Opposition Brief — International Primate Protection League v. Administrators of Tulane Ed. Fund

IN THE re

Supreme Court of the United States

OCTOBER TERM, 1990

INTERNATIONAL PRIMATE PROTECTION LEAGUE

AND ITS MEMBERS, et al.,

™ Petitioners,

ADMINISTRATORS OF TULANE EDUCATIONAL FUND, et al.,

Respondents.

On.Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR RESPONDENT INSTITUTES FOR

BEHAVIOR RESOURCES, INC. IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

EDGAR H. BRENNER *

The Behavioral Law Center

3301 New Mexico Avenue, N.W.

Washington, D.C. 20016

(202) 244-8688

Attorney for Respondent

Of Counsel Institutes for Behavior

RAYMOND D. KLINE Resources, Inc.

October 31, 1990 * Counsel of Record

WILSON - Erpzs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Whether a state court action seeking injunctive re-

lief against agents and employees of a federal agency

[in this case the National Institutes of Health (“NIH”) |

is subject to removal under 28 U.S.C. § 1442(a) (1) when

the relief sought against such agents and employees is

clearly set forth in the “Petition for Declaratory and/or

Injunctive Relief,” although the agents and employees

are not individually listed in the caption of the Petition?

2. Whether private plaintiffs* who have secured a

Temporary Restraining Order in :cate court, which or-

der on its face affects property in which a federal agency

(in this case NIH) has an interest, and who after re-

moval to federal court secured an injunction against the

agency and its agents, are entitled to a remand to state

court by contending that there may be no federal inter-

est to be protected?

3. In light of the clearly articulated federal policy

[reflected in the Animal Welfare Act, 7 U.S.C. § 2131, et

seq. (1982)] establishing an elaborate federal regulatory

scheme for the protection of laboratory animals and pre-

cluding disruption of scientific research by private special

interest groups, did the Fifth Circuit properly deny

standing to the Primate League, which sought custody

of privately owned research animals being used for NIH-

sponsored scientific experiments?

* All of the petitioners, appellants and plaintiffs below, Inter-

national 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, are for

clarity and simplicity sometimes hereinafter referred to as “Primate

League.”

(i)

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-

nas cccencnetamccnnescsnceccasorcscecsece i

I CEI 5. sccccscnccosecssecssecssee-sessesseeesees Vv

OPINION BELOW .................. tit liaidllameapinadhinnnetiniedintmosences 1

a 1

COUNTERSTATEMENT OF THE CASE... 2

REASONS FOR DENYING THE WRIT . 7

I. THIS IS NOT A CASE TO RESOLVE THE

QUESTION OF WHETHER OR NOT A FED-

ERAL AGENCY CAN REMOVE TO FED-

ERAL COURT UNDER 28 U.S.C. § 1442 (a) (1)

WHEN RELIEF IS SOUGHT ONLY AGAINST

THE AGENCY; IN THIS CASE, THE PETI-

TION SEEKS INJUNCTIVE RELIEF NOT

ONLY AGAINST THE AGENCY (NIH) BUT

ALSO AN INJUNCTION AGAINST THE

“AGENTS, OFFICERS, REPRESENTA-

TT eeiisiiitemmenessenpasenscee 7

Il. THE FOURTH CIRCUIT IN THE /PPL CASE

NEITHER HELD NOR IMPLIED THAT A

SUIT IN STATE COURT UNDER STATE

LAW, SEEKING RELIEF AGAINST THE

OFFICERS AND AGENTS OF NIH, IBR, AND

TULANE, COULD NOT BE REMOVED TO

FPVYERAL COURT PURSUANT TO SEC-

TION 1442(a) (1) WHERE FEDERAL COURT

STANDING WOULD BE REQUIRED ............. 10

Ill THE FEDERAL INTEREST JUSTIFYING

REMOVAL IS CLEARLY ESTABLISHED BY

THE RELIEF SOUGHT BY PETITIONERS,

AND THE TEMPORARY RESTRAINING

ORDERS THEY SECURED AGAINST NIH

Ee 11

iv

TABLE OF CONTENTS—Continued

Page

_IV. THE COURT BELOW PROPERLY CON-

CLUDED THAT PETITIONERS LACKED

STANDING TO ASSERT THEIR STATE

gg °C S aa 13

CONCLUSION .................. i a ae oe 18

IIE scunsscsetsnscuncseticensisbaiiindaidcvebsdaelet ets Rare ne la

I I 5 ccs cnerenccsnetcaieniditian NE I AM WAT Scr sa 3a

IIIT TP sceincsomnteinonnintitenidibicniiletac iene Cue ter one ae 6a

v

TABLE OF AUTHORITIES

Cases: Page

Associated General Contractors Vv. Otter Tail Power

Co., 611 F.2d 684 (8th Cir. 1979) _.....00000 14

Blackmar V. Guerre, 342 U.S. 512 (1952) pete 9

Boyle v. United Technologies Corp., 482 U.S. 500

RE a ee aT Te 16

International Primate Protection League Vv. Tulane

Educational Fund, 895 F.2d 1056 (5th Cir.

EEE ISS ee ee ee Fane ee ee eT 5

International Primate Protection League, et al. V.

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

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

EES LS ee ee Mae eek ee 2, 10, 13, 14

Johnson V. Showers, 747 F.2d 1228 (8th Cir.

TTI cainanbietiatibeaindiniehetasinindiiahiatadedasasiinebimanemniniaianianhiinunis 7,9

Larson V. Domestic and Foreign Commerce Corp.,

SO 9

Lovell Mfg., Div. of Patterson-Erie Corp. V.

Export-Import Bank of the United States, 843

I 7,13

Mir Vv. Frostbura, 646 F.2d 342 (9th Cir. 1980)... 11

Phillips Petroleum v. Shutts, 472 U.S. 797 (1985) ..

