
examine today. That is why I am an original cosponsor, as you
pointed out, of H.R. 5281.
I look forward to interacting with the witnesses this
afternoon, and I intend to vote for the bill when we proceed to
markup at the conclusion of the hearing.
I yield back, Mr. Chairman.
Mr. Johnson. I thank the gentleman for his statement.
Without objection, other Members' opening statements will be
included in the record.
I am now pleased to introduce the witnesses for today's
hearing. Our first witness will be Ms. Beth Brinkmann, Deputy
Assistant Attorney General in the Civil Division for the
Department of Justice. Ms. Brinkmann formerly practiced before
the Supreme Court for approximately 15 years. During that time
she was a partner at Morrison & Foerster and served as
Assistant to the Solicitor General of the United States. And we
welcome here today.
Our second witness will be Mr. Irvin Nathan. Since November
of 2007, Mr. Nathan has been the general counsel for the U.S.
House of Representatives. Prior to that, Mr. Nathan was a
senior partner at Arnold & Porter. He is a Fellow of the
American College of Trial Lawyers, a member of the American Law
Institute, and a fellow of the American Bar Foundation.
Welcome, Mr. Nathan.
We also have Professor Hellman, Arthur Hellman. Professor
Hellman is a professor of law at the University of Pittsburgh
where his specialties includes civil procedure, constitutional
law and the Federal courts. Throughout his career, Professor
Hellman has authored a number of publications in these fields,
including two case books. Professor Hellman has testified
before the House and Senate Judiciary Committees many times on
issues related to the Federal courts, and we welcome him here
today.
Our last witness will be Professor Lonny Hoffman. Professor
Hoffman is the George Butler Research Professor of Law at the
University of Houston Law Center where he is an expert on civil
procedure. In 2009, he was elected to the American Law
Institute and since 2005 he has served on the Supreme Court of
Texas Rules Advisory committee. Professor Hoffman received his
law degree from the University of Texas at Austin and a
bachelor's from Columbia University. We welcome you, Professor
Hoffman.
After each witness has presented his or her testimony,
Subcommittee Members will be permitted to ask questions subject
to the 5-minute limit.
Mr. Nathan. Ms. Brinkmann, please proceed with your
testimony.
TESTIMONY OF BETH BRINKMANN, DEPUTY ASSISTANT ATTORNEY GENERAL,
CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Ms. Brinkmann. Good afternoon, Chairman Johnson, Ranking
Member Coble and Members of the Subcommittee. I am pleased to
appear before the Subcommittee today to present the views of
the Department of Justice.
Mr. Watt. Would you pull your mike a little bit closer,
please?
Mr. Johnson. Ma'am, would you pull your mike up a little
bit? And it is on; is that correct?
Ms. Brinkmann. As I was saying, I am pleased to appear
before the Subcommittee today to present the views of the
Department of Justice on the Removal Clarification Act of 2010.
The Department of Justice believes the proposed amendments to
the removal statute would improve the Department's ability to
represent Federal officers and agencies.
The Department represents executive branch's officers and
agencies whose public duties and interests often become at
issue in litigation in State court. The removal statute gives
them, as well as officers of the judicial branch and Members of
Congress, the important right to be heard in a Federal forum.
The amendment to 28 U.S.C. section 1442 would clarify one
aspect of the statute concerning removal of a matter when a
litigant seeks a subpoena in State court against a Federal
official. A Federal official facing a State court subpoena has
a right to have a Federal court determine the extent to which
the Federal official must comply with the subpoena.
The proposed amendment would eliminate uncertainty in law.
It would allow Federal officials to seek a Federal forum at an
early stage of their involvement in such proceedings. It would
protect the Federal official's ability to have a Federal court
determine under Federal law whether compliance with the State
court subpoena is required.
In order to effect the purpose of this amendment we believe
that it would be important also to clarify the deadline by
which removal must be sought, and we would be pleased to work
with the Subcommittee on that issue.
The Department likewise believed that the proposed
amendment to the section of the removal statute that deals with
appeals 28 U.S.C. Section 1447 would improve the Department's
representation of Federal officials. Under current law, if a
Federal district court decides to send back to State court a
case involving a Federal official, the Federal Government has
no right to repeal the remand order and must instead
participate in the State court litigation.
