Petition for Writ of Certiorari — International Primate Protection League v. Administrators of Tulane Ed. Fund

90-8 9 '

NO.

In the ) maa

Supreme Court of the United States

OCTOBER TERM, 1990

INTERNATIONAL PRIMATE PROTECTION

LEAGUE AND ITS MEMBERS, PEOPLE FOR THE

ETHICAL TREATMENT OF ANIMALS AND ITS

MEMBERS, ALEX PACHECO, AND LOUISIANA IN

SUPPORT OF ANIMALS AND ITS MEMBERS

Petitioners

V.

ADMINISTRATORS OF TULANE EDUCATIONAL

FUND, NATIONAL INSTITUTES OF HEALTH AND

THE INSTITUTES FOR

BEHAVIOR RESOURCES, INC.

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MARGARET E. WOODWARD

BAR NO. 13677

610 Poydras St., Suite 318

New Orleans, LA 70130

Phone: 504-525-9538

Attorney For Petitioners Interna-

tional Primate Protection League

and its Members, People for the

Ethical Treatment of Animals

and its Members, Alex Pacheco,

and Louisiana in Support of

Animals and its Members

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

-~ sf

i

QUESTIONS PRESENTED FOR REVIEW

Whether the Fifth Circuit properly ruled that a

federal agency may remove to federal court a non-

federal action brought against it in state court.

28 U.S.C. Sec. 1442 provides that an action

against an officer is removable and there are con-

flicting decisions from other circuits that a suit

against a government agency, as distinguished

from a suit against a federal official, is not

removable under this section.

Whether the Fifth Circuit properly ruled that the

National Institutes of Health had sufficient in-

terest in this action to remove it to federal court,

based on the NIH’s untested assertions of in-

terest and without allowing the discovery ordered

by the district court on this issue to proceed.

Whether the Fifth Circuit properly ruled that

animal protection groups lacked standing to pro-

ceed with their state law claims without con-

sideration of the nature and sources of the claims

asserted.

ii

LIST OF PARTIES

International Primate Protection League and

Its Members - Petitioner

People for the Ethical Treatment of Animals

and Its Members - Petitioner

Alex Pacheco - Petitioner

Louisiana in Support of Animals and Its

Members - Petitioner

Administrators to Tulane Educational Fund -

Respondent

National Institutes of Health - Respondent

Institutes for Behavior Resources, Inc.

Respondent

iii

TABLE OF CONTENTS

Page

Questions Presented for Review..................... i

Nee ee te eeeeeees ee

Table of Contents... .......................... iii

Table of Authorities..... ......................... Vv

Sas osc vcccccccceccccccscces: 2

Statement of Jurisdiction. ...................... 2

EE I 2

Statement of the Case............................. 3

Reasons for Granting the Writ ..................... 6

I. The Fifth Circuit’s Ruling That NIH, A

Federal Agency, Could Remove This

Nonfederal Action to Federal Court Expands

Federal Jurisdiction Beyond The Plain

Language of the Removal Statute, Creates A

Conflict in the Circuits, and Does Violence to

State Court Enforcement of State Law......__. 6

A. The Removal Statute Did Not

Authorize the Exercise of Federal Jurisdic-

ccs web eedsccccces: 6

B. The Fifth Circuit Has Created a Split in

EE 9

C. This Action Presents Issues of State

Law That Are Within The Peculiar Province

of Louisiana State Courts to Resolve....... ll

D. The Fifth Circuit Improperly Usurped

the Role of the District Court and Engaged

in Fact-Finding in Ruling That NIH Had

Sufficient Interest in This Action to

Authorize the Exercise of Federal

EE 13

Il. The Fifth Circuit Erred In Finding That Plain-

tiffe Lacked Standing ....................«. 18

iv

TABLE OF CONTENTS (continued)

A. The Court Has Not Adequately Ad-

dressed the Issues Presented.............. 18

B. The Fifth Circuit Erred in Finding That

Plaintiffs Lacked Standing to Maintain Ali

Their Claims Against NIH................ 21

ES a ent ueresdeeeenees 25

ET ERT LDR MM Ree Ae 26

APPENDIX

A. Decision of Fifth Circuit Court of Appeals,

ea ont cae eeaa see eae Sane ss A-1

B. Temporary Restraining Order of Federal

District Court, January 6,1989.............. A-16

C. Order Denying Motion to Remand and Motion

to Dismiss, February 2,1989................ A-17

D. Order Denying Second Motion to Dismiss,

eee ee eee, ee A-18

E. Order Denying Motion for Stay and Motion for

Indicative Ruling, May 3,1989.......... ..A-19

F. Order Denying Motion to Compel ‘Magistrate),

pS ere re re A-20

G. Order Denying Motion to Dismiss poner

August 9, 1990.......... oe ee a eR eee A-22

H. Order Denying Motion to Compel (District

Court), September 13,1989... A-24

I. Order Denying Petition for Rehearing, April

rr ee. ee re ia Ses eae 66 i A-24

J. Order Denying Motion for Stay, May 2, 1990. A-26

K. First Notice of Appeal by NIH, _ 17,

Cisne deka a esacee aahe ie _... A-29

L. Second Notice of Appeal by NIH A-29

cas oo vad bee wie ehaea ks ) _.A-30

Vv

TABLE OF AUTHORITIES

CASE Page

Bazley v. Tortorich, 397 So.2d 475 (La. 1981)........ 19

Brewer v. Department of Housing & Urban Dev.,

508 F.Supp. 72, 74 (S.D. Ohio 1980).......... 10

C. H. v. American Red Cross, 684 F.Supp. 1018

IN Sins Vawsecdees sadawncs ay cas rote

California v. Bozarth, 356 F.Supp. 667 (N.D. Cal.

Peo aede corded nwiaawesd ech kane aakibe see's 10

City of Alma v. Bell, Galyardt & Wells, Inc., 606

F.Supp. 686, 689-690 (D. Neb. 1985) ....._... 7,10

Dozier v. Ford Motor Company, 702 F.2d 11839,

1194 (D.C. Cir. 1983)(Scalia, J.).......... —

Garden District Property Owners Association v. Ci-

ty of New Orleans, 98 So.2d 922 (Orl. App. 1957),

SD Ge is ED hn vine coc wntcccncincosers: 19

Gensplit Finance Corp. v. Foreign Credit Ins.

Ass'n., 616 F.Supp. 1504, 1509 (E.D. Wis. 1985) _. 10

Harlem River Produce Co. v. Aetna Cas. & Sur. Co.,

257 F. Supp. 160 (S.D.N.Y. 1965)............... 8,10

Humane Society of Rochester v. Lyng, 633 a

480 (W.D.N.Y. 1980) ........

IMFC Professional Servs. v. Latin Am. Home

Health, Inc., 676 F.2d 152, 155-56 (5th Cir. Unit

I Ae tee es glo ce eee eee oe ery Le 2 10

International Primate Protection League v. Ad-

ministrators of Tulane Educational Fund, et al,

rendered on March 8, 1990, is reported at 895

eri. Von tees Cua ea one eu au awe veks 2

International Primate Protection League v. In-

stitute for Behavioral Research, Inc., 799 F.2d

934 (4th Cir. 1986), cert. denied, 481 U.S. 1004,

107 S.Ct. 1624 (1967) .............. ee FF

vi

TABLE OF AUTHORITIES (continued)

CASE Page

James River Apts. v. FHA, 136 F.Supp. 241 (D.Md.

rare tee ee nod oie cw es 10

KCPO Employees Credit Union v. Mitchell, 421

f © ff § 9 Beer rere 10

Lance International Inc. v. Aetna Cas. & Sur. Co.,

264 F.Supp 349 (S.D.N.Y. 1967)................ 8,10

Lejeune v. Rayne Branch Hospital, 556 So.2d 559

FRR SY Ee Ee 19

Lowe v. Norfolk & Western Railraod Company, 529

OE ED wh vcs cow vca bewecces ene. 10

Lovell Mfg., Div. of Patterson — Erie Corp. v. Ex-

port — Import Bank of United States, 843 F.2d

a rr ee 7,9,10

M-V Enterprises, Inc. v. North Kansas Savings

Ass'n, 628 F.Supp. 1261 (D-Kan. 1986) ............ 9

Michigan v. Banning, 88 F.Supp. 449, 450 (E.D.

a ethan een kab e awk ws ee

Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct.

a re Lalas sei wla we ® ee

Monal Construction Co. v. Brookside limited Part-

nership, 539 F.Supp. 478 (W.D.D.C. 1982)... . ..10

New Jersey v. Moriarity, 268 F.Supp. 546 (D. N.J.

el eee es ae eee ai 4} 6.4 9 6 8

Physicians Committee for Responsible Medicine, et

al. v. Louis D. Sullivan, in his official capacity of

Secretary of Health and Human Services, et al,

lea ktmaeeees bees 5

Ramsey River Road Property Owners v. Reeves,

396 So.2d 873 (La. 1981)........ yo. eee eee 19

Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361

ee aaa ans 4s eee,

vii

TABLE OF AUTHORITIES (continued)

CASE

Smith v. City of Picayune, 795 F.2d 482 (5th Cir.

i nh deena haeenehdweid das 665.60 ONa Rae oo 4,

Stewart Sec. Corp. v. Guaranty Trust Company, 597

F.2d 240, 241 (10th Cir. 1979) ................

Taub v. State of Maryland, 296 Md. 439, 482A. 2d

Pa Retard ha he ee ee al

The Humane Society of the United States v. Black,

No. 81-2691 on the docket of the United States

District Court for the District of Columbia. .. _.

Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336, 352-53, 96 S.Ct. 584, 593-94 (1976). _.

Township of Middletown v. N/E Regional Office

USPS, 601 F.Supp. 124 (D.N.J. 1985)..........

United States v. SCRAP, 412 U.S. 669, 93 S.Ct.

ae cee etre Do. we

Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464,

472, 102 S.Ct. 752, 758 (1962).................

Voisin's Oyster House, Inc. v. Guidry, 799 F.2d at

ARS cee aki ob a nednd oows bub eeubvaecces

Warth v. Seldin, 422 U. S. 490, 500, 95 S.Ct. 2197,

a ee cies dtd OY uae k beeen +e O,

Willingham v. Morgan, 395 U.S. 402, 406-407, 89

S.Ct. 1813, 1815-1816 (1969)................

Woodward v. Turnage, 646 PF. Supp. 219, 221 (E.D.

Es co odd bb a Peale d hae deed 6 ke neeee es

Zenith Radio Corp. v. Mesdbins Research, Inc., 395

U.S. 100, 123, 89 S.Ct. 1562, 1576 (19969) ...

Page

..10

l

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

INTERNATIONAL PRIMATE PROTECTION

LEAGUE AND ITS MEMBERS, PEOPLE FOR THE

ETHICAL TREATMENT OF ANIMALS AND

ITS MEMBERS, ALEX PACHECO, AND LOUISIANA

IN SUPPORT OF ANIMALS AND ITS MEMBERS

Peti: ers

Vs

ADMINISTRATORS OF TULANE EDUCATIONAL

FUND, NATIONAL INSTITUTES OF HEALTH

AND THE INSTITUTES FOR BEHAVIOR

RESOURCES, INC.

