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House to vote on removal legislation

On the House suspension calendar today is H.R.5281, the Removal Clarification Act of 2010, sponsored by Rep. Hank Johnson (D-GA). The CRS bill description:

Amends the federal judicial code with respect to removal to an appropriate U.S. district court from a state court of: (1) any civil action against the United States or a federal agency or officer, or specified others; or (2) a criminal prosecution commenced in a state court against any of them.

Declares that civil actions and criminal prosecutions include any proceeding in which a judicial order, including a subpoena for testimony or documents, is sought or issued.

When introducing the legislation, Rep. Johnson said the bill was meant to reaffirm the ability of a federal officer being sued in his official capacity to remove the litigation from the state to federal courts in certain cases, to wit:

The ambiguity over whether a Federal officer can invoke the removal statute during presuit discovery was presented in a recent case involving Republican [sic] EDDIE BERNICE JOHNSON, who was the subject of a pre-suit discovery petition. Republican [sic] JOHNSON removed the action from State court on the basis of the removal statute. However, the Federal court held that the pre-suit discovery proceeding did not constitute a ''civil action or criminal prosecution'' for purposes of the statute and remanded the petition to State court. The bill I introduce today would have permitted such removal.

The suspensions calendar is usually reserved for non-controversial items, and cosponsors include the chairman and ranking member of the House Judiciary Committee, Reps. John Conyers (D-GA) and Rep. Lamar Smith (TX). the only association to have reported lobbying on the legislation is the American Association for Justice, the trial lawyers lobby.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.