The proposed legislation would give Federal officials the
right to appeal a district court judge's remand order and
afford the court of appeals an opportunity to correct any legal
error. That would allow cases that properly belong in Federal
court to remain there, rather than being erroneously litigated
in State court. Allowing Federal officials to repeal remand
orders would be fully consistent with the existing exceptions
to the no-appeal rule, where there is a similarly strong
Federal interest in a Federal forum.
Although the appeal right is important, as a practical
matter we expect the change in existing law to be limited in
scope. That is because the number of cases that the Federal
Government seeks to remove from State court each year is small.
We expect the occasions on which the Department would need to
appeal a remand order are likely to continue to be few.
In closing, we would be pleased to work with you as the
legislation moves forward. And I would be pleased to address
any questions that you may have.
Mr. Johnson. Thank you, Ms. Brinkmann.
[The prepared statement of Ms. Brinkmann follows:]
Prepared Statement of Beth Brinkmann
__________
Mr. Johnson. Now we will hear from Mr. Nathan.
TESTIMONY OF IRVIN B. NATHAN, GENERAL COUNSEL, OFFICE OF THE
GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, DC
Mr. Nathan. Thank you, Mr. Chairman, for inviting me to
testify concerning H.R. 5281, the ``Removal Clarification Act
of 2010.'' As you know----
Mr. Johnson. Sir, would you please put that mike on also?
Mr. Nathan. The green light is on.
Mr. Johnson. Green light? It should be a red light.
Mr. Nathan. As you know, I have the privilege of serving as
the General Counsel of the House. The function of our offices
includes providing legal representation to Members, officers,
and staff of the House when they are sued or when their
testimony is sought to be compelled in connection with matters
relating to their official responsibilities.
Our office has had considerable experience in matters in
which private litigants have attempted to use the processes of
State courts to compel the testimony of Members and their
staffs. It is based on the experience of our office that I
provide my testimony in support of this legislation. Like the
Department of Justice, our office strongly supports the bill's
enactment.
The statement of the Chairman accurately set forth the
problem and our understanding of the effect of this
legislation, as did Mr. Coble's statement, with one exception
which makes the problem even greater than he described, because
it was not the Fifth Circuit as a court of appeals that ruled
that these pre-suit discovery is not a civil action. There were
two conflicting courts in the district court in the Fifth
Circuit that came to opposite conclusions. And the Fifth
Circuit refused to hear an appeal on the subject to rule on the
question, which underscores why we believe that there needs to
be this clarifying legislation.
The bill would make certain that necessary clarifications
concerning the Federal officer removal statute. That statute is
a longstanding law. Its origins go back to 1815 concerning
where matters are brought in State courts against Federal
officers, based on their actions as Federal officials, and they
are transferred to the Federal court for resolution of that
question. As noted, the law applies to officials of all three
branches of the Federal Government, and the clarification in
the bill seeks to ensure uniform treatment throughout the
country whenever the processes of State courts are invoked
against Federal officers.
Our experience revealed that this bill is a needed
clarification of the removal statute to ensure that removal to
Federal court will be available to Federal officers where there
is an issue of Federal law presented and their Federal duties
are implicated, regardless of the procedures that are used in
different State courts to obtain jurisdiction.
As detailed in my written testimony, there are unintended
ambiguities in the current law that have led to disparate
treatment by courts of virtually identical cases, even within
the same Federal circuit.
In our view the bill, if enacted, would serve the public
interest by making these clarifications in the law.
First, the bill amends 1442 to make clear that the statute,
where its terms are satisfied, applies not just to State
judicial proceedings in which the officer is a defendant or a
party, but to all proceedings in which a legal demand is made
in State court for the officer's testimony or documents.
Based on the disparate treatment that we have received in
Federal courts, the current law is not sufficiently clear that
ancillary proceedings against Federal officers, such as pre-
suit discovery petitions or subpoena enforcement actions, are
civil actions for purposes of removal. As noted more than 40
states have procedures for pre-suit discovery and their
standards vary. When a Federal official is subject to them, the
official should have the matter decided by a Federal court.