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioners, International Primate Protection

League and its Members, People for the Ethical Treatment

of Animals and its Members, Alex Pacheco, and Louisiana

in Support of Animals and its Members, respectfully pray

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeal for the Fifth

Circuit, entered in the above-entitled proceeding on March

8, 1990. '

2

OPINION BELOW

The opiniow of the United States Court of Appeals

for the Fifth Circuit in International Primate Protection

League v. Administrators of Tulane Educational Fund, et

al, rendered on March 8, 1990, is reported at 895 F.2d 1056,

and is set forth in the Appendix at A-1 through 16.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

on March 8, 1990. (A-1). The order denying a petition for

rehearing was entered on April 13, 1990 (A-24). This

Court’s jurisdiction is invoked under 28 U.S.C. Sec.

1254(1). However, because the jurisdiction of the lower

courts is subject to question, See Issue J. infra, this

Court’s jurisdiction (except to decide the jurisdictional

question) is necessarily at issue as well. cf, Mitchell v.

Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165 (1934).

STATUTE INVOLVED

28 U.S.C. Sec. 1442(a)(1) provides in pertinent part:

(a) A civil action or criminal prosecution com-

menced in a state court against any of the follow-

ing persons may be removed by them. . .

(1) any officer of the United States or any

agency thereof, or person acting under him,

for any act under color of such office or on ac-

count of any right, title or authority claimed

under any act of Congress for the apprehen-

sion or punishment of criminals or the collec-

tion of the revenue.

3

STATEMENT OF THE CASE

This case arises out of the spirited debate surroun-

ding the “Silver Spring Monkeys’’, former research

animals whose release the animal protection community

has sought since 1981, when the experiments to which they

had been subjected were terminated for unjust 'fiable cruel-

ty. The expeiments had been conducted by a private

research facility, the Institute for Behavioral Research

(“IBR’’), under a grant from the National Institutes of

Health (‘‘NIH’’). Maryland police raided the laboratory,

seized the monkeys, and instituted a criminal prosecution

of Dr. Taub, the principal investigator conducting the

experiments.! The monkeys were initially turned over to

some of the plaintiffs for safe-keeping, and later were

‘ delivered by them to NIH, pursuant to a court order

vesting temporary custody of the animals in NIH during

the prosecution of Dr. Taub. Long after the order expired,

NIH retained custody of the monkeys with the consent of

their owners, IBR.

From the time the animals were seized, the humane

community sought to insure that they would not be further

abused or needlessly destroyed. Animal protection groups

sued to protect the monkeys’ interests under the federal

Animal Welfare Act, but were found not to have standing

to enforce that statute. /nternational Primate Protection

League v. Institute for Behavioral Research, 799 F.2d 934

(4th Cir. 1986).

|. Dr. Taub was convicted of multiple counts of animal cruelty. His con-

victions were later set aside because of questions concerning the ap-

plicability of the anti-cruelty statute to scientific research. Taub v. State

of Maryland, 296 Md. 439, 482 A. 2d 819 (1983). The Maryland

legislature later amended the statute to provide clearly for application

to researchers. Md. Code, Art. 27, Sec. 59 (amended 1984).

4

In 1986, IBR and NIH revealed they had no scien-

tific use for the animals, present or planned; and their

release seemed imminent. More than 300 members of Con-

gress petitioned NIH to turn the Silver Spring Monkeys

over to an animal sanctuary. NIH promised members of

Congress that the animals would never be experimented

upon, that they would be resocialized, that their crippled

arms would be amputated, and that they would not even be

moved without advance warning. Shortly thereafter, NIH

had the monkeys secretly transferred to the Delta Regional

Primate Research Center, a branch of Tulane University of

Louisiana. Within a year of the monkeys’ transfer, column-

ist Jack Anderson exposed a plan to silence the ongoing

controversy by killing the monkeys after transferring title

to Tulane to spare NIH political embarrassment. In the

uproar following this expose, five of the primates were

moved to the San Diego Zoo. This litigation involves the

four surviving Silver Spring Monkeys housed at Delta.”

From the outset, NIH’s resistance to releasing the

monkeys was predicated upon its aversion to strengthen-

ing the animal protection community, whose interests

were, according to the NIH, inimical to those of the scien-

tific community. NIH had difficulty maintaining its self-

proclaimed role as defender of Science, however, because

the Silver Spring Monkeys, by NIH’s own admission, had

no scientific utility. To cure this defect in its position, NIH

declared in 1988 that it had unearthed a scientific experi-

ment for which the monkeys were uniquely suited and from

which important information allegedly could be gained. In

December of 1988 NIH announced its intention to

2. When the litigation began, nine Silver Spring Monkeys remained.

Five have died during the pendency of the suit. Three were subjected to

NIH'’s lethal experiment on July 6, 1990 after courts denied petitions for

emergency injunctive relief. See footnote 3, infra.

a

5

‘euthanize’ three of the monkeys and perform its planned

experiments immediately.

The instant action followed close on the heels of

NIH’s announcement. Named as defendants were NIH;

IBR, the monkeys’ owner; and the Administrators of the

Tulane Educational Fund (‘‘Tulane”’), the monkeys’ custo-

dian. Suit was filed in state court, asserting that there was

no legitimate research interest to be pursued 3, that the

plaintiff animal protection groups and their members

would be seriously aggrieved by the destruction of the

primates, that their destruction for improper purposes con-

stituted a public nuisance, an intentional infliction of emo-

tional distress, and a violation of public policy, all under

Louisiana law; injunctive relief was sought to prevent the

animals’ killing and to transfer custody to the plairtiffs or

members of Congress. (See Petition A-30ff.).

A temporary restraining order blocking the killings

was issued immediately by the state court. Relying upon

28 U.S.C. Sec. 1442(a)(1), authorizing removal of an action

against a federal officer, NIH promptly removed the case

to federal court, whence a second TRO issued (A-16). Plain-

tiffs’ motion to remand was denied (A-17), and defendants’

successive motions to dismiss, on grounds of res judicata,

sovereign immunity, federal preemption, and lack of stan-

ding were also denied, (A-17, A-18). Defendants appealed

from the denial of their second motion to dismiss, and the

3. An action has been filed in the district court for the District o! Colum-

bia charging NIH with scientific misconduct in connection with the

planned experimentation on the Silver Spring Monkeys. The court

recently declined to issue a temporary restraining order prohibiting the

euthanasia of three Silver Spring Monkeys. Physicians Committee for

Responsible Medicine, et al. v. Louis D. Sullivan, Secretary of Health

and Human Services, et al, case number 90-0084 (on the docket of the

United States District Court for the District of Columbia).

6

Fifth Circuit, holding that plaintiffs lacked standing,

ordered the case dismissed.

REASONS FOR GRANTING THE WRIT

1. THE FIFTH CIRCUIT‘S RULING THAT NTH,

A FEDERAL AGENCY, COULD REMOVE THIS

NONFEDERAL ACTION TO FEDERAL COURT EX-

PANDS FEDERAL JURISDICTION BEYOND THE

PLAIN LANGUAGE OF THE REMOVAL STATUTE,

CREATES A CONFLICT IN THE CIRCUITS, AND

DOES VIOLENCE TO STATE COURT ENFORCE-

MENT OF STATE LAW.

A. The Removal Statute Did Not Authorize the

Exercise of Federal Jurisdiction in This Case.

The statute upon which defendant NIH predicates

its petition for removal, entitled ‘‘Federal Officers Sued Or

Prosecuted”’, provides in relevant part as follows:

(a) A civil action or criminal prosecution com-

menced in a state court against any of the follow-

ing persons may be removed by them. . .

(1) any officer of the United States or any agency

thereof, or person acting under him, for any act

under color of such office or on account of any

right, title or authority claimed under any act of

Congress for the apprehension or punishment of

criminals or the collection of the revenue.

28 U.3.C. Sec. 1442 (emphasis added).

By its terms, the statute applies to suits against

natural persons, not entities of the federal government. In

subsection (a), the statute specifically states that an action

7

against any of the following listed ‘‘persons’’ may be

removed. Further, in paragraph (1) the listed person is ‘‘any

officer” of the United States or any agency thereof. The

person may be an officer of the United States or of a United

States agency; the right to remove is not given in--

dependently to “‘any agency”. See City of Alma v. Bell,

Galyardt and Wells, Inc., 606 F.Supp. 686, 689-690 (D.

Neb. 1985). That the statue refers to natural persons is em-

phasized by its statement that removal also may be ac-

complished by a “‘person acting under him,”’ i.e. any officer.

In Lovell Mfg. v. Export-Import Bank of United States,

843 F.2d 725, 733(3d Cir. 1988), the court said of this

provision:

We cannot read a statute to say what it does not

say, and we think it plain from the punctuation of

the sentence, and the use and placement of the

word “him” that this statute merely allows

removal by any officer. . . or person acting under

Lovell’s reading, true to the statute’s language, is also true

to its purpose: to protect federal officers from being sued

in state court for actions undertaken as part of their federal

duties. As Justice Marshall explained in Willingham v.

Morgan, 395 U.S. 402, 406-407, 89 S.Ct. 1813, 1815-1816

(1969):

The federal officer removal statute has had a long

history . . . The first such removal provision was

included in an 1815 customs statute. It was part

of an attempt to enforce an embargo on trade

with England over the opposition of the New

England States, where the War of 1812 was quite

unpopular.

8

It allowed federal officials involved in the enforce-

ment of the customs statute to remove to the

federal courts any suit or prosecution commenced

because of any act ‘under color’ of the statute.

Obviously, the removal provision was an attempt

to protect federal officers from interference by

hostile state courts.

This provision, however, was not permanent, it

was by its terms to expire at the end of the war.

While the present law broadens coverage to include

federal officers other than those involved in the enforce-

ment of the revenue laws‘, it was broadened to include on-

ly additional types of federal employees, not non-natural

persons or entities. Cf. Michigan v. Banning, 88 F.Supp.

449, 450 (E.D. Mich. 1950). According to Professor Moore

the 1948 revision made no change in the theory or basis for

removal that the civil suit or the criminal prosecution must

be against the officer or employee, and based upon an act

or acts done under color of office. 1A Moore’s Federal Prac-

tice Par. 0.164[1] at 382-384. Significantly, as stated by

Moore, ‘‘a suit against a government corporation, as

distinguished from a suit against a federal official or one

acting under him, is not removable under Sec. 1442(a)(1).’’

Id. See also Lance International Inc. v. Aetna Cas. & Sur.

Co., 264 F.Supp. 349 (S.D.N.Y. 1967); Harlem River Pro-

duce Co. v. Aetna Cas. & Sur. Co. 257 F.Supp. 160

(S.D.N.Y. 1965). In addition, a proceeding that is wholly in

rem also is not removable. Jd. See also, New Jersey v.

4. Significantly, the predecessor to paragraph 1 of Sec. 1442(a) was

limited to revenue officers engaged in the enforcement of the criminal or

revenue laws and those acting under or by their authority. 1A Moore's

Federal Practice, 0.164[1] at 380-381.

9

Moriarity, 268 F.Supp. 546 (D. N.J. 1967).5

In Willingham v. Morgan this Court said that the

amended statute was to be broadly construed ‘‘to cover all

cases where federal officers can raise a colorable defense

arising out of their duty to enforce federal law.’’ 395 U.S.

402, 406-407, 89 S.Ct. 1813, 1815-1816 (1969) (emphasis

supplied). In broadening the statute to include the right of

removal by federal agencies, where, as here, no federal of-

ficers have been sued, the Fifth Circuit has gone too far. Its

interpretation is in conflict with the statutory |

and with the sound reasoning of the majority of periedio

tions that have taken the position that only federal officers

can remove a nonfederal action.

B. The Fifth Circuit Has Created a Split in the

Circuits.

