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

2) es

NO. 9()-89 JA 9 199

TOSEET F. SPANIOL, JR.

CLERK

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

Petitioners

V.

ADMINISTRATORS OF TULANE-EDUCATIONAL

FUND, NATIONAL INSTITUTES OF HEALTH AND

THE INSTITUTES FOR BEHAVIOR

RESOURCES, INC.

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF ON THE MERITS

ON BEHALF OF PETITIONERS

MARGARET FE. WOODWARD

610 Poydras St., Suite 318

New Orleans, LA 70130

Phone:(504)525-9538

Attorney For Petitioners Inter-

Of Counsel: national Primate Protection

League and its Members, People

GARY L. FRANCIONE for the Ethical Treatment of

Rutgers--The State University Animals and its Members, Alex

of New Jersey Pacheco, and Louisiana in Sup-

School of Law--Newark port of Animals and its

15 Washington Street Members

Newark, NJ 07102

(201) 648-5321

A B Letter Service, Inc, 327 Chartres St.. New Orleans, La. (04) 581-5555

ee bt

'

i

QUESTION PRESENTED FOR REVIEW

Whether the Fifth Circuit properly ruled that a federal

agency may remove to federal court a nonfederal ac-

tion brought against it in state court. 28 U.S.C. Sec.

1442 provides that an action against an officer is

removable, and there are conflicting decisions on

whether an action against a federal agency, as opposed

to one against a federal official, may be removed under

this provision.

il

LIST OF PARTIES

International Primate Protection League and Its

Members - Petitioners

People for the Ethical Treatment of Animals and Its

Members - Petitioners ,

Alex Pacheco - Petitioner

Louisiana in Support of Animals and Its Members -

Petitioners

Administrators of Tulane Educational Fund

Respondent

National Institutes of Health - Respondent

Institutes for Behavior Resources, Inc. - Respondent

A a

SE

ili

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

LIST OF PARTIES _..

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

STATUTE INVOLVED

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT.

A. The Plain Language of Section 1442(a)

Authorizes Removal by Federal Officers, Not

Agencies

B. The Legislative History of Section 1442(a)

Supports a Literal Reading of its Terms

C. The Conflict Among the Jurisdictions

Should be Resolved in Favor of the Plain

Language of Section 1442(a), and its Legislative

History | nu |

D.This Case Presents Issues of State Law That

Are Within the Peculiar Province of the Loui-

siana State Courts to Resolve

E. The Fifth Circuit Improperly Usurped the

Role of the District Court and Engaged in Ruling

that NIH Had Sufficient Interest in this Action

to Authorize the Exercise of Federal Jurisdic-

tion

CONCLUSION

10

12

17

19

iv

TABLE OF AUTHORITIES

CASES Page

Brewer v. Department of Housing and Urban

Development, 508 seed 72, 74 (S.D. Ohio

1980) 12

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

(E.D.Mo. 1987) 12

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

1973) : 12

Camacho v. Autoridad de Telephonos de Puerto

Rico, 868 F.2d 482 (ist Cir. 1989) 13,16,17

Cf. Michigan v. Banning, 88 F.Supp. 449, 450

E.D.Mich 1950) 11

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

F.Supp. 686, 698-90 (D.Neb. 1985) 12

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

1194 (D.C.Cir. 1983)(per Scalia, J.) 19

Gensplit Finance Corporation v. Foreign Credit In-

surance Association, 616 F.Supp. 1504, 1509

(E.D.Wis. 1985) 12

Harlem River Produce Company v. Aetna Casualty

and Surety Company, 257 F.Supp. 160 (S.D.N.Y,

1960) 12

Humane Society of the United States v. Black, No

81-2691 (D.D.C.) 23

International Primate Protection League v. In-

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

Cir. 1986) 3,17

Johnson v. Showers, 747 F.2d 1229 (8th Cir.

1084) 13

KCPO Employees Credit Union v. Mitchells, 42)

F.Supp. 1327 (D.Mo. 1976) 12

Vv

TABLE OF AUTHORITIES (continued)

CASES

Kaiser Aluminum and Chemical Corporation v.

Bonjornon, _US._, 110 S.Ct. 1570, 1575

(1989quoting Consumer Products Safety Com-

mission v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980)...

Lance International, Inc. v. Aetna Casualty and

Surety Company, 264 F. ead 349, 355 (S.D.N.Y.

1967).....

Lovell Manufacturing v. Silica Bank, 843

F.2d 725, 733 (3d. Cir. 1988)

Lowe v. Norfolk & Western Railroad Company, 529

F.Supp. 491 (D. Ill. 1982)

Monal Construction Company, 539 F.Supp. 478

(W.D.Pa. 1982) :

National Audubon Society v. Department of Water

& Power, 496 F.Supp. 499, 508 (E.D.Cal.