The second amendment relates to the appeal and says that if
a Federal court rejects a removal petition in the case of a
Federal officer and remands to the state court there can be an
appeal to the Federal court of appeals. As matters presently
stand, appellate review of a district court remand to the State
courts of an action against a Federal official is generally not
available. That means that over 600 different Federal district
judges have the final unreviewable say over these issues.
In light of the clarifying amendments that we seek to this
statute, as in the bill, the provision regarding appeal will
only apply in a very narrow set of cases, is unlikely to delay
matters, and will tend to promote uniformed interpretation of
the Federal officer removal statute.
The bill appropriately leaves in place the current law and
practices governing Federal officer removal in nearly all
respects. The bill does not alter the standard for general
removal for Federal officer removal under 1442. And it won't
change the widespread current practice in cases involving
subpoenas, like a subpoena to a Federal official whereby only
the ancillary proceedings involving the Federal officer is
removed under section 1442, and the remainder of the case stays
in State court.
I could cite a score of cases in virtually every circuit
where the subpoena enforcement proceeding is removed and the
remainder stays in State court. That issue has been raised by
two of the academic witnesses, and I certainly want to say that
it is our understanding that this bill does not change that
policy, and that the underlying civil action in State court
would remain in State court. It is only the ancillary
proceeding that involved enforcement of a subpoena, or, in the
case of a pre-suit discovery petition, that would go and would
be removed. And we look forward to working with the
Subcommittee to clarify that and to make sure that that is
understood in the statute and in the legislative history.
Mr. Johnson. And if you will sum up, Mr. Nathan.
Mr. Nathan. Yes. Just in short, e bill simply clarifies the
existing statute, and, through the proposed amendments, will
help ensure that Federal officials will not be treated
differently depending on where or by what procedure they are
hailed in to State court. Thank you, Mr. Chairman.
Mr. Johnson. Thank you, sir.
[The prepared statement of Mr. Nathan follows:]
Prepared Statement of Irvin B. Nathan
__________
Mr. Johnson. Now we will hear from Professor Hoffman.
TESTIMONY OF LONNY HOFFMAN, GEORGE BUTLER RESEARCH PROFESSOR OF
LAW, UNIVERSITY OF HOUSTON LAW CENTER, HOUSTON, TX
Mr. Hoffman. Mr. Chairman----
Mr. Johnson. If you would. That microphone down there, I
think it is a virus going around.
Mr. Hoffman. Mr. Chairman and Members of the Committee,
whatever its virtues, this bill could be significantly improved
if more specific language were used to clarify its intended
affects. There are a number of examples that can be cited, but
in my brief time this afternoon I want to focus on one
particular issue involving pre-suit discovery. This issue
implicates a vital policy issue that is raised by the bill; and
that is this: What would be the effect of allowing removal of a
State pre-suit discovery request or order if there is no
comparable right to such discovery under existing Federal law?
The proposed legislation does not provide a clear answer to
this question.
In my judgment, the bill should expressly clarify that
after removal, a Federal judge has authority to decide whether
to allow the sought-after pre-suit discovery.
To illustrate the problem plainly, consider this example.
Someone who believes she was injured, but doesn't have enough
information to bring a suit, files a request to take pre-suit
discovery in a State court from a Federal officer. She says she
believes the Federal officer has information that would lead
her to determine whether she has a viable claim against
someone; perhaps against a Federal officer or perhaps against
some other entity, a separate third party entirely.
Now, assume that under State law she would be able to
obtain the requested investigatory discovery; but under rule
27, the Federal pre-suit discovery rule, she could not. So what
happens if the Federal officer removes this pursuant to 1442 to
Federal court? Does it show up there dead on arrival, to be
immediately dismissed? Or does the Federal judge somehow have
the authority to decide whether to allow the pre-suit discovery
to go forward? Again, the proposed legislation is silent on
these vital questions.
A court faced with these choice of law problems could
reasonably find that the law implicitly authorizes the Federal
judge to decide whether to grant the pre-suit discovery or not.
But the difficulty is with the adverb. To say that a law
implicitly allows a Federal judge to do something, leaves a
great deal of room for doubt and for many different opinions as
to the right answer. Put another way, the proposed legislation
could be read alternatively as immunizing the Federal officer
or agency from ever having to provide discovery prior to suit.
That nicely frames the key problem: What reasonable policy
justification would warrant granting blanket immunity in this
context?