A split of authority has arisen in the circuits concern-

ing the proper interpretation of Sec. 1442(a)(1). The great

weight of authority, citing the clear language of the statute

and its legisiative history, holds that a nonfederal action

may be removed only by a federal officer, not by a federal

agency, and would accordingly disallow the removal by

NIH in the instant case. See, Lovell Mfg., Div. of Patterson

- Erie Corp. v. Export - Import Bank of United States, 843

F.2d 725 (3d Cir. 1988); C. H. v. American Red Cross, 684

F. Supp. 1018 (E.D. Mo. 1987); W-V Enterprises, Inc. v.

North Kansas Savings Ass'n, 628 F.Supp. 1261 (D.Kan.

1986); C.H. v. American Red Cross, 684 F.Supp. 1018, 1023

(E.D. Mo. 1987); Woodward v. Turnage, 646 F.Supp. 219,

5. intiffe’ petition for ini ; : _

Plain | junctive relief to prevent the senseless killin

of the Silver Spring Monkeys closely resembles an in rem asoadinn by

asmuch as the petition raises questions and issues pertaining to the

cu-tody of the animals.

10

221 (E.D. Mo. 1986). Gensplit Finance Corp. v. Foreign

Credit Ins. Ass'n. 616 F.Supp. 1504, 1509 (E.D. Wis. 1985).

Harlem River Produce Co. v. Aetna Casualty and Sur. ,

Co., 257 F.S. 160 (S.D. N.Y. 1960). City of Alma v. bew,

Galyardt & Wells, Inc., 606 F.Supp. 686, 689-690 (D. Neb.

1985), citing Brewer v. Department of Housing & Urban

Dev., 508 F. Supp. 72, 74 (S.D. Ohio 1980); Lowe v. Norfolk

& Western Railroad Company, 529 F Supp. 491 (D.

111.1982); KCPO Employees Credit Union v. Mitchells, 421

F.Supp. 1327 (D. Mo. 1976); California v. Bozarth, 356

F.Supp. 667 (N.D. Cal. 1973); Lance Int'l Inc. v. Aetna Cas.

& Sur. Co., 264 F. Supp. 349 (S.D. N.Y. 1967).

A small minority, led by the Fifth Circuit, holds that

Sec. 1442(a)(1) is applicable to federal agencies. See decision

below and cases cited therein; Township of Middletown v.

N/E Regional Office USPS, 601 F.Supp. 124 (D.N.J. 1985);

Monal Construction Co. v. Brookside limited Partnership,

539 F.Supp. 478 (W.D.D.C. 1982); James River Apts. v.

FHA, 136 F.Supp. 241 (D.Md. 1955).

Because the majority view compels remand of ac-

tions removed by federal agencies, and because remand

orders are not considered final orders reviewable by appeal,

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336,

352-53, 96 S.Ct. 584, 593-94 (1976); 28 U.S.C. Sec. 1291, it

is not surprising that the majority view is expressed prin-

cipally by district court decisions. Lovell Mfg., supra, the

only Circuit Court decision espousing the majority view,

contains a thoughtful analysis of the statute's language

and history, militating in favor of its application to federal

officers alone. By contrast, the Fifth Circuit, the only cir-

cuit court subscribing to the minority view, adopted its

position without articulating any basis for its decision. See

ruling below, (A-12); Smith v. City of Picayune, 795 F.2d

482 (5th Cir. 1986); IMFC Professional Servs. v. Latin Am.

11

Home Health, Inc., 676 F.2d 152, 155-56 (5th Cir. Unit B

1982)

A writ should be granted to clarify whether 28 U.S.C.

Sec. 1442(a) means what it says, and to eliminate the divi-

sion among the circuits on this important jurisdictional

issue.

r)

C. This Action Presents Issues of State Law That

State Courts to Resolve.

In International Primate Protection League v. In-

stitute for Behavioral Research, 799 F.2d 934 (4th Cir.

1986), the plaintiffs, including some of the plaintiffs here,

sued IBR, NIH and others in state court, seeking custody

of the monkeys under Maryland law and seeking to enforce

the federal Animal Welfare Act, 7 U.S.C. Secs. 2131 et seq.

Presenting a federal question, the case was removed to

federal court. The Fourth Circuit held that enforcement of

the Animal Welfare Act was entrusted to the Department

of Argiculture and that the plaintiffs had no standing to

sue under that statue. Having thus dispensed with the

plaintiffs’ federal claims, the court declined to exercise pen-

dent jurisdiction over the state law claims. Implicit in the

court's ruling was its determination that 28 U.S.C. Sec.

1442(a) does not establish federal jurisdiction over any ac-

tion brought against a federal , becau

the Department of Health ad feo Sioches day

fendants. As noted above, in making such a determination

the Fourth Circuit was in the majority.

Anomalously, when plaintiffs reinstituted the purely

state law claims the Fourth Circuit had referred to state

court, NIH again removed to federal court. But because the

monkeys had by then been transferred to Louisiana, plaint-

12

iffs filed suit in a Louisiana state court and the removal oc-

curred within the Jurisdiction of the Fifth Circuit, one of

the few in the country where such removal would be

tolerated. Consequently, the claims that had been dismiss-

ed by the Fourth Circuit for want of jurisdiction were found

to provide jurisdiction in the Fifth Circuit.

Plaintiffs argued below that the Fourth Circuit's rul-

ing was res judicata as to the jurisdictional issue. While

dismissals for lack of subject matter jurisdiction do not

operate as adjudications upon the merits and thus do not

preclude a second action on the same claim, at the same

time, ‘“‘such dismissals do generally preclude relitigation of

the underlying issue of jurisdiction.” Wright and Miller,

Federal Practice and Procedure: Jurisdiction Sec. 4436. (em-

phasis supplied). Hence, the Fourth Circuit’s judgment

that plaintiffs’ state law claims against NIH were not

cognizable in federal court “remainjed] effective to

preclude litigation of the precise issue of jurisdiction that

led to the initial dismissal’. Jd. For example, in Voisin's

Oyster House, Inc. v. Guidry, 799 F.2d at 188, the Fifth

Circuit ruled that a dismissal on jurisdictional grounds

would not bar further proceedings on the substantive claim

in any court of competent jurisdiction but wouid preclude

relitigation of the issue of federal jurisdiction. To the same

effect is Dozier v. Ford Motor Company, 702 F.2d 1189,

1194 (D.C. Cir. 1983) (Scalia, J.), and Stewart Sec. Corp. v.

Guaranty Trust Company, 597 F.2d 240, 241 (10th Cir.

1979} (‘the principles of res judicata have been held to app-

ly to questions of jurisdiction.’’)

The Fifth Circuit did not address the argument. In-

stead it asserted jurisdiction over state law claims that had

been filed in what the Fourth Cifcuit had indicated was a

court of competent jurisdiction. (And the Fifth circuit exer-

cised jurisdiction for only long enough to dismiss plaintiffs’

nonfederal claims, with prejudice this time, for lack of Arti-

13

cle III standing, a requirement peculiar to the federal

courts).

The Fourth Circuit's implied ruling was the correct

one. The claims asserted here, grounded in Louisiana prin-

ciples of public nuisance, tort, and equity, presented issues

of state law. The primates at issue are privately owned and

housed in a local facility. As shown below, the federal agen-

cy’s interest is peripheral at best, raising further questions

about the federal intrusion into this purely local matter.

Moreover, as further shown below, plaintiffs would have

had standing in state court to air their state court claims.

The Fifth Circuit, acting contrary to the language of

the removal statute, the weight of authority and the ruling

of the Fourth Circuit, exercised jurisdiction over state

claims, only to dismiss those claims, which would have

been cognizable under state law.

D. The Fifth Circuit Improperly Usurped the Role of

the District Court and Engaged in Fact-Finding in Ruling

That NIH Had Sufficient Interest in This Action to

Authorize the Exercise of Federal Jurisdiction.

This court has admonished that ‘appellate courts

must constantly have in mind that their function is not to

decide factual issues de novo.” Zenith Radio Corp. v.

Hazeltime Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562,

1576 (1969); Cf Rule 52(a) of the Federal Rules of Civil Pro-

cedure. In this case, confronted with a serious factual

dispute concerning NIH's interest in this matter, unresolv-

ed by the district court, which had ordered discovery on the

issue, the Fifth circuit discarded this Court’s admonition in

order to find, on a tenuous factual record, that NIH was a

proper party. In so doing, the Fifth Circuit trenched on the

authority of the district court and upheld jurisdiction

under extremely questionable circumstances.

14

When NIH announced the decision to ‘‘euthanize”

three of the Silver Spring Monkeys in December of 1988,

plaintiffs filed suit immediately. They named as defend-

ants IBR, the monkeys’ owner; Tulane, their custodian;

and NIH, only because NIH had claimed responsibility for

the decision. From the outset, however, plaintiffs question-

ed NIH’s role in the proceedings. When N1H removed the

case to federal court, plaintiffs moved to remand, both on

the ground that Sec. 1442(a)(1) is inapplicable to a suit

agains a federal agency, see preceding section, and on the

15

** *

I have denied the plaintiffs’ motion to remand

because nobody has advanced a reason to this

Court whether their custody has not expired by

some operating agreements or whatever

agreements. I just felt that this Court was put in

a position to attempt to rule on these motions

se nobody had advanced anything to the

ourt.

ground that NIH had insufficient interest in the case to (Hearing, May 3, 1989, pp. 5-6).

justify the presence of a nonfederal suit in federal court.

When counsel for the NIH made an unsubstantiated

On the interpretation of 28 U.S.C. Sec. 1442(a) the claim that NIH did have an interest, the Court responded:

district court felt bound to follow Fifth Circuit precedent.

On the question of NIH’s interest in the case, however, the

district court reacted with caution and concern. Interrup-

ting NIH’s benighted argument that plaintiffs had not pro-

ven jurisdiction (which plaintiffs were challenging), the

trial court observed:

_. .1 am not sure that I have jurisdiction either.

The problem that has been advanced to me con-

sistently is the failure of the plaintiffs to be per-

mitted to discover. We don’t know why the

government is in this suit, quite frankly. The

government intervened,® but there are serious

questions as to whether they even should have

custody of these monkeys.

6. As counsel pointed out subsequently, the NIH had not

formally intervened but had been named as defendant. However, at an

earlier hearing, plaintiffs’ counsel had proposed dropping NIH as a

defendant, to which the NIH responded that it would simply intervene.

The court's reference was to that discussion.

You know, you say that, but no one has shown me

one document that permits that. I mean, you

know, it’s sort of like working in a vacuum. The

government has not given me one document. The

only documents we have ever seen have shown

that the Government's interest has long expired.

Now maybe there were some subsequent

documents, I have never seen those. The govern-

ment has refused — I shouldn't say refused, but

they certainly have not done anything to show me

that they have an interest in this case, and from

what I can understand from Ms. Woodward, she

has been attempting to get that information for a

long time, even in other previous times, and has

been unable to do so, so we have received nothing

where this Court can definitely say that, sure,

this document shows that the government does

have an interest. We don’t have anything. It has

never been produced, never, to this Court.

(/d. at 15-16; emphasis supplied).

16

The court then ruled, and several times reiterated the

discovery must go forward on the jurisdictional issue, the

‘very issue’’ to be placed before the Fifth Circuit on appeal

and in case of remand, the ‘‘next issue before this Court.”

(Id. at 20, 25, 26, 27-28).