1980)

Physicians Committee for Responsibie Medicine v.

Sullivan, case number 90-0084 (D.D.C.)

Stewart Security Corporation v. Guaranty Trust

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

1979)

Taub v. State, 296 Md. 439, 482 A.2d 819

(1983)

Thermton 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,

601 F.Supp. 125, 127 (D.N.J. 1985)

Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183,

188 (5th Cir. 1986)

Page

11,12

10,17

12

13

14

vl

19

vi

TABLE OF AUTHORITIES (continued)

CASES Page

W.V.Enterprises, Inc. v. North Kansas Savings

Association, 628 F.Supp. 1261 (D.Kan. 1986) ...... i2

Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813

2 cart cess oe ee se cas eek esas se 10,14,15,16

Woodward v. Turnage, 646 F.Supp. 219, 221

(E.D.Mo. 1986)................. eee —

Zenith Radio Corporation v. Hazeltine Research,

Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576

roa Peas Oe eae Ce een 19

STATUTES

Administrative Procedure Act, 5 U.S.C. Section

551(1), 551(2(1989) ........ eee, 10

Animal Welfare Act, 7 U.S.C. Sections 2131-2157

as syle ess ree 3,18

Fed.R.Civ.P. 52(a) |. | | 20

28 U.S.C. Section 1291 17

28 U.S.C. Section 1442(a) passim

TREATISES

C. Wright, A. Miller, & E. Cooper, Federal Practice

and Procedure, Section 3727. 14,16

1A Moore's Federal Practice, Section 0.164{1] at

380-81... | 11

l -

CITATION TO OPINION OF FIFTH CIRCUIT

The opinion of the United States Court of Appeals

for the Fifth Circuit in Jnternational 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.!

JURISDICTION

This Court's Jurisdiction is invoked under 28 U.S.C.

Sec. 1254(1). The judgment of the Court of Appeals was

entered on March 8, 1990. A petition for rehearing was

denied by that court on April 13, 1990. A petition for a

Writ of Certiorari was filed on July 12, 1990. Certiorari was

granted on November 26, 1990.

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 apprehension or

punishment of criminals or the collection of the

revenue.

! Citations to the “Appendix or “A-1” refer to the Appendix to the

Petition for Writ of Certiorari; the Joint Appendix is referred to as “Jt

App. -

2

STATEMENT OF THE CASE

This case arises out of the spirited public debate con-

cerning the ‘Silver Spring Monkeys."’ These 31 primates

were formerly used in experiments conducted by a private

research facility, the Institute for Behavioral Research

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

Health (‘NIH’). In 1981, Maryland police raided the IBR

laboratory and seized the surviving 17 monkeys. Most of

the animals seized had crippled arms as the result of the ex-

periment, and had deformed or missing fingers due to self-

mutilation and inadequate veterinary care. The state of

Maryland arrested and charsed IBR principal investigator,

Edward Taub, with violation of the state statute pro-

hibiting cruelty to animals. The monkeys were initially

placed in the custody of several of the plaintiffs, and were

then delivered by plaintiffs to the NIH pursuant to a court

order vesting temporary custody of the animals in NIH

pending Taub’s prosecution.! NIH terminated the experi-

ment due to violations by Taub of the NIH Guide to the

Care and Use of Laboratory Animals. Taub’s ‘aboratory

was permanently closed, and all that remained was the

disposition of the crippled animals.

From the time that the police seized the monkeys in

1981, plaintiffs have sought to ensure that the animals

would not be further abused or needlessly killed. Several

animal protection groups brought suit under the federal

| Taub. a psychologist. was convicted of multiple counts of animal cruel:

tv. His conviction was later set aside because the Court of Appeals of

Marvland held that the state anticruelty statute did not, as a matter of

legislative intent, apply to animals used in scientific research. See Taub

». State, 296 Md. 439, 463 A.2d 819 (1983). Several months after the

decision was handed down, the Marvland legislature amended the anti-

cruelty statute to include animals used in experiments, irrespective of

the source of funding. within the scope of the statute.

3

Animal Welfare Act, 7 U.S.C. sections 2131-2157 (1988), to

protect the primates’ interests, but the groups were found

not to have standing to enforce the statute. /nternational

Primate Protection League v. Institute for Behavioral

Research, 799 F.2d 934 (4th Cir. 1986), cert denied, 481

U.S. 1004, 107 S.Ct. 1624 (1987). In addition, various

animal protection groups offered to NIH to purchase the

animals, and to care for them at no expense to the

government.