In the Brown and Williamson case out of the D.C. circuit,
which appears to be a model on which this proposed legislation
is based, at least in part, when a subpoena was issued to
Federal officers in connection with a pending State case, the
court allowed the proceedings to be removed and then proceeded,
quite correctly, to decide whether a valid defense existed that
would excuse the Federal officer's compliance with the State
order in that case.
The same result should attend when the issue is pre-suit
discovery. If a valid defense would trump, in whole or in part,
the taking of such discovery, then that defense can and should
be presented to the Federal judge to rule on.
Moreover, if a court were to read the ambiguous language
now in the bill as precluding a Federal judge from ever
allowing pre-suit discovery when it is not authorized by rule
27, then section 1442 would be unique. Congress has never
before passed a law that, in allowing removal of a case to
Federal court, had the simultaneous effect of terminating it.
If the proposed legislation is clarified--Mr. Chairman,
shall I continue? I am almost finished.
Mr. Johnson. Yes.
Mr. Hoffman. Mr. Chairman, if the proposed legislation is
clarified to make clear that its purpose is only to allow
Federal officers and agencies to be able to get into Federal
court, as Mr. Coble was saying in his opening remarks, and then
to allow the Federal judge to rule upon whether a Federal
defense trumps, then I believe 1442 will operate in the same
manner as every other removal statute. It will change the
forum, but not necessarily the final outcome of the case.
Thus, and in conclusion, I believe the proposed legislation
should expressly clarify that after removal, a Federal judge
has authority to decide whether to allow the pre-suit discovery
to go forward, subject of course to whatever Federal defenses
may apply. Thank you.
Mr. Johnson. Thank you Professor Hoffman.
[The prepared statement of Mr. Hoffman follows:]
Prepared Statement of Lonny Hoffman
__________
Mr. Johnson. And last but not least, we will hear from
Professor Hellman.
TESTIMONY OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF
PITTSBURGH SCHOOL OF LAW, PITTSBURGH, PA
Mr. Hellman. Thank you, Mr. Chairman. Is this microphone
on?
Thank you, Mr. Chairman. As you have heard, H.R. 5281 deals
with two aspects of the Federal officer removal statute: the
kind of cases that can be reviewed and an appellate review of
remand orders.
I will start with the latter. I agree with the other
witness that appellate review should be available when a
district court remands a case that has been removed under
section 1442. H.R. 5281 accomplishes this with a simple and
straightforward fix, and I support that aspect of the bill
wholeheartedly.
Clarifying the kind of proceedings that can be removed is
not such a simple task. And I will begin by outlining the
reasons why this is so. When considering revisions to the
Federal officer removal statute, it is only natural to look at
the law from the perspective of the Federal officers and
agencies who will be invoking it. But there is another
perspective that is equally important; that of private
citizens, state officials, and other parties who as litigants
in a State court proceeding suddenly and unwillingly find
themselves transported into Federal court.
Now, that is not all, because as you are aware, the Federal
officers and agencies do not have to ask any court, State or
Federal, for permission to remove. The moment that the removing
party files a copy of the notice of removal with the State
court, the case is removed; and it won't return to the State
court unless and until the district court issues an order of
remand.
That can impose substantial burdens on the other parties.
And among other things, those parties are often represented by
lawyers who are inexperienced in Federal practice and
unfamiliar with the provisions of the judicial code that govern
removal.
Against that background it is particularly important that
the removal statutes be drafted with the greatest possible
clarity and directness. They should also be drafted in a way
that serves Federal interests, without interfering
unnecessarily with the course of litigation in the State court.
I have some concerns about H.R. 5281 on both scores. The
amended statute is not as clear and direct as it could be. In
my written statement, I recalled attention to some particular
concerns about how the amended statute would work. Professor
Hoffman has raised some of those same concerns and others as
well. I believe that those should be dealt with in the
legislation itself and not left to be worked out by litigation
in the future.
I also have a concern that H.R. 5281 in its present form
does go somewhat further than it needs to in defining the kind
of State court proceedings that can be removed. And in
particular, the bill appears to allow removal of the entire
civil action or criminal prosecution, even when the Federal
officer is not a party and only one segment of the proceeding
concerns any Federal interests.