NIH refused to document its interest and refused to

respond to plaintiffs’ discovery requests relating to N IH's

interest in the case, despite the firm commands of the trial

judge. Instead, NIH appealed from the denial of its second

motion to dismiss. (A-27). When plaintiffs noted that that

was not an appealable order, NIH filed a aovel pleading,

styled a ‘‘motion for indicative ruling’’, in which it petition-

ed the district court to ‘‘indicate’’ whether it would grant

a preliminary injunction if the issue were before it. At the

hearing on this motion there was some question whether

the court had jurisdiction to consider the bizarre request,

in view of the pending appeal. However, NIH seized the op-

portunity to withdraw its prior consent to the extension of

the TRO. It then appealed from the denial of its motion for

indicative ruling, (A-29), arguing that the TRO had been

converted into a preliminary injunction by the length of its

duration, vesting in NIH the right to appeal from the is-

suance of a preliminary injunction. Contending that NIH

was improperly manipulating the proceedings to secure an

appeal on the merits of its procedural arguments without

responding to discovery aimed at determining whether the

federal courts had jurisdiction, plaintiffs filed a motion to

dismiss the appeal. The motion was denied by the Fifth Cir-

cuit. (A-22).

Because of the pendency of the appeal, the district

court opined that it had been stripped of jurisdiction to en-

force its earlier order that discovery proceed on the issue of

NIH'’s interest in the case. (See A-20, 23).

——

17

On appeal, then, there was nothing in the record to

establish NIH’s interest in the case apart from NIH’s own

untested assertions. Some of NIH’s allegations, such as its

reliance upon the expired court order for custody, have

been proven false; all were highly suspicious, considering

NIH’s political interest in preserving the falsehood and its

former disclaimers of any need or use for the monkeys.

Against this backdrop, the Fifth Circuit found as a

matter of fact that “the planned euthanasia on the

monkeys and accompanying research is in furtherance of

NIH’s statutory mission to donduct and fund biomedical

research. (A-14, 15). By adverting to NIH’s ‘‘statutory mis-

sion’, the Fifth Circuit sidestepped the more pressing

question of whether NIH has any real interest or authority

in this case.’ This was the central issue in dispute, the

issue vigorously contested by plaintiffs, the issue on which

the district court had made no finding, the issue on which

further discovery had been ordered, and the issue on which

the appellate court had no information other than NIH’s

self-serving and highly questionable statements. To engage

in such fact-finding on such an issue, at the heart of the

jurisdictional question, violated this Court’s admonition

that against de novo fact-finding. Zenith Radio Corp. v.

Hazeltime Research, Inc., supra.

Even if 28 U.S.C. Sec. 1442(a) is read to authorize

removal by a federal agency, this Court should grant cer-

tiorari to determine whether the Fifth Circuit properly

determined that the NIH has sufficient interest in the case,

as a matter of fact, to warrant the exercise of federal

7. In an earlier proceeding NIH had resisted efforts to block its return

of the Silver Spring Monkeys to IBR by stating that it lacked authority

to retain [BR's property. (NIH Memorandum in Support of Motion to

Dismiss, p. 18, The Humane Society of the United States v. Black, No.

81-2691 on the docket of the United States District Court for the

District of Columbia.

18

jurisdiction.

II. THE FIFTH CIRCUIT ERRED IN FINDING

THAT PLAINTIFFS LACKED STANDING.

A. The Court Has Not Adequately addressed the

Issues Presented.

In their petition, plaintiffs asserted four separate

state law claims, only one of which was addressed in the

Fifth Circuit’s decision. Plaintiffs’ first claim, for abate-

ment of a public nuisance; their second claim, for tortious

negligence and intentional infliction of emotional distress;

and their third claim for equitable relief, were overlooked

by the circuit court which, relying upon the truncated

listing of claims recited by defendants, reviewed only the

fourth claim praying for the issuance of an injunction. In

ruling that the asserted irreparable injuries were insuffi-

cient to support Article III standing, however, the circuit

court did not confine its decision to the claim for injunctive

relief. Instead, it ordered the entire case dismissed, in-

cluding the three claims whose substance had completely

escaped the court’s notice. Thus, the Fifth Circuit issued a

broad ruling based on an impermissibly narrow analysis, in

violation of the essential rule that the existence of Article

III injury “often turns on the nature and source of the

claim asserted.”’ Warth v. Seldin, 422 U. S. 490, 500, 95

S.Ct. 2197, 2206(1975). Moreover, while any case in federal

court must unquestionably meet Article III requirements,

it was improper for the federal court to assert jurisdiction

ove. nonfederal case in which local interests predominate,

only to impose the more restrictive standing requirements

of Article III and dismiss the action that state courts

would have maintained.

Under Louisiana's liberal standing doctrine, plaint-

19

iffs would have easily cieared the standing hurdle in state

court. Cf, Ramsey River Road Property Owners v. Reeves,

396 So.2d 873 (La. 1981); Garden District Property Owners

Association v. City of New Orleans, 98 So.2d 922 (Orl. App.

1957), writs denied (La. 1958). The Louisiana Supreme

Court, in a recently published decision, has determined

that mental pain and anguish sustained by a person not

directly injured, becauses of the negligent infliction of in-

jury on a third person, is actionable. Lejeune v. Rayne

Branch Hospital, 556 So.2d 559 (La. 1990). The intentional

infliction of emotional distress asserted here works an even

more direct injury on the plaintiffs. Cf, Bazley v. Tortorich,

397 So.2d 475 (La. 1981).

The Fifth Circuit analyzed the entire suit as though

it were a citizen’s or taxpayer's suit challenging some

governmental action. Whatever the merits of that ap-

proach to the generalized assertions of the injunction and

other equitable claim, see section B below, it is completely

illogical to apply it to the first two counts of plaintiffs’ peti-

tion which assert precise legal claims under state law.

These tort and public nuisance claims are premised upon

private disputes with defendants, rather than the sort of

public interest claims that have traditionally awakened

standing concerns. No other decision of which we are aware

holds that the victim of a tort lacks standing to sue the

tortfeasor for that wrong. However, in dismissing plain-

tiffs’ entire action, including the tort claim, this is precisely

what the Court ruled; and it did so without even

acknowledging that the tort claim existed. To recognize

and address plaintiffs’ tort and public nuisance claims

would be to broaden the inquiry undertaken by the court;

and such broadening would necessarily vitiate the ultimate

ruling of the court.

The Supreme Court explained in Valley Forge that

the Article III requirement of injury in fact stems from a

20

‘necessity to adjudge the legal rights of litigants in actual

controversies.” 454 U.S. 471, 102 S.Ct. 758. This Court em-

phasized its earlier pronouncement that:

the power to declare the rights of individuals and

to measure the authority of governments. . . ‘‘is

legitimate only in the last resort, and as a necessi-

ty in the determination of a real, earnest and vital

controversy.”’

Id.

This tension between the rights of individuals and

the authority of governments may be central to a citizen's

challenge to governmental conduct, but not to a private

tort or nuisance action against private parties and the

government. Defendants here recognized as much when

they raised arguments of failure to state a claim under

Louisiana law and Supremacy Clause protection against

alleged interference with governmental action; defendants

did not rely upon their standing argument alone to defeat

plaintiffs’ claims, and certainly not to defeat their claims

against the private defendants, Tulane and IBR. Not hav-

ing addressed those additional defense arguments, the

Fifth Circuit offered no reasons for its dismissal of two of

the claims against NIH, nor any of the claims against

Tulane and IBR. Thus, the Court’s finding with respect to

standing was not ‘dispositive’ in the sense of offering

some explanation for the court’s ordered dismissal of the

entire action.

While plaintiffs disagree with the arguments advanc-

ed by defendants concerning plaintiffs’ right of action and

the Supremacy Clause, they agree that those arguments

musts be reached and decided in defendants’ favor in order

to justify a dismissal of this action. Otherwise, there is no

justification for dismissing plaintiffs’ tort and public

21

nuisance claims against NIH and all of their claims against

the other defendants.

B. The Fifth Circuit erred in finding that plain-

tiffs lacked standing to maintain all their claims

against NTH.

Even in its treatment of this action as a citizens’ suit

against NIH, the Fifth Circuit improperly ruled that plain-

tiffs lacked standing. Central to the court’s ruling was the

finding, imported from the Fourth Circuit’s decision in Jn-

ternational Primate Protection League v. Institute for

Behavioral Research, Inc., 799 F.2d 934 (4th Cir. 1986),

cert. denied, 481 U.S. 1004, 107 S.Ct. 1624 (1987), that

“even if the defendants were to comply with the laws

putatively violated, the plaintiffs would still lack any right

to continue their personal relationships with the

monkeys.”’ Decision at 2577. That finding was correct in

Primate Protection but not here. In Primate Protection the

plaintiffs were seeking enforcement of the provisions of the

Animal Welfare Act within the laboratory, and were fur-

ther seeking to prevent NIH’s release of the animals to

IBR, neither of which remedies would have re-acquainted

the plaintiffs with the animals. Here, plaintiffs are seeking

custody of the animals or transfer to a sanctuary where ac-

cess would be restored. Therefore, even assuming that a

right of future contact is essential to a showing of injury in

fact, plaintiffs have asserted such a right. Moreover,

nothing could do greater violence to that right than the

planned euthanasia of the monkeys.

Plaintiffs have demonstrated that their prior con-

tacts with the monkeys uniquely position them to suffer in-

jury in fact from the killings. Some plaintiffs have per-

sonally cared for these animals in the past; others, humane

officers, are personally charged by Louisiana law with in-

suring humane treatment for these animals. The Fifth

22

Circuit’s statement that “plaintiffs neither allege facts

which demonstrate that they have any aesthetic, conserva-

tional, or environmental interests in the laboratory

monkeys. . .”’, (A-9, 10), disregards the very plain allega-

tions to the contrary in the petition. The court’s further

statement ‘nor (do plaintiffs] allege facts which would

demonstrate that the destruction of the laboratory

monkeys would impair the plaintiffs’ interests in monkeys

living in the wild’, Jd., is completely beside the point. This

action never purported to safeguard an allegedly en-

dangered species, but rather to secure protection for the

discrete group of animals known as the Silver Spring

Monkeys, whose senseless destruction is at the heart of

this controversy. The court’s suggestion that concern for

an endangered species might make the claims of injury

more cognizable erects an artificial barrier with no founda-

tion in standing law. Surely in Humane Society of

Rochester v. Lyng, 633 F.Supp. 480 (W.D.N.Y. 1980), cited

by the court, there was no suggestion that the animals at

issue — cows — were an endangered species. Yet the plain-

tiffs, having shown sufficient interest in the cows’

mistreatment, were permitted to maintain their action. An

interest in privately owned animals may be a rarer cir-

cumstance than environmental or conservational concerns,

but there is nothing in the jurisprudence to indicate that

such an interest, where it exists, provides a weaker founda-

tion for standing than an interest in wild animals.

In holding plaintiffs’ interest inadequate the Fifth

Circuit has analogized to Sierra Club v. Morton, 405 U.S.

727, 92 S.Ct. 1361 (1972), in which organizational commit-

ment to protecting the environment was found insufficient

to distinguish the plaintiff's interests from the inadequate

concerns of the public in general. But in Sierra Club, the

plaintiffs failed to plead that they had used the park they

sought to protect. A year after deciding Sierra Club, this

23

court held in United States v. SCRAP, 412 U.S. 669, 93

S.Ct. 2405 (1973), that an environmental organization had

standing to challenge federal actions allegedly causing

pollution of certain parks. The only distinction between the

two cases is that the SCRAP plaintiffs specifically pleaded

that they were users of the park. This allegation, the Court

found, established a personal injury instead of the

generalized grievance stated by the Sierra Club plaintiffs.