In 1986, NIH and IBR stated in writing that the

primates were of no further scientific use, and that they

had no plans to use the monkeys for any purpose now or in

the future. More than 300 members of Congress petitioned

NIH to release the animals to a sanctuary where the

animals would be resocialized and given proper veterinary

care for the remainder of their lives, and ai no expense to

the taxpayers.

NIH acknowledged the congressional concern, and

promised Congress, in writing, that the animals: (1) would

not be subjected to any further experiments; (2) that they

would be receive needed veterinary care,” (3) that they

would be resocialized; and (4) that they would be allowed to

live out the remainder of their natural lives. Further, NIH

stated to Congress that the monkeys would not be transfer-

red from NIH to any other location without advance notice

to key members of Congress who had indicated interest in

the matter. Shortly thereafter, and without any notice of

any kind, NIH transferred the monkeys from an NIH facili-

ty to the Delta Regional Primate Research Center

(‘Delta’), a branch of Tulane University, in Louisiana.

| ’ . . ;

“ As aresult of Taub’s experiments, several of the monkeys had crippled

limbs that needed to be amputated. NIH promised that the crippled

limbs would be amputated.

4

This move, and the subsequent experimentation to which

the remaining primates have been expo. ed, violates all of

the promises that NIH made to Congress concerning the

Silver Spring Monkeys. More than 100 Members of Con-

gress have since co-sponsored federal legisiation to compel

NIH to transfer the surviving animals to a sanctuary. The

controversy about the primates continues as animal protec-

tion groups, together with members of Congress, proceed

to press for the release of the animals to an animal sanc-

tuary, and criticize NIH for its blatant disregard of its pro-

mises concerning these animals.

After the primates were transferred to Delta, colum-

nist Jack Anderson reported that the NIH planned to ar-

range in a clandestine manner a transfer of title to the

animals to Tulane, and that Delta planned to kill the

animals in order to moot the public controversy and to

spare NIH any political embarrassment and responsibility

for their death. Congressional uproar followed Anderson's

report and five of the primates were transferred to the San

Diego zoo. This litigation involves the four surviving

monkeys.”

The present case was initially filed on December 2,

1988, shortly after petitioners learned that NIH, which had

earlier stated in writing that the monkeys were of no re-

maining scientific value, and had promised Congress that

the animals would be subjected to no further experiments

and would be allowed to live out the remainder of their

natural lives, planned to perform a lethal experiment on

three of the remaining animals on December 29, 1988. Peti-

tioners instituted the suit in state court, naming as defend-

3 When this litigation began. there were nine remaining animals. Five

have died during the pendency of the suit Three were subjected to lethal

experiments on July 6, 1990, after courts denied petitions for emergency

injunctive relief. See infra note 4.

5

ants NIH, IBR, and the Administrators of the Tulane

Educational Fund (‘‘Tulane’’), the custodian of the animals.

The suit alleged that there was no legitimate research in-

terest to be pursued and that the primates were being kill-

ed for political reasons, that the plaintiff animal protec-

tion groups and their members would be aggrieved ir-

reparably by the destruction of the primates, and that the

destruction of the animals constituted a public nuisance, an

intentional infliction of emotional distress, and a violation

of public policy, all under Louisiana law. Plaintiffs sought

injunctive relief to prevent the killing of the animals, and

sought to transfer custody to the plaintiffs or to members

of Congress who had offered to purchase the animals and

to facilitate a transfer of these animals to an appropriate

animal sanctuary. (See Petition, A-30ff)

The state court immediately issued a temporary

restraining order that prevented the killing of the animals.

NIH then sought to remove the case to federal court, rely-

ing upon 28 U.S.C. section 1442(a)(1). A second temporary

restraining order was issued by the federal court. (A-16)

Plaintiffs moved to remand the case to state court, and the

federal court denied this motion. (A-17) Defendants made

successive motions to dismiss the suit on grounds of res

judicata, sovereign immunity, federal preemption, and lack

of standing, and the federal court also denied these mo-

tions. (A-17, A-18) Defendants appealed from the denial of

their second motion to dismiss, and the United States

Court of Appeals for the Fifth Circuit, holding that plain-

4 An action has been filed in the District Court for the District of Colum-

bia charging NIH with scientific misconduct and fraud in connection

with the experiments conducted on, or planned to be conducted on, the

remaining animals. The court recently declined to issue a restraining

order prohibiting the destruction of three of the monkeys. Physicians

Committee for Responsible Medicine v. Sullivan, case number 90-0084

(D.D.C.).