Now, we may have some disagreement here about whether the
bill ought to be read that way, but we do seem to agree that
only the Federal aspect ought to be removable.
So how should that be dealt with? In my statement I suggest
a couple of approaches. One would be to authorize a separate
civil action in Federal court, an action for a protective
order. The second is to write the removal statute in such a way
as to distinguish between stand-alone proceedings and ancillary
or embedded or collateral proceedings. There are a number of
terms for that.
I have something of a preference for the separate
proceeding in Federal court. I realize, though, that would be
something of an innovation. And in my statement I have
suggested some language for an approach that accomplishes the
purpose within the removal framework. And basically, rather
than trying to define civil action and criminal prosecution to
include proceedings that do not fit easily into either of those
categories, the legislation should directly define the
proceedings, other than conventional civil actions and criminal
prosecutions, that can be removed and it should distinguish
between stand-alone proceedings like those in Price against
Johnson, or embedded and ancillary proceedings like those in
Stallworth.
I would welcome the opportunity to work with the
Subcommittee and its staff to fine-tune this important
legislation. Thank you.
Mr. Johnson. Thank you, Professor Hellman.
[The prepared statement of Mr. Hellman follows:]
Prepared Statement of Arthur D. Hellman
__________
Mr. Johnson. We do have votes. We have got about 10 minutes
left before the time for voting closes, but I think in the
interest of being expeditious, I will go ahead and ask my
questions now. And when we return, we will proceed with the
Ranking Member's questions.
My first question is for the panel. There is a clear
circuit split on whether any judicial action including pre-suit
discovery request, constitutes a, quote, civil action, for
purposes of the Federal officer removal statute. What evidence
is there in the legislative history of section 1442 supporting
either interpretation?
Mr. Nathan. I will take that first, Your Honor--Mr.
Chairman.
Mr. Johnson. Your Honor is fine.
Mr. Nathan. I am expecting you will be going to the bench
soon.
The legislative history of 1948 of the Federal removal
statute as a whole makes clear that when the Congress decided
to use the word ``civil action,'' they were trying to condense
all kinds of proceedings into a single word, single phrase,
``civil action.'' And the legislative history makes clear they
were incorporating many different kinds of petitions and cause-
of-action suits and proceedings under the words ``civil
action.''
So it is our view that that legislative history from 1948
makes clear that the original intent of Congress in
consolidating the Federal officers removal statute meant it to
include all kinds of proceedings, including pre-suit discovery
and subpoenas. And I think that the evidence of that is that
within the Federal rules itself, there is the concept, again,
of civil action; and in Federal rule 27, there is a possibility
of pre-suit discovery in very limited circumstances.
And so the contemplation was when they said civil action:
They meant anything that starts the proceeding against a
defendant for any kind of matter, whether it is for money,
injunction, or even discovery.
So I think that the 1948 legislation is pretty clear
history that this is a clarification of what was intended by
Congress and not a change from that.
Mr. Hoffman. I am not sure I would read the history the
same way. But maybe what I would say in direct answer to your
question is that I think that the change to allow certain
matters that are relating to Federal officers to come within
the ambit of 1442 under this definition of ``civil actions'' or
``criminal proceedings,'' that there is nothing inappropriate
about that, and that what you are seeing with the courts, Mr.
Johnson, is that they are struggling to try to say what is this
animal. It isn't a lawsuit, it isn't what we normally think of
as a civil action. And most of them have concluded that it is
not. There actually are few that concluded that it is.
And so for that change to take effect, for the Congress to
enact a law that would simply deem these to be within the orbit
of 1442, strikes me as both eminently defensible and wise. But,
again the devil is in some of these important details that we
raised here today.
Mr. Hellman. I would just add that the pre-suit proceedings
I think come very easily within a functional definition, and it
is very striking that in Price against Johnson, the district
court, although rejecting the removal, said the petition in
that case had all the indicia of a civil proceeding--a civil
proceeding--it looked like a civil action. So I don't think
this legislation is a radical change at all; it is just
clarifying what the law ought to be.
Mr. Johnson. Thank you.
Ms. Brinkmann, I want to thank you for DOJ's support of the
Removal Clarification Act. Can you tell us how pre-suit
discovery has impacted Federal officials at the Department of
Justice, and are there any suits against the Administration
that are currently pending that passage of this bill will have
an effect on?