Here, as in SCRAP, plaintiffs have alleged personal in-

juries that distinguish the action from Sierra Club and

others expressing generalized grievances. The allegations

that plaintiffs have personally cared for the Silver Spring

Monkeys, expending time and money in that effort with

defendants’ consent, have negotiated with defendants for

their release, have dedicated themselves to the preserva-

tion of the animals, have developed emotional ties with

them, and are prepared to accept custody demonstrate

close personal ties to the animals that greatly exceed the

mere abstract concern the Fifth Circuit attributes to them.

Viewing the case from another angle, reflecting the

objective of the standing requirement to insure a concrete

“case or controversy’’, see e.g., Valley Forge, supra, this

case hardly presents an abstract question of policy. Rather

than airing “generalized grievances about the conduct of

government’’, See, Flast v. Cohen, 392 U.S. 83, 106 (1968),

plaintiffs have alleged concrete injuries involving a specific

set of facts capable of precise resolution. Precise legal and

factual questions have arisen concerning defendant's need,

use, and interest in the monkeys, and these questions are

susceptible of judicial determination without speculation.

If plaintiffs make out their case of unjustified curelty ° to

8. The court erroneously stated that plaintiffs rely on La. R.S. 14:102.1

for their definition of cruelty to animals. Decision at n. 4, A-8. Plaintiffs

24

the animals, the injury they have suffered is susceptible of

concrete redress.

Plaintiffs have alleged injury in fact that is likely to

be redressed by a favorable decision. Article III standing

requirements have been met, and if federal jurisdiction is

present, the entire case should be permitted to proceed in

the trial court.

Footnote 8 continued.

referred to the criminal statute only to support their assertion of a state

policy against inhumane treatment of animals. Under the civil law, en-

forcement of anti-cruelty laws reposes with local humane officers, La.

R.S. 3:2391. In this case, jurisdiction lies with the local humane officers,

who would enforce a local ordinance that does not exempt scientific

research. Code of Ordinances of St. Tammany Parish, Section 4-16.52.

In any event plaintiffs contend that defendants have no legitimate

research interest in the animals.

25

CONCLUSION

For the reasons stated above, the Writ of Certiorari

should be granted.

Respectfully Submitted,

!

MARGARET E. WOODWARD

Bar No. 13677

610 Poydras St., Suite 318

New Orleans, La. 70130

Phone: 504-525-9538

Attorney For Petitioners

International Primate Protection

League and its Members,

People for the Ethical Treatment of

Animals and its Members,

Alex Pacheco, and Louisiana

in Support of Animals

and its members

26

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and forego-

ing has been forwarded to all counsel of record, as listed

below, and to the Solicitor General of the United States, in

accordance with Rule 29.5(b) of the Rules of the Supreme

Court, by depositing same in the U.S. mail, postage

prepaid, this ____ day of ___., 1990.

By: ;

MARGARET E. WOODWARD

STUART E. SCHIFFER

Acting Assistant Attorney General

JOHN VOLZ

United States Attorney

JOHN F. CORDES

(202/fts) 633-3427

Attorneys, Appellate Staff

Civil Division, Room 3631

Department of Justice

Washington, D.C. 20530-0001

(Attorneys for National Institutes of Health)

GREGORY C. WEISS

Blue, Williams & Buckley

3431 N. Causeway Blvd.

Metairie, Louisiana 70002

(Attorney for Administrators of Tulane Educational Fund)

SOLICITOR GENERAL

Department of Justice

Washington, D.C. 20530

THOMAS P. POWERS

Powers & Lewis

4201 Connecticut Ave., N.W.

Washington, D.C. 20008

(Attorneys for Institutes for Behavior Resources)

A-1

APPENDIX A

INTERNATIONAL PRIMATE

PROTECTION LEAGUE, et al.,

Plaintiffs-Appellees,

Vv.

ADMINISTRATORS OF THE TULANE

EDUCATIONAL FUND, and National Institute of

Health, Defendants-Appellants.

No. 89-3288

United States Court of Appeals,

Fifth Circuit.

March 8, 1990.

Animal rights groups brought suit in state court

seeking to bar a University and the National Institutes of

Health (NIH) from euthanizing certain monkeys which had

been subjected to neurological damage and from conduc-

ting subsequent autopsy research. The NIH removed to

federal court and the United States District Court for the

Eastern District of Louisiana, Veronica D. Wicker, J.,

issued an injunction prohibiting disposal of the animals.

Appeal was taken. The Court of Appeals, Gee, Circuit

Judge, held that: (1) animal rights groups lacked standing

under Article III to maintain action; (2) dismissal of suit

was required rather than remand to state court; and (3)

NIH had sufficient interest in rponkeys to support removal

of case to federal court.

Injunction vacated and case dismissed.

A-2

Appeals from the United States District Court for

the Eastern District of Louisiana.

Before GEE, REAVLEY and GARWOOD, Circuit

Judges.

GEE, Circuit Judge:

In today’s case we address the issue whether a

preliminary injunction which prevents the National In-

stitutes of Health from carrying out the euthanizing of

three macaque monkeys in order to conduct medical

research was properly granted. Having determined that

the National Institutes of Health, a federal agency, has a

sufficient interest in the euthanizing of the monkeys to

allow it te defend that interest in federal court, and con-

cluding further that the plaintiffs have not alleged any in-

jury sufficient to meet the standing requirements of Article

III, we vacate the order of the district court granting the

injunction and dismiss the case.

I. FACTS

In 1981, Dr. Edward Taub, the chief of the

Behavioral Biology Center of the Institute of Behavioral

Research, Inc. (‘‘IBR’’),! had been conducting experiments

at IBR’s Silver Spring, Maryland, facility concerning the

ability of macaque monkeys to recover use of a limb after

nerves in it had been severed. The project had been funded

by the National Institutes of Health (“NIH”) and was

undertaken in a pursuit of benefits for the rehabilitation of

human patients suffering from neurological damage.

1 Prior to the present suit, [BR changed its name to the Institutes for

Behavior Resources.

A-3

In September of 1981, Maryland police officers ex-

ecuted a warrant at the facility pursuant to their investiga-

tion into the alleged mistreatment of monkeys involved in

the experiments. The search resulted in the seizure of 17

macaque monkeys and the arrest and conviction of Dr.

Taub on multiple counts of animal cruelty under Article 27,

§ 59 of the Maryland’s Code.” Pursuant to a court order,

NIH was given temporary charge of the monkeys.

Following Dr. Taub’s conviction, People for the

Ethical Treatment of Animals, Inc. (‘“‘“PETA”’), along with

the International Primate Protection League (‘‘IPPL’’), the

Animal Law Enforcement Association and several named

individuals brought suit in Montgomery County, Maryland

seeking, inter alia, ‘‘custody”’ of the monkeys seized from

the facility. The defendants removed to the United States

District Court for the District of Maryland, which dismiss-

ed the case, finding that none of the claims of the plaintiffs

alleged injury sufficient to give them standing to seek

possession of the animals. The dismissal was affirmed by

the Fourth Circuit. See International Primate Protection

League v. Institute for Behavioral Research, Inc., 799 F.2d

934 (4th Cir. 1986), cert. denied, 481 U.S. 1004, 107 S.Ct.

1624, 95 L.Ed.2d 198 (1987) [hereinafter Primate

Protection].

Although the state court order granting temporary

possession to NIH terminated in 1983, NIH has continued

to act as keeper of the monkeys with the consent and

2 Under this section, cruelty to animals is a criminal misdemeanor which

carries a maximum imprisonment of ninety days and a maximum fine

of $1,000 for each offense. Dr. Taub's convictions were later set aside

because the Maryland statute was found not to apply to scientific

research. Taub v. State of Maryland, 296 Md. 439, 463 A.2d 819 (1983),

The statute has since been amended_to apply to researches. Md.Code,

Art. 27, § 59 (amended 1984).

A-4

cooperation of IBR, the monkey 3’ owners. In response to

public clamor and to pressure from members of Congress.

NIH transfered a number of the monkeys to Tulane’s Delta

Regional Primate Center. In December of 1988, NIH an-

nounced that they intended to euthanize three of these

animals immediately. NIH hopes to gain, through the pro-

cedure and subsequent autopsy, knowledge that may lead

to improvements in rehabilitation therapy for individuals

who have suffered brain or spinal cord damage.

When NIH announced its decision, the present suit

was filed in Louisiana Civil District Court asserting

various state law claims and seeking possession of the

monkeys. The plaintifts in this suit are IPPL, PETA, Loui-

siana in Support of Animals and PETA’s founder, Alex

Pacheco. Named as defendants are NIH, IBR and Tulane.

In December of 1989, the court issued a temporary

restraining order prohibiting the euthanizing of any of the

monkeys.

NIH removed the case, under the authority of 28

U.S.C. § 1442(a)(1), to the United States District Court for

the Eastern District of Louisiana. The district court con-

tinued the state court’s temporary restraining order, fin-

ding the equities of the case to favor the plaintiffs. As the

district court extended the temporary restraining order

beyond the 20 days permitted by Rule 65(b), the extended

TRO became the functional equivalent of a preliminary in-

junction, appealable under 28 U.S.C. § 1292(a)(1). See

Fernandez-Rogue v. Smith, 671 F.2d 426 (5th Cir. 1982}.

Il. DISCUSSION

NIH contends that the district court erred in exten-

ding the TRO as the plaintiff's have no likelihood of

prevailing on the merits. In support of its contention, NIH

oo

A-5

relies upon three theories. First, NIH asserts that the

plaintifis lack standing to seek possession of the mondeys.

Second, NIH alleges that the Supremacy Clause bars the

plaintiffs’ from interfering with the planned euthanization

and subsequent autopsy. Third, NIH alleges that Loui-

siana Law contains no provision permitting private per-

sons to bring civil suits to redress alleged ‘‘animal rights”

violations. Finding the issue of standing dispositive, we do

not address the other two contentions in defendants’ brief.

A. Standing

[1) To meet standing requirements under Article III,

the plaintiff must demonstrate two things: First ‘‘that he

personally has suffered some actual or threatened injury as

a result of the putatively illegal conduct of the defendant,”’

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99,

99 S.Ct. 1601, °607, 60 L.Ed.2d 66 (1979); and sec-

ond, a causal connection between the injury and the con-

duct such that the injury is ‘‘likely to be redressed by a

favorable decision."’ Simon v. Eastern Kentucky Welfare

Rights Organization, 426, U.S. 26, 38. 96 S.Ct. 1917, 1924,

48 L.Ed.2d 450 (1976). The Supreme Court has recognized

that injuries to a plaintiff's ‘‘aesthetic, conservational, and

recreational interests are sufficient to meet the first re-

quirement of Article III standing. Association of Data Pro-

cessing Service Organizations, Inc. v. Camp, 397 U.S. 150,

153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). The Court

has likewise noted tiiat some interests are ‘‘too abstract, or

otherwise not appropriate, to be considered judicially

cognizable.”’ Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct.

3315, 3325, 82 L.Ed.2d 556 (1984). In the present case, the

plaintiffs have advanced three separate claims of injury.

1. Personal relationships

The plaintiffs’ first claim is that:

A-6

Plaintiffs, plaintiff organizations and _ in-

dividual members thereof would suffer a perma-

nent disruption of their personal relationships

with the monkeys, relationships which were

established prior to any previous litigation in

related matters and which continued during such

litigation.