Robinson v. National Cash Register Co., 808 F.2d

8 EE Sa a 11

Taub v. State, 206 Md. 439, 463 A.2d 819 (1983)... 4

United Mine Workers of America V. Gibbs, 383

RE RES ee eee we eS 11

Willingham v. Morgan, 395 U.S. 402 (1969) nth ae 9

Constitutions:

U.S. Const. Art. ITT 0... a oe oe 6, 11, 14,17

Statutes :

The Animal Welfare Act, 7 U.S.C. § 2131 et seq.

AES NES EE Sa a Ree ee we ee ee ae 3,14

7 U.S.C. § 2143 (1982) (codified as amended at

7 U.S.C. §2143(a) (6) (a) (i) (ii) (Supp. V

FEE se SC ee re 17

i ametimiensibonmsseiath 16

a ceeueipnaseaianiiinns 6

vi

TABLE OF AUTHORITIES—Continued

Page

EES ae nen SFA ee ee EES 3, 10

28 U.S.C. § 1442(a) (1)... 6, 7, 8, 9, 10, 11

I x

Court Rules:

a 6

I i eeniiseibeinetnaanbe 7

Legislative Materials :

S. Rep. No. 1281, 89th Cong., 2d Sess. (1966) 15

H.R. Rep. No. 1651, 91st Cong., 2d Sess. (1970) 15

H. Conf. Rep. No. 447, 99th Cong., Ist Sess.

SO Re ee ee Ree 15

Miscellaneous:

HHS-GAB, Decision No. 538, May 31,1984... 2

Research Animals, Federal Costs for Care of the

Silver Spring Monkeys, GAO/HRD-88-89 (B-

ERS ER AES eae eee eee cameauieal 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-89

INTERNATIONAL PRIMATE PROTECTION LEAGUE

AND ITS MEMBERS, et al.,

7 Petitioners, .

ADMINISTRATORS OF TULANE EDUCATIONAL FUND, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR RESPONDENT INSTITUTES FOR

BEHAVIOR RESOURCES, INC. IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

Respondent, Institutes for Behavior Resources, Inc.,

respectfully requests that the petition for writ of certio-

rari be denied.

OPINION BELOW

The opinion of the Court of Appeals is reported at 895

F.2d 1056. Petitioners’ Appendix, Al-15, omits from the

opinion of the Court of Appeals half a paragraph of text

accompanying footnote 4.

STATUTES INVOLVED

28 U.S.C. § 1442(a) (1) and the Animal Welfare Act,

7 U.S.C. § 2131 et seg. (1982).

2

COUNTERSTATEMENT OF THE CASE

Respondent, Institutes for Behavior Resources, Inc.

(“IBR”), objects to petitioners’ statement of the case.’

A more accurate statement of the facts can be derived

from the Fourth Circuit opinion in International Primate

Protection League, et al. v. Institute for Behavioral Re-

search, Inc., 799 F.2d 934 (4th Cir. 1986), cert. denied,

481 U.S. 1004 (1987), where virtually identical prayers

for relief to those in this action were asserted by two

of the petitioners; from the IBR Brief in Opposition to

the Petition for a Writ of Certiorari to the Fourth Cir-

cuit; and from the opinion below.

|v. Edward Taub, the chief of the Behavioral Biology

Center of the Institutes for Behavior Resources, Inc., was

studying the capacity of monkeys to learn to use a limb

after nerves had been severed. Funded by the National

Institutes of Health (“NIH”), the project amplified Dr.

Taub’s earlier research in this area and attempted to

discover benefits for the rehabilitation of human patients

suffering from a serious neurological injury such as

stroke. 799 F.2d at 936.

Alex Pacheco, then an undergraduate student, who,

unknown to Dr. Taub, had founded People for the Ethical

Treatment of Animals (“PETA”), offered to work as a

volunteer for Taub at the IBR animal laboratory facil-

ity in Silver Spring, Maryland. Dr. Taub gave Pacheco

the keys to the premises and permission to enter at any

time, and Pacheco came regularly to the laboratory dur-

ing the summer of 1981. Pacheco asked the Montgomery

County Police Department to investigate IBR for animal

cruelty under Section 59 of the Maryland Code.

1 For example, contrary to petitioners’ statement that Dr. Taub’s

experiments were “terminated for unjustifiable cruelty,” Pet. 3,

the Department of Health and Human Services’ Departmental Grant

Appeals Board exonerated Dr. Taub as to all charges of animal

cruelty. HHS-GAB, Decision No. 538, May 31, 1984.

3

The police obtained a search warrant from the Circuit

Court for Montgomery County and on September 11,

1981 seized from IBR the 17 monkeys in the experiment.

Subsequently, criminal charges were filed against Dr.

Taub alleging 17 counts involving 119 violations of the

Maryland animal cruelty statute. 799 F.2d at 936.

On October 9, 1981, the Cireuit Court for Montgomery

County, without opposition from IBR, directed the trans-

fer of the monkeys to an NIH facility in Poolesville,

Maryland. The order was tg remain in effect “until fur-

ther Order of this Court or the termination of the pend-

ing criminal prosecution against Dr. Taub, whichever

occurs first.” 799 F.2d at 936.