Ms. Brinkmann. Certainly, Your Honor. There are a wide
range of examples of Federal officers served with subpoenas
because of their involvement, whether it is law enforcement
investigations or other matters, that then find their way to
State court. For example, officials at the IRS, the National
Safety Transportation Board, the four services, Veterans
Affairs, also law enforcement, FBI, DEA agents; some of the
reported cases, for example, an official attorney in a Federal
judiciary also I would point out.
It is important here, in order to enforce the right that
Congress intended to have the Federal courts decide these
questions.
And I wanted to mention one thing Professor Hoffman brought
up. We don't experience or envision having discovery
relitigated in Federal court. Generally our experience is when
there is a removal in a situation with a subpoena, the Federal
court exercises derivative jurisdiction and looks to the
question of sovereign immunity. Generally, in many instances,
Federal officials and agencies would be immune from the
subpoena because there hasn't been a waiver of sovereign
immunity.
In addition to Federal court, then the next question would
be--just as it would be in the State court--for the executive
branch, there is often regulations that are called ``touhy''
regulations after the Supreme Court case that upheld the
constitutionality of this type of provision. But there are
regulations that set forth the scope and procedures to be
followed when seeking information from an executive branch
official. And the normal course would be the most common, when
there are regulations like that. But the subpoena matter would
be dismissed, and the appropriate action there is to bring a
civil action, just reported in the Administrative Procedures
Act. So I just wanted to clarify that aspect of our experience
and how that normally plays out.
Mr. Johnson. Thank you, Ms. Brinkmann.
Mr. Nathan, the chief purpose of the removal statute is to
prevent harassment of Federal officers. How broad would you
define harassment in this context? And in your experience as
General Counsel to the House of Representatives, are State
court proceedings often used to harass Members of Congress?
Mr. Nathan. I don't know about often, but it happens too
many times to be justified. There are instances. The classic
example of that is that a person comes into a Member's office,
perhaps district office, or even the office in D.C., causes
some disturbance and is then prosecuted for disturbing the
peace. And the defendant seeks to subpoena the Member to ask
the Member questions about the Member's policy positions which
led to the protest in the first place.
It really has no bearing on the disturbance of the peace
matter, and it is a way to either harass or at least to impose
on the Member. And we have seen that on both sides of the
aisle, on all kinds of issues, and in many State courts
throughout the country.
And in the two pre-suit discovery matters that were brought
in the Fifth Circuit with differing results, I would say in
both cases those were abusive efforts that were not really
looking for the merits for potential lawsuits.
In the one case, the potential of the claim was they wanted
to see whether what the Congresswoman had said would justify a
defamation action. In the first place, what the Congresswoman
had said was already a matter of public record. It was on a
recording that was available to the potential plaintiff.
And in the second place, if a defamation suit had been
brought, it would have been brought and removed to Federal
court. And since under the Federal Torts Claims Act, under the
procedures there, the United States Government would have been
substituted. Sovereign immunity has not been waived for
defamation actions, and the suit would have been dismissed.
So there was really no real reason for the potential pre-
suit discovery. This was done for some ulterior motive, maybe
dealing with the particular Congresswoman or with a criminal
investigation of the petitioner which was then underway.
And similarly, in the case involving Senator Landrieu's
staff, the effort was made to circumvent an administrative
proceeding which did not allow the discovery which was being
sought.
So there are a number of instances in which these matters
have been abused, and I think it is appropriate that the
Federal courts decide these questions of the discovery that is
either going to be during the proceeding or preceding the
proceeding.
Mr. Johnson. Thank you, Mr. Nathan. We have four votes
pending. It will take about 20 to 30 minutes for us to get back
and during that time we will be in recess.
[Recess.]
Mr. Johnson. Thank you, ladies and gentlemen. We are back
in session and we left off with me ending my questions, and so
next we will hear from our Ranking Member, the distinguished
Mr. Howard Coble.
Mr. Coble. Thank you, Mr. Chairman. I apologize to the
panel. I had to be called to testify at another Judiciary
Subcommittee hearing, and I apologize to you for that. But we
have examined your questions--testimony.
Mr. Nathan, how many section 1442 cases does your office
deal with in an average year?