This claim of injury to the plaintiffs’ ‘‘personal relation-

ships with the monkeys”’ is one which, within the context

of this case, is insufficient to meet Article III re-

quirements. At the outset, we recognize that the Fourth

Circuit has previously rejected the virtually identical

allegation by APPL and BETA in Primate Protection. 799

F.2d at 938. That Court reasoned that, even if the defen-

dants were to comply with the laws putatively violated, the

plaintiffs would still lack any right to continue their per-

sonal relationships with the monkeys.

The reasoning of the Fourth Circuit in Primate Pro-

tection, which we adopt today, is in accord with that of the

Ninth Circuit in Animal Lovers Volunteer Ass'n uv.

Weinberger, 765 F.2d 937 (9th Cir. 1985), in which the

plaintiffs in that case sought to enjoin the killing of goats

in a federal enclave. The court held that the plaintiffs failed

to allege sufficient injury to confer standing, finding that

the Government’s goat control measures ‘‘would produce

no ‘‘direct sensory impact’ on [the plaintiff's] own environ-

ment or on any environment to which [its] member{[s] would

have access.”’ Id. at 939. The court noted that if the plain-

tiff could show that the killing of the goats ‘“‘would affect

its members’ aesthetic or ecological surroundings’”’ that the

plaintiff's position might have been different. Jd. at 938.

The cases cited by the plaintiffs, in which courts

have found animal rights groups to have met the Article

II! injury requirement, provide scant support to their

A-7

claim of injury. Unlike the privately-owned laboratory

animals involved in the present situation, the animals in

the majority of those cases were feral ones which, were the

challenged conduct of the defendants to be enjoined, the

members of the plaintiff organizations could freely enjoy.

For example in Japan Whaling Assoc. v. American Ceta-

cean Soc’y, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166

(1986), the Supreme Court held that the plaintiffs in that

case had ‘‘alleged a sufficient “injury in fact’ in that the

whale watching the studying of their members [would] be

adversely affected by continued whale harvesting.’’

Similarly, in Animal Welfare Institute v. Kreps, 561 F.2d

1002 (D.C.Cir.1977), cert. denied, 474 U.S. 1013, 98 S.Ct.

726, 54 L.Ed.2d 756 (1978), the court held that the plain-

tiffs had standing because the defendants’ action “‘im--

pair[ed] the ability of the members of the Plaintiff organiza-

tions to see, photograph, and enjoy Cape fur seals alive in

their natural habitat under conditions in which the animals

are not subject to excessive harvesting, inhumane treat-

ment and slaughter.’’ Also, in Alaska Fish & Wildlife

Federation v. Dunkle, 829 F.2d 933, 937 (9th Cir.1987),

cert. denied, 485 U.S. 988, 108 S.Ct. 1290, 99 L.Ed.2d 501

(1988), the court held sufficient the plaintiffs’ allegation

that the defendants’ actions would injure ‘‘those who wish

to hunt, photograph, observe, or carry out scientific studies

on the migratory birds.’’ In American Horse Protection

Association v. Frizzell, 403 F.Supp. 1206, 1214

(D.Nev.1975), the court likewise found sufficient the allega-

tion that ‘‘[aJmong the plaintiff's individual members are

persons residing in the State of Nevada and the District of

_ Columbia and other states who have in the past and have

the right in the future to be users and enjoyers of the lands

and wildlife which is the subject of this suit.”’

The plaintiffs do cite one case in which an-animal

rights group was held to have standing to protest the treat-

A-8

ment of privately-owned animals. In Humane Soc'y v.

Lyng, 633 F.Supp. 480 (W.D.N.Y.1980), a local humane

society challenged a federal regulation requiring dairy

farmers admitted to the Dairy Termination Program to hot

brand their cows.? The court held the humane society to

have standing because New York State law specifically

authorized it to prosecute violations of animal cruelty laws.

Id. at 485.

The plaintiffs maintain that among their numbers

are humane officers authorized under Louisiana law to

remove animals’ being’ treated cruelly. See

La.Rev.Stat.Ann. § 3:2431, and fails to allege that any of

statutory prerequisites to animal removal have been met.

See Id. at §§ 3:2432-38.

2. Long standing, sincere commitment

The plainfiffs’ second claim of injury is that:

Plaintiffs, plaintiff organizations and _in-

dividual members thereof maintain a _ long-

standing, sincere commitment to preventing in-

humane treatment of animals, especially as con-

cerns the monkeys now at Delta, and their

3. See U.S. Department of Agriculture Notice LD-248; see also H.R.Rep.

No. 99-271(I), 99th cong, 2st Sess. 20-21, reprinted in 1985 U.S.Code

Cong. and Admin.News 1103, 1124-25; 7 U.S.C. § 1446(d)(3).

4. We note that even if these hurdles were overcome, a finding that the

euthanasia of the monkeys would constitute cruelty under § 3:2431 is

unlikely. In their attempt to characterize the defendant: ' planned action

as cruelty, the plaintiffs rely on § 14:102.1, defining criminal cruelty to

animals. Although this section does hold guilty one who ‘‘[tjortures,

torments, cruelly beats or unjustifiably injures, maims, mutilates, or

kills any living animal,’ the section contains an express exemption for

scientific and medical research.

A-9

aesthetic, conservational and environmental in-

terests would be particularly, severely, and

detrimentally affected.

The plaintiffs’ ‘long-standing, sincere commitment’”’ is

likewise insufficient to support standing under Article III.

In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31

L.Ed.2d 636 (1972), the Supreme Court rejected the Sierra

Club’s contention that its organizational commitment to

conservation was sufficient to meet the injury requirement,

stating:

The Sierra Club is a large and long-established

organization, with a historic commitment to the

cause of protecting our Nation’s natural heritage

from man’s depredations. But if a ‘special in-

terest’’ in this subject were enough to entitle the

Sierra Club to commence this litigation, there

would appear to be no objective basis upon which

to disallow a suit by any other bona fide ‘‘special

interest’ organization, however small or short-

lived. And if any group with a bona fide ‘’special

interest’’ could initiate such litigation, it is dif-

ficult to perceive why any individual citizen with

the same bona fide special interest would not also

be entitled to do so.

Id. at 739, 92 S.Ct. at 1368. Similarly, the plaintiffs’ sincere

commitment to the humane treatment of animals in the

present case is insufficient to distinguish them from other

members of the public.

The plaintiffs’ claim of harm to their ‘aesthetic, con-

servational and environmental interests”’ fails for the same

reason that their ‘“‘personal relationship”’ claim fails. The

plaintiffs neither allege facts which demonstrate that they

have any aesthetic, conservational or environmental in-

A-10

terests in the laboratory monkeys, nor allege facts which

would demonstrate that the destruction of the laboratory

monkeys would impair the plaintiffs’ interests in monkeys

living in the wild. Were the plaintiffs to allege, for example,

that the species of monkey here involved was endangered

and that the destruction of the laboratory monkeys would

therefore impair conservation efforts to preserve or restore

such an endangered species to its wild habitat, their claims

of injury might be more cognizable. As they have not (and

likely could not credibly) make such an allegation, the

plaintiffs second claim of injury is insufficient to confer

standing.

3. Advocates for the monkeys

The plaintiffs’ third claim of injury is that:

Plaintiffs’ mission as advocates for the rights

of the Silver Spring Monkeys, who have no means

of protecting themselves, would be severely

impaired.

As discussed above, the Supreme Court in Sierra

Club has ruled this kind of ‘special interest’’ insufficient to

confer standing. Implicit in the plaintiffs’ third claimed in-

jury, however, is the contention that the plaintiffs should

be allowed standing because to deny it would leave the

monkeys unprotected. The Supreme Court rejected a

similar contention in Valley Forge Christian College v.

Americans United for Separation of Church and State:

“*The assumption that if respondents have no

standing to sue, no one would have standing.’ This view

would convert standing into a requirement that must be

observed only when satisfied. Moreover, we are unwiling to

assume that injured parties are nonexistent simply because

A-11

they have not joined respondents in their suit.

The law of averages is not a substitute for

standing.”

454 U.S. 464, 489, 102 S.Ct. 752, 767, 70 L.Ed.2d 700 (1982)

(citation omitted). Accordingly, the mere fact that the

monkeys would be left without an advocate in court does

not create standing where it otherwise does not exist.

B. Removal

[2] The plaintiffs contend that even if they lack stan-

ding under Article III, they meet the requirements for

standing under state law; as they allege only state law

causes of action, the plaintiffs maintain, the more stringent

Article III requirements need not be met. Although stan-

ding requirements in state courts are often less stringent

than those of Article III, the issue lacks relevance here, as

standing in federal court is determined entirely by Article

III and depends in no degree on whether standing exists

under state law. Phillips Petroleum Co. v. Shotts, 472 U.S.

797, 804, 105 S.Ct. 2965, 2970, 86 L.Ed.2d 628 (1985). This

rule applies as well to cases which arrive in federal court by

means of removal. See Associated General Contractors v.

Otter Tail Power Co., 611 F.2d 684, 687 (8th Cir.1979).

[3] The plaintiffs urge that, if they cannot properly

maintain suit in federal court, the case should be remanded

to Louisiana state court. The present case was removed by

NIH under the authority of 28 U.S.C. § 1442(a)(1), which

permits removal by “‘[aJny officer of the United States or

any agency thereof, or person acting under him, for any act

under color of such office.’’ Unlike removal under § 1441,

where the discovery of a jurisdictional defect would require

remand to state court, a federal defendant’s right of

removal under § 1442(a)(1) is absolute. Arizona v.

A-12

Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 1664, 68

L.Ed.2d 58 (1981). If a case has been removed pursuant to

§ 1442(a)(1), a plaintiff's lack of Article III standing re-

quires dismissal of his claims against the federal defen-

dant, regardless of the plaintiff's previous standing in state

court. Maine Ass'n of Interdependent Neighborhoods, Inc.

uv. Petit, 644 F.Supp. 81, 84-85; see also Maine Ass'n of In-

terdependent Neighborhoods, Inc. v. Commissioner, Maine

Dept. of Human Services, 876 F.2d 1051, 1055 (1st

Cir.1989).

The plaintiffs contend, however, that removal of the

action by NIH under § 1442(a)(1) was improper. The plain-

tiffs urge two theories in support of their contention: First,

that as NIH is a federal agency, and not a federal officer,

§ 1442(a)(1) is inapplicable; second, that NIH has no legally

cognizable interest in the monkeys sufficient to support

removal under § 1442(a)(1).

1. Federal agencies

[4] Although the plaintiffs concede that we have

previously stated that § 1442(a)(1) applies to federal agen-

cies, they contend that such statements were merely dicta.

In Smith v. City of Picayune, 795 F.2d 482 (5th Cir.1986),

we held that a federal district court did not abuse its discre-

tion by entertaining a plaintiff's state law claims because

the Farmers Home Administration, a federal agency, was

a defendant in the case and could have removed the case to

federal court under §1442(a)(1) had it been filed in state

court. Jd. at 485. In so holding, we noted a split of authori-

ty on the issue of whether 1442(a)(1) applies to federal

agencies” and accepted the view that it did. As we

5. See 14A Wright, Miller & Cooper, Federal Practice & Procedure §

3727 (2d ed. 1985).

A-13

expressly found state issues predominant in that litigation,

our determination that the agency could have removed

under § 1442 was crucial to our holding that the district

court had jurisdiction to hear the case. Jd. The plaintiffs’

attempt to characterize our holding in that case as

nonauthoritative is weak at best.