Dr. Taub stood trial in November 1981 in the District

Court for Montgomery County, which entered orders of

conviction for failure to provide “necessary veterinary

care” for six monkeys and acquitted Dr. Taub of all the

other 113 charges. Fearing that the court order on cus-

tody of the monkeys would partially expire with the ac-

quittals, PETA acted quickly to prevent the return of

any animals to IBR. Along with the International Pri-

mate Protection League and others, PETA filed a bill of

complaint on December 3, 1981 in the Circuit Court for

Montgomery County in which they purported to speak

for “their own and class interests and as next friends of

seventeen (17) non-human primates.” PETA alleged

that a civil inquiry would show IBR violations of the

Maryland animal cruelty laws and the federal Animal

Welfare Act, 7 U.S.C. § 2131 et seg. PETA asked the

court to designate the plaintiffs as guardians of the mon-

keys, and to enjoin all parties from permitting IBR to

regain possession. 799 F.2d at 936.

NIH removed the case to the U.S. District Court for

the District of Maryland pursuant to 28 U.S.C. § 1441.

Meanwhile, the Maryland criminal prosecution also

moved toward resolution. Dr. Taub appealed his six Dis-

trict Court convigtions to the Cirevit Court for Mont-

4.

gomery County, where a jury, after a “trial de novo,” re-

turned a guilty verdict against Taub on one count (fail-

ure to provide necessary veterinary care to one monkey).

The Court of Appeals of Maryland then granted a writ

of certiorari and in August 1983 reversed the conviction,

holding that Article 27, Section 59 of the Maryland Code

did not apply to an institution conducting medical re-

search pursuant to a federal program. Taub v. State,

296 Md. 439, 463 A.2d 819 (1983).

After the termination of criminal proceedings, the

Maryland suit became the only remaining litigation over

the custody of the monkeys. In 1985 the Maryland federal

district court dismissed the case for lack of standing.

In June 1986, the plaintiff appealed to the Fourth Cir-

cuit. After submission of the case, the monkeys were

transferred by NIH from Poolesville, Maryland, to Tu-

lane’s Delta Primate Center in Covington, Louisiana.

Primate League apparently regarded the Delta Primate

Center as an unsuitable custodian and objected to the 90-

day quarantine that was imposed upon the primates as

newly arrived animals at the facility. In the Court of

Appeals, Primate League sought, inter alia, a show cause

order for return of the primates to Poolesville, Maryland,

or a transfer of custody of the primates to their designee.

The Fourth Circuit, having been advised that IBR, the

owner of the primates, did not object to their transfer by

NIH to the Delta Primate Center, denied the motion on

September 3, 1986. IBR Brief in Opposition to Certio-

rari in No. 86-1115, at 2.

The Fourth Circuit affirmed the District Court, stating

in part—

“In this case we must decide whether a group of

private individuals may challenge a medical research-

er’s compliance with federal standards for the care of

laboratory animals. Because we find that the plain-

tiffs lack standing to bring such a lawsuit, we affirm

the judgment of the district court in its dismissal of

this action.

5

“To imply a cause of action in these plaintiffs

might entail serious consequences. It might open the

use of animals in biomedical research to the hazards

and vicissitudes of courtroom litigation. It may draw

judges into the supervision and regulation of labora-

tory research. It might unleash a spate of private

lawsuits that would impede advances made by med-

ical science in the alleviation of human suffering. To

risk consequences of this magnitude in the absence of

clear direction from the Congress would be ill-advised.

In fact, we are persuaded that Congress intended that

the independence of medical research be respected and

that administrative enforcement govern the Animal!

Welfare Act.” 799 F.2d at 935.

Primate League then petitioned this Court for a writ

of certiorari which was denied in 1987. 481 U.S. 1004

(1987).

In 1988, NIH determined, based on the recommenda-

tion of a panel of independent experts in veterinary care,

primate behavior, and neurology, that three of the mon-

keys should be euthanized because of the amount of dis-

tress they were experiencing. Plans were made to hu-

manely euthanize them on December 28-31, 1988. Memor-

andum in Opposition to Motion to Compel (by NIH)

August 11, 1989, at 3. NIH hoped to gain, through the

procedure and subsequent autopsy, knowledge that might

lead to improvements in rehabilitation therapy for indi-

viduals who have suffered brain or spinal cord damage.

International Primate Protection League v. Tulane Edu-

cational Fund, 895 F.2d. 1056, 1058 (5th Cir. 1990).

On December 28, 1988, Primate League, PETA, and

others filed suit in the Civil District Court for the Parish

of Orleans in the State of Louisiana seeking, inter alia,

injunctive relief against the “agents and officers of NIH,

IBR, and the administrator of the Tulane Education

Fund,” and seeking custody of the monkeys. 895 F.2d at

1058, Pet. App. A-30-32.

In December of 1989, the state cou.t issued a temporary

restraining order which provided as follows:

6

“It is ORDERED that a temporary restraining order

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

ministrators of the Tulane Educational Fund, their

agents, attorneys and servants, from inhumane treat-

ment towards, or euthanasia or other destruction of

those macaque monkeys known as the ‘Silver Spring

Monkeys’, placed in their keeping by the National

Institute of Health and/or the Institute for Be-

havioral Research.” Appendix A.

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. After removal, petitioners

moved for and secured a temporary restraining order

(“TRO”) from the federal eourt which provided,

“IT IS ORDERED that a temporary restraining or-

der be and the same is hereby issued, enjoining the

Administrators of the Tulane Educational Fund, the

National Institutes of Health, and their agents, attor-

neys and servants, from inhumane treatment towards,

or euthanasia or other destruction of those macaque

monkeys known as the ‘Silver Spring Monkeys’.” Ap-

pendix B.

As the district court extended the temporary restrain-

ing order beyond the 20 days permitted by Fed. R. Civ. P.

65(b), the extended TRO became the functional equiva-

lent of a preliminary injunction, appealable under 28

U.S.C. § 1292(a) (1). 895 F.2d at 1058.

The court below concluded that petitioners did not meet

the standing requirement of Article III, and dismissed

the entire case. In reaching this result the court relied

heavily on the Fourth Circuit decision in the /PPL case.

