When a county commissioner in Dallas wanted to question Rep. Eddie Johnson (D-Texas) about statements she made about him to the press, he filed court papers in the state court. U.S. House of Representatives lawyers grabbed the petition and moved it to the U.S. District Court for the Northern District of Texas with the hope of getting it quashed.
But a federal judge in Texas found that the state court was the proper venue — a ruling upheld by the U.S. Court of Appeals for the 5th Circuit, which said it didn’t have jurisdiction to overrule the trial judge.
Now, the Justice Department and Capitol Hill lawyers are pushing to change the law to eliminate what they say is an ambiguity that allow subpoena and presuit discovery matters involving federal officials to be handled by state courts. On May 12, less than two weeks after the 5th Circuit declined to hear the Johnson appeal en banc, a bill was introduced in the House that would broaden the jurisdiction of federal judges in matters involving federal employees.
One of the bill’s chief backers is House general counsel Irvin Nathan, who said litigants use state courts to harass federal officials with subpoenas or discovery requests.
“It happens too many times to be justified,” Nathan said at a May 25 hearing on the legislation.
Mark Johnson, the attorney for Dallas County Commissioner John Wiley Price, said he was not aware of the effort on Capitol Hill to change the law. “I sure would like to have known about it,” said Johnson, a solo practitioner in Addison, Texas. Price wants to take a presuit deposition of Rep. Johnson while considering whether to file a defamation claim against her over comments the congresswoman made in a dispute involving a port project in Dallas. The matter is heading back to state court.
Federal law allows the government to move any civil action or criminal prosecution where the defendant is a federal officer into the federal court system. But language in the law lacks clarity, Justice Department officials say, creating a divide among federal district judges over whether subpoena and presuit discovery matters — in cases where there is no federal defendant — can be removed to federal court.
Justice Department and House attorneys want to clarify the law so that “civil action” includes any proceeding in which a subpoena for testimony or documents is sought or issued. A change in the law would make it harder for attorneys who practice on the state level to litigate subpoenas and presuit discovery there.
The House Judiciary courts and competition policy subcommittee heard testimony May 25 on proposed legislation called the “Removal Clarification Act,” which was introduced by Rep. Hank Johnson (D-Ga.). A hearing before the full committee has not been scheduled. “It’s important here in order to enforce a right that Congress intended to have federal courts decide these questions,” Justice Department attorney Beth Brinkmann, the head of the Civil Division’s appellate section, said at the House hearing. Brinkmann said federal officials are unfairly being shut out of federal court.
So far there hasn’t been any public opposition to — or outside support of — the legislation. The National Association of Criminal Defense Lawyers and the plaintiffs’ group American Association for Justice have neither supported nor opposed the amendment. The American Bar Association has not weighed in.
Two legal scholars who have examined the bill, and who testified at the House hearing, said they generally support a change in the law. But the bill presented at the hearing fails to address questions about whether federal judges will have jurisdiction to rule on a particular state dispute where there is no comparable federal law. “There is a tendency to look at this problem from the perspective of members of Congress and federal officers,” said Arthur Hellman of the University of Pittsburgh School of Law, who studies federal courts and civil procedure. “I think it’s right that other litigants could be affected in a rather dramatic way, particularly if this means the entire case is removed to federal court.”
Hellman and Lonny Hoffman of the University of Houston Law Center, who also testified, noted that the proposed legislation could provide greater immunity to federal officials. Federal judges have largely quashed subpoenas that have been removed from state courts.
“The proposed legislation could be read as immunizing the federal officer or agency from ever having to provide discovery,” Hoffman said at the hearing. “What reasonable policy justification would warrant granting blanket immunity in this context?”
Mike Scarcella can be contacted at firstname.lastname@example.org.