2. NIH'’s interest in the monkeys

[5] The plaintiffs maintain that although they named

NIH as a defendant in this action, NIH has had no interest

in the monkeys following the expiration of the court order

giving it temporary ‘“‘custody’’; if NIH has no interest, the

plaintiffs contend, then removal under § 1442 was

improper.

The plaintiffs fail to recognize that ‘‘the only prere-

quisite to removal of a civil action under § 1442 is that it

be brought against a federal officer or agency.’’ IMFC Pro-

fessional Servs. v. Latin Am. Home Health, Inc., 676 f.2d

152 (5th Cir. Unit B 1982). As NIH is named as a defendant

in the present action, the case was properly removed.

Although we find the case to have been properly

removed, we recognize that if NIH indeed has no interest

whatsoever in the monkeys, the dismissal of NIH from the

suit would require remand, rather than dismissal, of the

plaintiffs’ suit against Tulane and IBR. Cf. IMFC, 676 F.2d

at 158-59; Williams v. City of Atlanta, 794 F.2d 624, (11th

Cir.1986). The issue here then is whether NIH’s

possessory, financial and research interests in the monkeys

are sufficient to allow it the right to protect those interests

6. See also IMFC Professional Servs. v. Latin Am. Home Health Inc.,

676 F.2d 152, 155-56 (5th Cir. Unit B 1982).

A-14

in federal court.

In enacting 28 U.S.C. § 1442, Congress recognized

that

federal officers are entitled to, and the interest of

national supremacy requires, the protection of a

federal forum in those actions commemced in

state court that could arrest, restrict, impair, or

interfere with the exercise of federal authority by

federal officials.

Murray v. Murray, 621 F.2d 103, 106 (5th Cir.1980). In

Murray, the United States was named as a Garnishee in a

state court lawsuit by a woman against her ex-husband

seeking her husband’s Veterans’ Administration benefits

in satisfaction of unpaid alimony. The government remov-

ed under § 1442(a)(1) to federal district court, which denied

Mrs. Murray relief on summary judgment. We reversed the

judgment of the district court for want of jurisdiction,

reasoning that the United States was a ‘‘mere stakeholder”’

in the action. We held that because the government was

unable to identify how the disposition of the garnishment

action in state court could “arrest, restrict, impair, or in-

terfere with the actions of a federal official or the opera-

tions of the federal government,”’ the action fell beyond the

scope of protection afforded by § 1442(a)(1). Jd. at 107.

In the present case, NIH has demonstrated that its

interest goes beyond that of “‘mere stakeholder.’’ HIH

funded IBR’s original experimentation on the monkeys

and, with the owner’s consent, serves as the monkeys’

keeper. More important, however, is that the planned

euthanasia on the monkeys and accompanying research is

furtherance of NIH’s statutory mission to conduct and

A-15

and fund biomedical research. Because the injunctive relief

sought by the plaintiffs could interfere with NIH’s opera-

tions, it is entitled to protect its legitimate interests in a

federal forum. As federal court jurisdiction is limited by

the constitution, the plaintiffs’ failure to allege injury suffi-

cient to satisfy Article III standing requirements is fatal to

their suit. Accordingly, we VACATE the order of the

district court granting the preliminary injunction and

DISMISS the case.

A-16

APPENDIX B

International Primate Protection League, et al.

Vv.

Administrators of the Tulane Hducational Fund, et al.

United States District Court

Eastern District of Louisiana

TEMPORARY RESTRAINING ORDER

Considering the verified petition for temporary

restraining order and preliminary and permanent injunc-

tion, and for good cause shown,

IT ISORDERED that a temporary restraining order

be and the same is hereby issued, enjoining the Ad-

ministrators of the Tulane Educational Fund, the National

Institutes of Health, and their agents, attorneys and ser-

vants, from inhumane treatment towards, or euthanasia or

other destruction of those macaque monkeys known as the

“Silver Spring Monkeys..”’

This order to remain in effect through midnight,

February 1, 1989, unless otherwise terminated.

THUS DONE AND SIGNED this 6th day of

January, 1989, New Orleans, Louisiana.

/s/ Veronica D. Wicker

UNITED STATES DISTRICT JUDGE

A-17

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

International Primate Protection League, et al.

Vv.

Administrators of the Tulane Educational Fund, et al.

WEDNESDAY, FEBRUARY 1, 1989

10:00 A.M.

MOTION OF PLAINTIFFS TO REMAND.

DENIED

MOTION OF NAT'L INSTITUTE OF HEALTH TO

DISMISS.

DENIED. without prejudice to be reset by the

movers.

DATE OF ENTRY FEB 2 1989.

A-18

APPENDIX D

International Primate Protection League, et al.

v.

Administrators of the Tulane Educational Fund et al.

United States District Court

Eastern Distsrict of Louisiana

WEDNESDAY, April 12, 1989

10:00 A.M.

MOTION OF THE UNITED STATES OF AMERICA TO

DISMISS.

ARGUED

DENIED AT THIS TIME.

A-19

APPENDIX E

International Primate Protection League, et al.

Vv.

s

Administrators of the Tulane Educational Fund, et al.

United States District Court

Eastern District of Louisiana

WEDNESDAY, MAY 3, 1989

10:00 A.M.

MOTION OF THE UNITED STATES FOR STAY, PEN-

DING APPEAL.

MOTION ARGUED. MOTION DENIED INSOFAR AS

TO THE JURISDICTION ISSUE; GRANTED AS TO

ALL OTHER ISSUES.

MOTION OF THE UNITED STATES FOR _sIN-

DICATIVE RULING.

ARGUED DENIED. . T.R.O. NOT DISSOLVED AT

THIS TIME.

DATE OF ENTRY MAY 4 1989

A-20

APPENDIX F

MINUTE ENTRY

WYNNE, M.

August 16, 1989

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

INTERNATIONAL PRIMATE

PROTECTION LEAGUE, ET AL. CIVIL ACTION

VERSUS NUMBER:88-5713

ADMINISTRATORS OF THE SECTION “L”’ (2)

TULANE EDUCATIONAL FUND, ET AL.

FILED AUG 17 89

HEARING ON MOTION

APPEARANCES:

MOTION: of the plaintiffs

(1) Motion to Compel

(2)

(3)

1: Opposition

ORDERED

1: DENIED The motion is denied because this

a

A-21

Court is divested of jurisdiction

over matters involved in the appeal

pending before the Fifth Circuit

Court of Appeals. Plaintiffs are

seeking discovery on the issues

which are presently pending before

the Fifth Circuit. Newball v. Off-

shore Logistics International, 803

F.2nd 821 (C.A. 5 1986), United

States v. Hitchmon, 602 F. 2nd

689, (C.A. 5 Cir. 1979, en banc)

MICHAELLE PITARD WYNNE

United States Magistrate

CLERK TO NOTIFY ALL COUNSEL

DATE OF ENTRY AUG 17 1989

A-22

APPENDIX G

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 89-3288

FILED AUG 9 1989

INTERNATIONAL PRIMATE PROTECTION ET AL.,

Plaintiffs-Appellees

versus

ADMINISTRATORS OF TULANE EDUCATIONAL

FUND and NATIONAL INSTITUTES OF HEALTH,

Defendants-Appellants.

Appeal from the United States District Court for the

Eastern District of Louisiana

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

BY THE COURT:

IT IS ORDERED that the motion of appellee(s) to

dismiss the appeal is DENIED. There is no showing of con-

sent to extend the temporary restraining order beyond

February 1, 1989 - certainly not beyond April 12, 1989. See

Fernandez-Rogue v. Smith 671 F.2d 426, 429 (5th Cir.

1982).

—

ee ee eee ee

A-23

APPENDIX H

INTERNATIONAL PRIMATE

PROTECTION LEAGUE, ET AL.

Vv.

ADMINISTRATORS OF THE TULANE

EDUCATIONAL FUND ET AL.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WEDNESDAY, SEPTEMBER 13, 1989

10:00 A.M.

MOTION OF PLAINTIFFS INTERNATIONAL

PRIMATE PROTECTION LEAGUE AND ITS

MEMBERS, PEOPLE FOR THE ETHICAL TREAT-

MENT OF ANIMALS AND ITS MEMBERS, ETC. TO

REVIEW*MAGISTRATE’S ORDER DENYING MO-

TION TO COMPEL.

ARGUED. COURT UPHOLDS THE MAGISTRATE.

MOTION TO CERTIFY.

DENIED

A-24

APPENDIX I

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-3288

FILED APR 13 1990

INTERNATIONAL PRIMATE PROTECTION, ET AL.,

Plaintiff-Appellees,

versus

ADMINISTRATORS OF TULANE ED. FUND

and NATIONAL INSTITUTES OF HEALTH,

Defendants-Appellants.

Appeals from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING

( APRIL 13, 1990

Before GEE, REAVLEY and GARWOOD, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing fil-

ed in the above entitled and numbered cause be and the

same is hereby DENIED.

.

A-25

ENTERED FOR THE COURT:

/s/ illegible

United States Circuit Judge

A-26

APPENDIX J

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-3288

FILED MAY 2 1990

INTERNATIONAL PRIMATE PROTECTION, ET AL.,

Plaintiffs-Appellees,

versus

ADMINISTRATORS OF TULANE EDUCATIONAL

FUND and NATIONAL INSTITUTES OF HEALTH,

Defendants-Appellants.

Appeals from the United States District Court for the

Eastern District of Louisiana

ORDER:

xX The motion of appellees

for ‘X stay _) recall and stay of the issuance of the

mandate pending petition for writ of certiorari is

DENIED.

/s/ Thomas Gibbs Gee

UNITED STATES CIRCUIT JUDGE

THOMAS GIBBS GEE

:

'

:

a

A-27

APPENDIX K

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

INTERNATIONAL PRIMATE * CIVIL ACTION

PROTECTION LEAGUE,

ET AL

. NO. 88-5713

v. * SECTION: “L” (2)

ADMINISTRATORS OF THE

TULANE EDUCATIONAL

FUND, ET AL °

* *

NOTICE OF APPEAL

The United States of America, on behalf of its

agency the National Institutes of Health, hereby appeals

to the United States Court of Appeals for the Fifth Circuit,

pursuant to 28 U.S.C. §1292(a), from the order entered on

April 12, 1989.

A-28

Respectfully submitted,

JOHN VOLZ

r UNITED STATES ATTORNEY

/s/ Ruth Morris Force

RUTH MORRIS FORCE

Assistant U.S. Attorney

Hale Boggs Federal Building

500 Camp Street, Room 205

New Orleans, LA 70130

Telephone: (504) 589-3561

LA Bar Roll No.: 5683

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing has been served upon

counsel for all parties by mailing the same to each, properly

addressed and postage prepaid this 17 day of

April, 1989.

/s/ R M Force

Assistant U. S. Attorney

‘

:

.

:

}

|

A-29

APPENDIX L

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

INTERNATIONAL PRIMATE CIVIL ACTION

PROTECTION LEAGUE, ET AL

versus NO. 88-5713

ADMINISTRATORS OF THE TULANE

EDUCATIONAL FUND, ET AL SECTION L (2)

NOTICE OF APPEAL

The United States of America, on behalf of its

agency the National Institutes of Health, hereby appeals

to the United States Court of Appeals for the Fifth Circuit

the decision of the District Court on May 3, 1989, on the

Motion of the United States for an Indicative Ruling.