The Fifth Circuit found no merit in petitioners’ conten-

tion that ..ey could establish standing under state law

because, as the court properly held, standing in federal

courts, including removed actions, is governed exclusively

by Article III of the Constitution. 895 F.2d at 1058-61.

7

REASONS FOR DENYING THE WRIT

I. THIS IS NOT A CASE TO RESOLVE THE QUES-

TION OF WHETHER OR NOT A _ FEDERAL

AGENCY CAN REMOVE TO FEDERAL COURT

UNDER 28 US.C. § 1442(a)(1), WHEN RELIEF IS

SOUGHT ONLY AGAINST THE AGENCY; IN THIS

CASE, THE PETITION SEEKS INJUNCTIVE RE-

LIEF NOT ONLY AGAINST THE AGENCY (NIH)

BUT ALSO AN INJUNCTION AGAINST THE

“AGENTS, OFFICERS, REPRESENTATIVES” OF

NIH.

Petitioners are correct that the district courts are di-

vided on the question of whether a federal agency, in an

action seeking relief only against a federal agency, can

remove the case to federal court under 28 U.S.C. § 1442

(a)(1); the statute on its face authorizes removal by

“any officer of the United States or any agency thereof,”

but not by the agency itself.

The Courts of Appeals are also divided on this question.

The Fifth C'reuit in the opinion below, and in other cases,

and the Eighth Circuit in Johnson v. Showers, 747 F.2d

1228 (8th Cir. 1984), have held that the objective of the

statute can be better achieved by permitting agencies, as

well as their officers, to remove cases to federal court.

This would seem to be the sounder view where the agency’s

officers and agents could be bound by an injunction against

it. Fed. R. Civ. P. 65(d). Only the Third Circuit has

taken the opposite view. See Lovell Mfg., Div. of Pat-

terson-Erie Corp. V. Export-Import Bank of the United

States, 843 F.2d 725 (3d Cir. 1988).

The Lovell case involved a suit against the Export-

Import Bank of the United States (“Eximbank”) and

the Foreign Credit Insurance Association (“FCIA”), an

association of private insurance companies formed to sup-

port Eximbank’s statutory mandate of promoting United

States exports. 843 F.2d at 727. Originally one claim by

the exporter, Lovell, was against FICA on a commercial

8

risk pol:cy. A second claim was against Eximbank on a

political risk policy. Jd.

Shortly after the case was removed from state to fed-

eral court, Lovell dropped the political risk claim. Ac-

cordingly, the litigation was “predominantly, if not ex-

clusively, a state law claim against an association of pri-

vate insurance companies.” 843 F.2d at 728, 732. Exim-

bank’s only involvement was based on a separate reinsur-

ance agreement with FCIA to which Lovell was not a

party. /d. Thus Eximbank was only a “nominal defend-

ant” and as the court observed “. . . no reason appears

why Eximbank has not been formally dismissed from this

case.”” 843 F.2d at 731 n.8.

The action could not have resulted in a judgment

against Eximbank. Eximbank’s “tangential interest” °

Was in not having a reinsurance contract claim made by

FCIA against the United States, presumably in the

United States Claims Court under 28 U.S.C. § 1491

(1982). In no event could there be a judgment for Lovell

granting relief against an officer of Eximbank either in

the pending case or in follow-up litigation.

Since, as the Third Circuit concluded, “the purpose of

a section 1442 removal is to protect federal officials from

unfriendly state forums... for conduct performed under

color of federal office,” it reasoned that it was doubtful

that allowing removal where relief could be secured only

against private insurance companies would serve any such

purpose. 843 F.2d at 734 n.13. Accordingly, a remand to

state court was directed. 843 F.2d at 735.

However, in this case, petitioners sought injunctive re-

lief not only against NIH but also against its officers.

Pet. App. A-30-32. We are not aware of any case that

holds that removal under Section 1442(a) (1) is precluded

where, as here, injunctive relief is specifically sought

* 843 F.2d at 733.

9

against the “agents, officers, representatives” of a federal

agency. Consequently, there is no contra-authority, nor

is there a split between circuits applicable to the control-

ling facts of this case.

The officers of NIH are not named as defendants in the

caption. However, it would be excessively formalistic to

condition removal on the style of the case, rather than on

the relief sought against federal officers. For example, in

Johnson Vv. Showers, supra, the Eighth Circuit allowed a

Section 1442(a)(1) removal by an agency “. . . based on

the government’s unopposed view that the action should

be deemed as one brought against FEMA’s Director .. .”

even though the Director was not listed in the caption.

747 F.2d at 1229.

In Willingham v. Morgan, 395 U.S. 402, 406-07 (1969),

this Court held that 28 U.S.C. § 1442 was to be -broadly

construed “to cover all cases where federal officers can

raise a colorable defense arising out of their duty to en-

force federal law.”

Usually, to avoid the defense of sovereign immunity,

suits to enjoin governmental conduct are nominally

brought against officers or agents of a government agency

alleging that the officer or agent was acting in excess of

his authority, or that his conduct was not legally justified.

See, e.g., Larson Vv. Domestic and Foreign Commerce

Corp., 337 U.S. €82 (1949); Blackmar v. Guerre, 342

U.S. 515 (1952).

Such suits are disfavored where, as here, property in

which the government has an interest is involved, or gov-

ernmental functions may be affected. As this Court stated

in Larson, supra, at 703:

“The Government, as representative of the com-

munity as a whole, cannot be stopped in its tracks

by any plaintiff who presents a disputed question of

property or contract right. As was early recognized,

‘The interference of the Courts with the performance

10

of the ordinary duties of the executive departments

of the government, would be productive of nothing

but mischief. ...’”