Mr. Nathan. I don't really have a number at my fingertips,
but I would say with respect--the majority of them are subpoena
cases as opposed to recent discovery cases.
Mr. Coble. Is your mike on, Mr. Nathan?
Mr. Nathan. Ah, thank you. Sorry for that. I don't really
have the numbers in answer to your question. We can obviously
check that out and provide it for the record; but it is a
substantial number of cases in State courts that we have to
seek removal for, both for lawsuits against Members and also
for subpoenas for testimony.
Mr. Coble. Did you sense any hostility or resentment for
State courts and State bars over Federal removal?
Mr. Nathan. We have not seen any evidence of such
hostility. In the first place, as I mentioned, we are only
seeking removal. When a Member hasn't been sued, we are only
seeking removal of that part of the proceeding that relates to
the subpoena for testimony or documents of the Member or the
staff.
And of course the Federal courts are greatly respected and
fair to all the parties before them, so there is really no
cause for the concern. And once the matter is over, the matters
on the merits go back to the State court when the Member is not
a party to the lawsuit.
Mr. Coble. I thank you, Mr. Nathan.
Mr. Chairman, we received outstanding witness testimony for
this hearing, and I am not averse to marking up the bill today,
but I think we would do ourselves and the witnesses a
disservice if we don't take their testimony into account at
some point.
The witnesses, let me ask you, will you all be willing to
work with our staffs on a possible manager's amendment that
could be taken up at the full Committee? I really believe we
really need to address some of the issues, particularly that
Professors Hellman and Hoffman have raised.
Mr. Nathan. Absolutely. We are willing to work, eager to
work with the Committee, the Subcommittee, and the staff to
improve this draft legislation.
Mr. Coble. I thank each of the witnesses. Mr. Chairman I
yield back.
Mr. Johnson. Thank you, Mr. Ranking Member. I concur
precisely in your last question and the responses thereto. So I
would like to thank you all for your testimony, and, without
objection, Members will have 5 legislative days to submit any
additional questions, which we will forward to the witnesses
and ask that you answer as promptly as you can to be made a
part of the record. Without objection, e record will remain
open for 5 legislative days for the submission of any other
additional materials.
I thank everyone for their time and patience. The markup of
H.R. 5281 will follow this hearing. This hearing of the
Subcommittee on Courts and Competition policy is adjourned.
[Whereupon, at 3:50 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard Coble, a Representative in
Congress from the State of North Carolina, and Ranking Member,
Subcommittee on Courts and Competition Policy
Mr. Chairman, I appreciate your calling this legislative hearing
today. The bill before us, H.R. 5281, addresses an obscure but
important issue that touches on federalism and the balanced
relationship between the national government and the individual states.
The ``Removal Clarification Act of 2010'' primarily amends Section
1442 of title 28 of the US Code. This is a statute that allows federal
officers, under limited conditions, to remove cases filed against them
in state court to US district court for disposition.
The purpose of Section 1442 is to deny state courts the power to
hold a federal officer 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 under our Constitution. Federal officers or
agents, including congressmen, shouldn't be forced to answer in a state
forum for conduct asserted in performance of federal duties.
It's my understanding that US district courts have inconsistently
interpreted the statute. Most recently in March, the Fifth Circuit
ruled that the federal removal statute does not apply to a Texas state
law involving pre-suit discovery. Since 46 other states have similar
laws, the House General Counsel's Office is concerned that more federal
courts will adopt the Fifth Circuit's logic.
The problem occurs when a plaintiff who contemplates suit against a
federal officer petitions for discovery without actually filing suit in
state court. Technically, according to the Fifth Circuit, this conduct
only anticipates a suit; it isn't a ``cause of action'' as contemplated
by the federal removal statute.
The problem is compounded because a separate federal statute,
Section 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.'' Judicial review of
remand orders under Section1447 is limited and has no application to
suits involving federal officers and Section 1442. This means remanded
cases brought against federal officers under these conditions cannot
find their way back to federal court.
This result is at odds with the history of the federal removal and
remand statutes that we will examine today. That's why I'm an original
cosponsor of H.R. 5281. I look forward to interacting with the
witnesses this afternoon, and I intend to vote for the bill when we
proceed to markup at the conclusion of the hearing.