Respectfully submitted,

JOHN VOLZ

UNITED STATES ATTORNEY

/si/ Ruth Morris Force

RUTH MORRIS FORCE -5683

Assistant U.S. Attorney

Hale Boggs Federal! Building

500 Camp Street

New Orleans, Louisiana 70130

Telephone: (504) 589-3561

A-30

APPENDIX M

CIVIL DISTRICT COURT

FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

NO. DIVISIGN” ” DOCKET NO.

FILED Dec 28

INTERNATIONAL PRIMATE

PROTECTION LEAGUE, ET AL

versus

ADMINISTRATORS OF THE TULANE

EDUCATIONAL FUND, ET AL

FILED:

DY. CLERK

PETITION FOR DECLARATORY

AND/OR INJUNCTIVE RELIEF

The petition of International Primate Protection

League and its members, People for the Ethical Treatment

of Animals and its members, Alex Pacheco, and Louisiana

in Support of Animals and its members, respectfully

represents:

Made defendants herein are the Administrators of

the Tulane Educational fund, the National Institutes of

Health (NIH) and the Institutes for Behavior Resources,

Inc. (IBR).

‘h.

:

)

A-31

II.

Plaintiffs, International Primate Protection League

(IPPL), People for the Ethical Treatment of Animals

(PETA), and Louisiana in Support of Animals ( ),

are private organizations for the humane treatment of

animals, with their main offices in South Carolina,

Maryland, and Louisiana respectively. Plaintiff Alex

Pacheco is founder and chairman of PETA and is domiciled

in Maryland.

III.

Defendant the Administrators of the Tulane Educa-

tional Fund (Tulane) is a corporate body established by the

statutory law of Louisiana and based in New Orleans, Loui-

siana. It governs the Tulane Medical Center, one branch of

which is the Delta Regional Primate Research Center.

IV.

Defendant National Institutes of Health is a federal

agency in the Department of Health and Human Services,

whose main office is in Maryland, and which is doing

business in Louisiana.

V.

Defendant Institutes for Behavior Resources, Inc. is

a private research corporation in the District of Columbia,

which claims (contested) ownership of certain monkeys

that are being housed in Louisiana.

Vi.

Plaintiffs seek to enjoin defendants and any of their

A-32

agents, officers, representatives, empioyees and/or all

thoSe persons in concert with them from destroying or

otherwise disposing of or injuring any of the surviving

primates known as the ‘Silver Spring Monkeys’, and fur-

ther seeks judgment declaring that plaintiffs or members

of the U.S. Congress be made custodian of those monkeys.

VII.

In May, 1981, plaintiff Alex Pacheco was hired by

Edward Taub, PhD, head of the IBR’s warehouse

laboratory, to assist in primate experiments. In particular,

IBR was conducting experiments on a number of macaque

monkeys, highly intelligent and social animals. The ex-

periments, conducted pursuant to a grant funded by the

NIH, involved severing spinal nerves and observing the

animals’ capacity to learn to use their limbs. The survivors

of such experimentation have come to be known as ‘‘the

Silver Spring Monkeys.”

VILL.

In the course of his employment, Mr. Pacheco

discovered the Silver Spring Monkeys were receiving in-

adequate care, and that the experiments were needlessly

repetitive and cruel. The monkeys showed signs of extreme

distress. During the course of and as a result of faulty ex-

perimentation and neglect, many of the monkeys had not

only suffered crippled limbs, but also had torn or bitten off

their own fingers and performed other acts of self-

multilation; they had inflicted wounds on monkeys in ad-

joining cages; bones protruded through their flesh; muscle

tissue was exposed; the cages housing the animals were

tiny, rusted, broken and filthy; no one had properly band-

aged the animals and no veterinarian was ever used; and

the animals’ feeding was neglected, resulting in their going

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without food for days or eating food contaminated by fecal

matter.

IX.

As a consequence of his treatment of the animals, Dr.

Taub was charged with seventeen criminal violations. Pen-

ding those proceedings, the police and plaintiffs herein

PETA and Pacheco took temporary custody of the Silver

Spring Monkeys; the Circuit Court for Montgomery Coun-

ty later ordered them transferred to NIH tacilities in

Poolesville, Maryland. At that facility, the monkeys were

kept in isolation and provided no rehabilitation. Years

later, the monkeys were transferred by NIH, custodians of

the monkeys, to the Delta Regional Primate Research

Center, a component of Tulane University in New Orleans,

Louisiana.

X.

Defendants herein IBR and NIH represented orally

and in writing to plaintiffs, to the public, and to the United

States Congress that: 1) corrective surgery (amputation) to

crippled limbs of the animals would be carried out; 2) the

animals would be resocialized; 3) no invasive research

would take place; and 4) the animals would not be killed but

allowed to live out their natural lives.

XI.

In spite of their assurances and in complete violation

of their commitments to the plaintiffs, to the public and to

the U. S. Congress, defendants have made an express deter-

mination to exterminate the monkeys.

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XII.

On information and belief, the extermination of at

least three Silver Spring Monkeys is imminent.

XIII.

Plaintiffs have offered since 1981 to house, maintain

and resocialize the Silver Spring Monkeys at Primarily

Primates, a refuge specifically established for the care of

abused primates, in San Antonio, Texas. Over two hundred

members of Congress have signed a resolution stating that

this refuge is the most appropriate facility for resocializa-

tion of the monkeys, and still more have written letters re-

questing that the animals be transferred to that facility. As

an alternative, Moorpark College in California has offered

to care for the monkeys, which offer is also supported by

many members of Congress and by plaintiffs.

XIV.

Defendants have refused to transfer the monkeys to

either facility and they have: 1) not performed the needed

corrective (amputation) surgery, and 2) not resocialized the

animals.

XV.

Veterinarians who have viewed these monkeys have

expressed their opinions that euthanasia is not warranted

by the facts of this case, and that the monkeys could live

out their natural lives safely, humanely and comfortably if

transferred to a suitable facility.

XVI.

A number of respected scientists have also opined

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that the pasi abusive, inhumane and unscientific treatment

of the Silver Spring Monkeys would invalidate any further

research or experimentation on the animals. IBR and NIH

have previously expressed their disinterest in conducting

any further research or experimentation on these animals,

and neither Tulane nor Delta has expressed any desire or

intention to use them in connection with any research or

experimentation.

COUNT I

XVIII.

Louisiana has a strong public policy against in-

humane treatment of animals. That policy is expressed in

La. R.S. 14:102.1, which includes as an ‘‘offense affecting

the public sensibility’’ the unjustified killing of animals. Ti-

tle 3 of the Louisiana Revised Statutes at Sections 2431 et

seq., and 2391 et seq. also further the state’s polic. terest

in humane treatment of animals, including proper caie and

avoidance of unjustified euthanasia.

XVIII.

Defendants’ 1) refusal to transfer the monkeys, 2)

their decision to exterminate some of the animals, 3) their

decision to deprive the animals of needed surgery and 4)

their decision to continue to confine and isolate the animals

and deprive them of resocialization, are in violation of

Louisiana's public policy against inhumane treatment of

animals and constitute a public nuisance.

COUNT II

XIX

Defendants above-listed conduct has caused extreme

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emotional distress to plaintiff organizations and their

members, whose mission is to avoid and prevent such in-

humane treatment of animals. Members of plaintiff

organizations, including plaintiff Alex Pacheco, have had

personal contact with the Silver Spring Monkeys and have

developed longstanding relationships marked by deep af-

fection for the animals. Their present treatment and defen-

dants’ proposed killing of three of the animals has caused

plaintiffs mentai anguish and does violence to the missions

of the plaintiff organizations.

XX.

Defendants’ negligent treatment of the Silver

Springs Monkeys and their intentional infliction of emo-

tional distress and mental anguish on plaintiffs are

violative of La. C.C. Art. 2315.

COUNT IIL.

XXI.

Plaintiffs seek an order transferring custody of the

Silver Spring Monkeys from detundants, who have no fur-

ther need, use, or concern for them, to either plaintiffs or

members of Congress who have expressed willingness to

assume such custody.

XXII.

On information and - belief, the Silver Spring

Monkeys are financial burdens to IBR rather than a finan-

cial asset, because the monkeys are not the subjects of any

present experimentation, yet the annual expense of hous-

ing them is approximately $30,000.00 apiece.

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XXIII.

Legal remedies are inadequate to safeguard the

plaintiffs’ rights.

XXIV.

Article 4 of the Louisiana Civil Code provides ‘hat

‘‘[w]hen no rule for a particular situation can be derived

from legislation or custom, the court is bound to proceed

according to equity.” In this case, the highly intelligent

and socialized nature of the Silver Spring Monkeys, Loui-

siana’s public policy of humane treatment to animals,

plaintiffs’ profound concern for the monkeys, and defen-

dants’ disregard for and cruelty towards them dictate that

the only just and equitable solution is transfer of their

custody to plaintiffs or members of Congress.

COUNT IV.

XXV.

If defendants are not enjoined and restrained from

continuing to cruelly confine and deprive the animals of

needed surgery and from killing the monkeys plaintiffs will

suffer irreparable harm and loss in that:

a. Plaintiffs, plaintiff organizations and individual

members thereof would suffer a permanent disruption of

their personal relationships with the monkeys, relation-

ships which were established prior to any previous litiga-

tion in related matters and which continued during such

litigation.

b. Plaintiffs, plaintiff organizations and individual

meinbers thereof maintain a long-standing, sincere commit-

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ment to preventing inhumane treatment of animals,

especially as concerns the monkeys now at Delta, and their

aesthetic, conservational and environmental interests

would be particularly, severely and detrimentally affected.

c. Plaintiffs’ mission as advocates for the right of the

Silver Spring Monkeys, who have no means of protecting

themselves, would be severely impaired.

XXVII.

if defendants are restrained from cruelly confining

and killing the monkeys, their only burden will be to uphold

state statutes requiring humane treatment of animals.

XXVIII.

There are no adequate pecuniary standards for the

measurement of damages which have been and would be

sustained by the plaintiffs, who have suffered as a result of

the treatment of these animals and will suffer even more if

the defendants are not prohibited from needlessly killing

the monkeys.

WHEREFORE, plaintiffs pray that this Court:

A. Immediately grant a temporary restraining order en-

joining the defendants from in any way cruelly confining

and destroying the Silver Spring Monkeys during the

pendency of this proceeding;

B. Grant a preliminary injunction to the same effect as

paragraph A;

C. Grant a permanent injunction enjoining the above-

described conduct;

_ %

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D. Order that custody of the monkeys be given to the

plaintiffs or to members of the U. S. Congress; and

E. Grant whatever additional relief may be dictated by

law and equity together with costs and attorneys fees.

Rospectfully Submitted,

/s) Margaret E. Woodward

BAR No. 13677

610 POYDRAS ST., SUITE 318

NEW ORLEANS, LA 70130

PHONE: 504-525-9538

ATTORNEY FOR PETA

PLEASE SERVE:

1. ADMINISTRATORS OF TULANE’ EDUCA-

TIONAL FUND

Through Ron Mason or Clarence Sheps

6823 St. Charles Avenue

New Orleans, LA 70118

2. INSTITUTE FOR BEHAVIOR... RESOURCES

(Please Hold Service)

* 3. NATIONAL INSTITUTES OF HEALTH

(Please Hold Service)

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VERIFICATION

1, Alex Pacheco have read the foregoing Petition for

Declaratory and/or Injunctive Relief and duly swear that

all allegations contained therein are true to the best of my

knowledge and belief.

Washington, D.C., this 28th day of December, 1988.

/s/ Alex Pacheco