In light of these important public policy considerations,

applicable to actions such as this one, the availability of

removal to federal courts should be based on the reality

of the relief sought. It should not turn on such irrelevant

factors as the incompetence or deviousness of counsel who

draft the petition.

The Fifth Circuit was clearly correct in permitting the

removal under 28 U.S.C. § 1442(a)(1). This is not a

case to review the separate question of whether removal

under Section 1442(a)(1) is proper in a state court ac-

tion against an agency in which relief is not sought

against its officers or agents.

il. THE FOURTH CIRCUIT IN THE /PPL CASE NEI-

THER HELD NOR IMPLIED THAT A SUIT IN

STATE COURT UNDER STATE LAW, SEEKING

RELIEF AGAINST THE OFFICERS AND AGENTS

OF NIH, IBR, AND TULANE, COULD NOT BE RE-

MOVED TO FEDERAL COURT PURSUANT TO

SECTION 1442(a)(1) WHERE FEDERAL COURT

STANDING WOULD BE REQUIRED.

Petitioners misconstrued the implications of Interna-

tional Primate Protection League v. Institutes for Behav-

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

argue that the refusal of the court to take jurisdiction

over their state law claims against NIH implied a deter-

mination that removal of a similar action under Section

1442(a) (1), when filed in Louisiana would not be proper,

and that res judicata precluded relitigation of the juris-

dictional issue in the Louisiana action. Pet. 11-13.

The Fourth Circuit case did not involve Section 1442 in

any respect. The removal, exclusively under Section 1441

(a), was based on the existence of a federal question.

Since, before trial, standing was found to be lacking as

11

to the federal claims, the state law claims were dismissed

rather than remanded pursuant to the rule of United

Mine Workers of America Vv. Gibbs, 383 U.S. 715 (1966).

The situation is entirely different when a case is re-

moved under Section 1442(a). To protect the interest of

federal officers, and the federal government, the entire

case is removed and state law issues are decided in fed-

eral court even in the absence of a federal question and

notwithstanding that the action would not be within the

original jurisdiction of the federal court. Mir v. Frost-

burg, 646 F.2d 342, 344 (9th Cir. 1980).

Consequently, there was no res judicata effect favor-

able to petitioners. The Fourth Circuit opinion could only

have been res judicata as to the absence of U.S. Const.

Art. III federal court standing.

Once the removal was effected, Article III principles

of standing become applicable to the state claims, as the

court below held. 895 F.2d at 1061. Since Primate League

was again seeking custody of the monkeys, res judicata

precluded relitigation of the Fourth Circuit’s determina-

tion that petitioners lacked federal court standing with

respect to the removed claims. Cf. Robinson v. National

Cash Register Co., 808 F.2d 1119, 1124-25 (5th Cir.

1987).

Ill. THE FEDERAL INTEREST JUSTIFYING RE-

MOVAL IS CLEARY ESTABLISHED BY THE

RELIEF SOUGHT BY PETITIONERS, AND THE

TEMPORARY RESTRAINING ORDER THEY SE-

CUREP AGAINST NIH AND ITS AGENTS.

The federal interest justifying removal is readily ap-

parent. In the District Court NIH submitted a declara-

tion of Dr. William F. Raub, then Deputy Director of

NIH, which contains the following statement:

“As custodian of the animals, NIH will continue to

exercise its best judgment to carry out its plan, de-

veloped in consultation with experts in veterinary

12

eare, rehabilitation medicine and primate behavior,

that: (1) the unoperated animals be introduced into

group-living arrangements appropriate to maintaining

their long-term well-being; and (2) the experi-

mentally disabled animals be cared for individually

until euthanasia is required because of significant

pain or distress or they die of natura! causes. To

date, IBR has acquiesced to NIH retaining custody

and control of the animals and to the actions NIH

has taken to carry out its plan.’ Appendix C, para. 8.

The NIH role was well known. On June 3, 1988, the

United States General Accounting Office issued a report

to Congress concerning the cost incurred by the federal

government in caring for the monkeys. That report

states in part: -

“Table 1 shows the composition of the government’s

$105,084 cost, as of February 29, 1988, for the care

of the Silver Spring Monkeys.” Research Animals,

Federal Costs for Care of the Silver Spring Monkeys,

GAO /HRD-88-89 ( B-230545), at 4.

Of that amount, NIH estimated that it had spent

$11,600 for litigation involving the monkeys, not count-

ing costs incurred by the United States Attorney’s Office.

Id. at 6-7.

Consequently, it was not surprising that petitioners,

when they filed their state court action, named NIH as

a defendant and sought relief not only against NIH, but

also its “agents, officers, representatives, employees.”’ Pet.

App. A31-32.

The Civil District Court for the Parish of Orleans on

December 29, 1988 issued a TRO which provided as

follows:

“IT IS ORDERED that a temporary restraining order

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

ministrators of the Tulane Educational Fund, their

agents, attorneys and servants, from inhumane treat-

ment towards, or euthanasia or other destruction of

13

those macaque monkeys known as the ‘Silver Spring

Monkeys’, placed in their keeping by the National

Institutes of Health and/or the Institute for Be-

havioral Research.” Appendix A.

After the case was removed to federal court, petition-

er sought a TRO against “NIH and their agents, at-

torneys, and servants, from inhumane treatment towards,

or euthanasia or other destruction of those macaque

monkeys know as the ‘Silver Spring Monkeys.’” Ap-

pendix B.

The District Court then issued a TRO which provided:

. fa SIs ORDERED that a temporary restraining or-

_ der be and the same is hereby issued, enjoining the

Administrators of the Tulane Educational Fund, the

National Institutes of Health, and their agents, attor-

neys, and servants, from inhumane treatment, or eu-

thanasia or other destruction of monkeys known as

the ‘Silver Spring Monkeys’.” Appendix B, at 2.

