it is to be assumed that the United States Attorney is not acting wrongfully, but in some way to protect the interests of the United States, unstated, and remote from the case itself, though they be. This is his right, not to say his duty, as where, for instance, he represents an official under attack, such as the Chief Justice of the Court of Claims of the United States, as in Booth v. Fletcher, 1938, 69 App.D.C. 351, 101 F.2d 676, or, as is more usual, a subordinate employee, such as a mail truck driver. But in either case, when, as here, the petitions for removal are in the name of the individual, the petition is not one filed 'in behalf of the United States,' but in behalf of the individual, the removing petitioner, the party defendant against whom alone costs and disbursements on removal may be ordered by the Court. Hence the removal statute itself does not relieve the removing petitioners, Groves and Kiewit, from the duty of filing the removal bond.
However, subsequent to the oral argument, it was, for the first time, suggested in a supplemental brief that no removal bond need be filed by reason of an entirely different statute.
It is stated solely in this brief, and without support in the record, that Groves and Kiewit were 'acting under the direction of' a department or agency of the United States in filing the removal petition, and thus no 'security for * * * costs' could be required of such corporate defendants themselves. Again this Court cannot base its action upon an off-the-record statement. But of course this statute is in pari materia with the removal statute, and a bond for costs can hardly be required of a party not subject to costs.
This latter statute was a part of the revision of the entire old Judicial Code, specifically of its Section 870.
Wherever this revision was of substance, and other than of phraseology, the revisers were careful to note same in writing under the respective sections, these notes being before the Congress at the time of the adoption of the new Code. Therefore they were presumptively adopted by the Congress in the light of such notes, and in accord with the intention of the revisers. Ex parte Collett, 337 U.S. 55, 61 (1948). Section 870 provided that security for costs should not be required from the same parties stated in the present statute 'either to prosecute said suit, or to answer in damages or costs.' In other words, the old statute prevented the requirement of costs from such parties, including 'any party acting under the direction * * * of any department' of the Government, whether such party was plaintiff or defendant. While the revisers note carefully all other changes in substance made by them in Section 870, they note no change in substance as to changing this protection of such party defendants from the requirement of security for costs, though they do note that there were other changes made in mere phraseology. Since the present statute covers the requirements of 'security for damages or costs' generally, without allusion to whether such party is acting as plaintiff or defendant, it is therefore clear that the revisers intended, and consequently the Congress intended, to retain, by the above general language in the new statute, as a mere change in phraseology, the substance of Section 870, in relieving the same parties from furnishing security for costs, when acting as defendants, as well as plaintiffs. Thus the new statute applies to Groves and Kiewit in the removal petition here, if, in such removal, they were 'acting under the direction of any such department or agency'. Furthermore, since the removal statute does not require any such proof to appear in the petition, it may be made later than the removal, if made with reasonable expedition.
It would therefore seem that the removing defendants, Groves and Kiewit, should be given an opportunity to establish on the record that they were, in filing the removal petition, 'acting under the direction of' some Government 'department or agency'. Further, the present removal petition should be verified with reasonable expedition.
An order may accordingly be entered continuing the motion for remand, pending prompt action by the removing defendants -- Groves and Kiewit -- Consistent with this opinion.