Having sought and secured injunctive relief against

NIH and its “agents, officers. representatives,” petition-

ers are in no position to contend that there is no federal

interest to be protected in federal court. The record

establishes that not withstanding NIH’s interest in its

research protocol announced in December 1988, the eutha-

nasia and experimentation were not zonducted until after

the TRO was vacated.

The federal interest is “direct and substantial” when

an agency of the United States may be bound by a judg-

ment or order in the action. Lovell, 843 F.2d at 733 n.12.

Iv. THE COURT BELOW PROPERLY CONCLUDED

THAT PETITIONERS LACKED STANDING TO

ASSERT THEIR STATE LAW CLAIMS.

Petitioners concede that the Fourth Circuit in 7PPL

was correct in denying them federal court standing under

the Animal Welfare Act. Pet. 21. They attempt to dis-

tinguish 7PPL on the ground that only in this Fifth Cir-

14

cuit action do they seek access restoring custody of the

monkeys. Jd. This argument is incorrect. In the Mary-

land action, petitioners sought to be made guardians of

the monkeys, and the Fourth Circuit specifically stated

in its opinion that “|p]laintiffs also argue that Mary-

land law supports their claim for custody of the mon-

keys.” 799 F.2d at 940-41. Consequently, the relief

sought does not serve to distinguish the case below from

the Fourth Circuit case.

Secondly, petitioners contend that their state law

claims seeking “abatement of a public nuisance,” and for

“tortious negligence and intentional infliction of emo-

tional distress,” should not have been dismissed because

they “would have easily cleared the standing hurdle in

state court.” Pet. 18-19. However, the Court below cor-

rectly held the Article III standing must be established

under federal, not state law, principles. Phillips Petro-

leum Co. v. Shutts, 472 U.S. 797, 804 (1985). This rule

applies to cases originally filed in state court and re-

moved to federal court. Associated General Contractors

v. Otter Tail Power Co., 611 F.2d 684, 686, 691-94 (8th

Cir. 1979) (state law claims preempted).

Particularly in the case now under review, the applica-

tion of federal law criteria to the standing issue was

necessary to effectuate the federal purpose of furthering

research with animals with the objective of curing the

“afflictions of mankind,” and precluding interference

with scientists engaged in animal research.

These clearly articulated federal objectives were em-

phasized in the Fourth Circuit J/PPL case. The court

stated :

“The Animal Welfare Act, 7 U.S.C. §§ 2131 et seq.,

is the federal statute on which plaintiffs rely in de-

fining their allegations of mistreatment. The Act

seeks to insure that ‘animals intended for use in re-

search facilities .. . are provided humane care and

treatment.’ 7 U.S.C. § 2131(1). There is no indica-

15

ticn, however, that Congress intended this goal to

come at the expense of progress in medical research.

To the contrary, both the language of the statute and

the means chosen by Congress to enforce it preserve

the hope that responsible primate research holds for

the treatment and cure of humankind’s most terrible

afflictions. The statutory design is, in turn, inconsist-

ent with the private right of action that plaintiffs

assert. A review of the Act thus underscores two

points. One is a commitment to administrative super-

vision of animal welfare. The other is the subordina-

tion of such supervision to the continued independence

of research scientists. The Secretary’s rule-making

authority does not extend to the design of experi-

ments ; the Secretary’s enforcement authority does not

extend to the confiscation of animals in use. In the

words of Congress, ‘Under this bill the research scien-

tist still holds the key to the laboratory door.’ H.R.

Rep. No. 91-1651, 91st Cong., 2nd Sess., reprinted in

1970 U.S. Code Cong. & Ad. News 5103, 5104. See

also S. Rep. No. 1281, 89th Cong., 2nd Sess., reprinted

in 1966 U.S. Code Cong. & Ad. News 2635, 2637.

“The amicus curiae brief of sixty-eight scientific and

medical organizations reviews the history underlying

these priorities. Research with primates helped to

lead, for example, to the development of the polio vac-

cine, and other animal research has contributed to the

discovery of insulin, the invention of transplantation

techniques, and tHe improvement of cancer therapies.

Amici predict that animal research will play some

part in the prevention and treatment of such illnesses

as multiple sclerosis, AIDS, and Alzheimer’s disease.

Recent amendments to the Animal Welfare Act have

accordingly reaffirmed the Congressional finding that

‘the use of animals is instrumental in certain research

and education or for advancing knowledge of cures

and treatments for diseases and injuries which afflict

both humans and animals.’ H. Conf. Rep. No. 99-447,

99th Cong., Ist Sess., reprinted in 1985 U.S. Code

Cong. & Ad. News 1676, 2518.

16

“Consistent with this purpose, Congress crafted a

comprehensive plan for the regulation, inspection, and

sanction of medical facilities that utilize animals in

research. It is clear that the supervisory goals of the

statute were to be realized through a regime of ad-

ministrative enforcement, with the right of judicial

review for an aggrieved facility. 7 U.S.C. § 2149(b).

It is equally clear that these goals were not to be

realized through a succession of private lawsuits.”

799 F.2d at 939-40. (Emphasis supplied. )

In order to protect the federal interest described in‘

IPPL, federal preemption of inconsistent state law is

clearly required. This Court in Boyle v. United Technolo-

gies Corp., 482 U.S. 500 (1988), a case involving the

government contractors’ liability in tort to third parties,

set forth as follows the considerations applicable to the

displacement of state law.

“Displacement, will occur only where, as we have

variously described, a ‘significant conflict’ exists be-

tween an identifiable ‘federal policy or interest and

the [operation] of state law,’ or the application of

state law would ‘frustrate specific objectives’ of fed-

eral legislation. . . The conflict with federal policy

need not be as sharp as that which must exist for

ordinary pre-emption when Congress legislates ‘in a

field which States have traditionally occupied.’ ... Or

to put the point differently, the fact that the area in

question is one of unique federal concern changes what

would otherwise be a conflict that cannot produce pre-

emption into one that can. But conflict there must be.

In some cases, for example where the federal interest

requires a uniform rule, the entire body of state law

applicable to the area conflicts and is replaced by

federal rules. ... In others, the conflict is more nar-

row, and only particular elements of state law are

superseded.” 487 U.S. at 507-08 (citations and foot-

notes omitted).

Viewed ip this context, the federal policy of funding

animal research in an effort to cure illness, maintaining

17

the independence of research scientists and precluding

private lawsuits under the Animal Welfare Act in favor

of administrative enforcement of animal care in research

facilities, would be frustrated if litigants, such as peti-

tioners, had standing to bring lawsuits based on state

tort and nuisance laws to secure custody of research ani-

mals or to otherwise disrupt ongoing research.’ Under

the Animal Welfare Act, the Secretary of Agriculture

is precluded from promulgating regulations “with regard

to the design, outlines, or guidelines of actual research or

experimentation by a research facility ... or orders with

regard to the performance of actual research or experi-

mentation.” 7 U.S.C. § 2143 (1982) (codified as amended

at 7 U.S.C. § 2143(a) (6) (a) (i) (ii) (Supp. V 1987)).

In addition, the Act provides that nothing “shall authorize

the Secretary, during inspection, to interrupt the conduct

of actual research or experimentation.” Jd. at (iii).

It is therefore clear that petitioners were seeking cus-

tody of pri.ately owned research animals entrusted to

NIH, relief which would not even be available to the Sec-

retary of Agriculture under the Animal Welfare Act since

granting it would serve “to interrupt the conduct of ac-

tual research or experimentation.”

Under the Animal Welfare Act “the research scientist

holds the key to the laboratory door.” JPPL, 799 F.2d at

939. It would be inconsistent with this policy to hand out

additional keys to animal rights activists permitting them

to interrupt animal research by asserting causes of action

based on state law to secure custody of privately owned,

federally funded research animals.

The Fifth Circuit, after removal, properly applied Art.

III standing concepts to the Petition for Declarative and /

or Injunctive Relief.

* Federal preemption is equally applicable to state law causes

of action against scientists engaged in animal research asserted

in state courts.

18

CONCLUSION

For the reasons stated above, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

EDGAR H. BRENNER *

The Behavioral Law Center

3301 New Mexico Avenue, N.W.

Washington, D.C. 20016

(202) 244-8688

; Attorney for Respondent

Of Counsel Institutes for Behavior

RAYMOND D. KLINE Resources, Inc.

October 31, 1990 * Counsel of Record

APPENDICES

la

APPENDIX A

CIVIL DISTRICT COURT

FOR THE PARISH OF ORLEANS

No. 88-24949 Division C Docket 5

INTERNATIONAL PRIMATE PROTECTION LEAGUE, et al.

versus

ADMINISTRATORS OF THE TULANE EDUCATIONAL

FUND, et al.

TEMPORARY RESTRAINING ORDER

Considering the above and foregoing verified petition

for temporary restraining order and preliminary and

permanent injunctiom and for good cause shown,

IT IS ORDERED that a temporary restraining order

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

istrators of the Tulane Educational Fund, their agents

attorneys and servants, from inhumane treatment to-

wards, or euthanasia or other destruction of those

macaque monkeys known as the “Silver Spring Monkeys”,

placed in their keeping by the National Institute of

Health and/or the Institute for Behavioral Research,

IT IS FURTHER ORDERED that Petitioners post

security in the amount of $15,000.00.

IT IS FURTHER ORDERED that Petitioners’ request

for Preliminary Injunction be, and the same is hereby

2a

set for hearing on the 6th day of January, 1989, at 10:

« clock, A.M.

THUS DONE AND SIGNED this 29th day of Decem-

ber, 1988, New Orleans, Louisiana.

/s, [Illegible]

Judge

8a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 88-5713

Section: L Mag. 2

INTERNATIONAL PRIMATE PROTECTION LEAGUE, et al.

Vv.

ADMINISTRATORS OF THE TULANE EDUCATIONAL

FUND, et al.

MOTION AND ORDER FOR TEMPORARY

RESTRAINING ORDER

| Filed June 5, 1989)

NOW COME plaintiffs International Primate Protec-

tion League (IPPL), People for the Ethical Treatment

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

mals and move the Court for a temporary restraining

order enjoining the Administrators of the Tulane Educa-

tional Fund, the National Institutes of Health, and their

agents, attorneys and servants, from inhumane treat-

ment towards, or euthanasia or other destruction of those

macaque monkeys known as the “Silver Springs Mon-

keys.”

Date of Entry Jan. 3, 1989

/s/ Margaret Woodward

MARGARET E. WooDWARD

Bar No. 13677

610 Poydras St., Suite 318

New Orleans, LA 70130

Phone: 504-525-9538

Attorney For

4a

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of January 1989

a copy of this pleading has been served upon each other

party to this action by depositing same in the United

States mails properly addressed to his her or its coun-

sel of record, first class postage, prepaid.

/s/ Margaret E. Woodward

MARGARET E. WOODWARD

5a

TEMPORARY RESTRAINING ORDER

Considering the verified petition for temporary re-

straining order and preliminary and permanent injunc-

tion, and for good cause shown,

IT IS ORDERED that a temporary restraining order

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

istrators 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 Springs Monkeys.”

This order to remain in effect through midnight, Feb-

ruary 1, 1989, unless otherwise terminated.

THUS DONE AND SIGNED this 6th day of January,

1989, New Orleans, Louisiana.

s/ Veronica D. Weicker

United States District Judge

6a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 88-5713

INTERNATIONAL PRIMATE PROTECTION LEAGUE, et al.

Vv.

ADMINISTRATORS OF THE TULANE EDUCATIONAL

FUND, et al.

DECLARATION OF WILLIAM F. RAUB, PHD.

WILLIAM F. RAUB declares:

1. I am the Deputy Director of the National Institutes

of Health (NIH). I have served in that capacity since

August 1986. I began work with the NIH in 1966 and

have served in various jobs of increasing responsibility

since that time. In 1979, I was appointed the Associate

Director for Extramural Research and Training. Dur-

ing my tenure in that position, I was responsible for all

NIH activities involving the nonhuman primates that

are popularly known as the “Silver Spring Monkeys.”

That responsibility continued when I was appointed Dep-

uty Director. Accordingly, I have thorough knowledge of

the NIH actions and responsibilities regarding those

animals.

2. On October 9, 1981, the Circuit Court for Montgo-

mery County Maryland ordered that all primates seized

by the Montgomery County Police from the Behavioral

Biology Center for the Institute for Behavioral Research

(IBR), the owner of the monkeys, be placed in the care

7a

and custody of the NIH. A copy of that order is at-

tached hereto as Exhibit A. By its terms, the order re-

mained in effect until further order of the court or ter-

mination of the pending criminal prosecution against Dr.

Taub, the chief investigator for IBR. On October 14,

1981, NIH took custody of the monkeys and began car-

ing for them at its animal facility in Poolesville, Mary-

land.

3. On December 2, 1981, the District Court for Mont-

gomery County convicted Dr. Taub on six counts of

animal cruelty. Five of the six counts were later over-

turned by the Circuit Court for Montgomery County. On

August 10, 1983, the Maryland Court of Appeals over-

turned the remaining criminal conviction of Dr. Taub.

This terminated the criminal prosecution against Dr.

Taub and thus, the order placing the animals in the care

and custody of NIH expired on that date. However,

NIH continued to care for the animals in order to main-

tain the status quo pending resolution of the suit seek-

ing custody of the monkeys brought by the International

Primate Protection League, The People for the Ethical

Treatment of Animals and other groups and individuals

in the Federal District Court for the District of Mary-

land.

4. During the spring of 1986, while the litigation was

pending before the United States Court of Appeals for

the Fourth Circuit, many members of Congress and the

general public urged the NIH to turn the monkeys over

to a private primate facility that does not endorse ani-

mal experimentation. The NIH determined that it could

not do so in view of the significance of the pending liti-

gation, indications that the facility in question did not

meet even the minimum requirements of the Animal Wel-

fare Act and the absence of authority to act independ-

ently of the owner of the monkeys, the Institutes for

Behavioral Resources, Inc., the successor organization of

the IBR. In order to respond as best it could to the

‘ 8a

strong expression of public interest, the NIH proposed

that the IBR monkeys be excepted from further invasive

research, be allowed to live in a first-class facility and

be resocialized to the extent possible. Because NIH fa-

cilities are not fully suitable for such a resocialization

attempt, the monkeys were transfered on June 23, 1986

to the Delta Regional Primate Resear~ Center in Con-

vington, Louisiana. Although NIH notified the other

parties in the litigation and the United States Court of

Appeals for the Fourth Circuit of the move on the day

it occurred, the decision to move the animals was made

by the NIH on the basis of its responsibility for the care

of the monkeys.

5. On the date of the transfer, NIH forwarded a letter

of agreement to the Chancellor of the Tulane University

Sehool of Medicine, which operates the Delta Center. A

copy of that agreement, signed by the Chancellor, is at-

tached hereto as Exhibit B. The agreement states that

“the Delta Center is acting strictly as an aide to NIH

in its role as . . . custodian |for the monkeys].” The

agreement further requires Delta to consult with NIH

regarding all clinical care decisions except routine or

emergency clinical procedures.

6. During the period the monkeys were ca’ed for at

the NIH Poolesville facility, NIH incurred costs of

$51,860. These costs were paid by the NIH because the

court order placing the animals in the custody of NIH

made no provision for payment by any other party, and

NIH viewed itself as providing a public service at the

hehest of the court. During the period the monkeys have

been cared for at the Delta Center, Delta has charged

NIH $45,086.14 for care and maintenance, security, ad-

ministrative costs and miscellanec . supplies. To date,

IBR has reimbursed NIH $29,622.54 for these costs, stat-

ing that it will reimburse NIH only for the standard

daily charge of $1.82 for each animal.

Sa

7. On September 1, 1987, five of the monkeys that

had not had surgery were transferred to the San Diego

Zoo in order to complete the resocialization process begun

et the Delta Center. Attached as Exhibit C is a copy

of the July 21, 1987 letter confirming the agreement be-

tween NIH and the San Diego Zoo. As stated in the letter

agreement, NIH took this action in its role as custodian

of the primates owned by the IBR.

8. As custodian of the animals, NIH will continue to

exercise its best judgment to carry out its plan, devel-

oped in consulation with experts in veterinary care, re-

habilitation medicine and primate behavior, that: (1)

the unoperated animals be introduced into group-living

arrangements appropriate to maintaining their long-term

well-being; and (2) the experimentally disabled animals

be cared for individually until euthanasia is required be

cause of significant pain or distress or they die of natural

causes. To date, IBR has acquiesced to NIH retaining

custody and control of the animals and to the actions

NIH has taken to carry out its plan.

Pursuant to 28 U.S.C. 1746, I declare under penalty

of perjury that the foregoing is true and correct.

Date: 1-27-89 ‘s/ William F. Raub

WILLIAM F. Raup, Pu.D.

Deputy Director, NIH