6

tiffs lacked standing, ordered the case dismissed.°

SUMMARY OF THE ARGUMENT

The Fifth Circuit improperly ruled that a federal

agency may remove to a federal court an action brought

solely on state-law grounds in a state court. The statute

relied upon by NIH and the Fifth Circuit, 28 U.S.C. section

1442(a), provides that any action against an officer of a

federal agency is removable, and not that a suit brought

against an agency may be removed. Although there is a

conflict in the lower federal courts concerning the inter-

pretation of 28 U.S.C. section 1442(a) as it involves this

question, and a minority of courts permit removal by

federal agencies, petitioners respectfully maintain that the

clear weight of the law and of logic supports those courts

that have interpreted 28 U.S.C. section 1442(a) as not per-

mitting removal under these circumstances.

If the Fifth Circuit approach is accepted, then state

courts will be divested of jurisdiction whenever a case in-

volves a ‘‘federal interest.’’ The Fifth Circuit's action was

particularly problematic in the present case as there was no

evidence before the court that the federal agency that

sought removal-the NIH-had an interest in the case that

justified the exercise of federal jurisdiction over state

claims in the first instance.

The predecessor of 28 U.S.C. section 1442(a) was

enacted specifically to protect federal customs officers in

® When defendants appealed from the denial of their motion to dismiss.

plaintiffs pointed out that the order was not appealable. Before the Fifth

Circuit, defendants argued that they were appealing from the grant ot

the temporary restraining order, which, according to defendants, was

tantamount to the granting of a preliminary injunction because of the

duration of the TRO. See infra section FE of the Argument herein

7

the enforcement of an unpopular statute by providing a

federal forum for defenses existing under federal law. Later

expansions of the law, including the current section

1442(a), explicitly authorize removal of actions against

federal officers only. Both the legislative history of the

statute and the express language of section 1442(a) clearly

indicate congressional intent to limit the right of removal

under this provision to natural persons, and not to entire

federal regulatory agencies.

Courts that have decided to the contrary are acting

in explicit disregard of the legislative history, and express

language of section 1442(a). Indeed, in some cases, courts

have read the statute so broadly as to expand removal

jurisdiction beyond the scope of the original jurisdiction of

the federal courts. The majority rule, which would prohibit

removal in these circumstances, accords with the explicit

language of the statute, congressional intent, and common

sense.

ARGUMENT

On December 28, 1988, plaintiffs filed their petition,

which contained various state-law claims against Tulane,

IBR, and NIH, in a state court in Louisiana. On that same

date, the state court enjoined Tulane, the only party that

had been served at the time, from the killing or other in-

humane treatment of the remaining Silver Spring

monkeys. Two days later, NIH removed the case to the

federal court for the Eastern District of Louisiana. NIH

predicated removal on 28 U.S.C. section 1442(a), asserting

that NIH “‘is an agency of the United States of America,

and the Federal District Courts have original jurisdiction

over all actions commenced against such federal agencies.”

Petitioners promptly moved for a remand to the

8

state court, contending that section 1442(a) authorized

removal only of actions brought against natural persons

who are federal officers. Petitioners recognized that the

Fifth Circuit and a minority of jurisdictions construed the

statute more liberally to permit removal of an action

against a federal agency as well, but petitioners argued

that the legislative history, purpose, and explicit statutory

language demonstrated unequivocally that removal is

limited only to actions involving natural persons who are

federal officers. The district court upheld the removal bas-

ed upon Fifth Circuit precedent, and the Fifth Circuit af-

firmed the decision with virtually no consideration of the

countervailing argument based on the statutory language

and history of section 1442(a), which has been accepted by

the majority of jurisdictions to interpret section 1442(a).

A. The Plain Language of Section 1442(a) Authorizes

Removal by Federal Officers, Not Agencies

As this Court has observed often: “The starting

point for interpretation of a statute is the staiute itself. Ab-

sent a clearly expressed legislative intention to the con-

trary, that language must ordinarily be regarded as con-

clusive.’ Kaiser Aluminum and Chemical Corporation v.

Bonjorno, __U.S._, 110 S.Ct. 1570, 1575 (1990)(quoting

Consumer Products Safety Commission v. GTE Sylvania,

Inc., 447 U.S. 102, 108 (1980)). In this case, the statutory

language conclusively establishes that removal is ap-

propriate only for federal officers and not agencies.

Section 1442(a) is titled as ‘‘Federal Officers Sued or

Prosecuted.”’ In keeping with this title, section 1442(a) pro-

vides, in pertinent part:

(a) A civil action or criminal prosecution com-

menced in a state court against any of the follow-

9

ing persons may be removed by them... .

(1) any officer of the United States or any agen-

cy thereof, or person acting under him, for any

act under color of such office or on account of

such right, title or authority claimed under any

act of Congress for the apprehension or punish-

ment of criminals or collection of the revenue.

28 U.S.C. section 1442(a)emphasis added).

By its own terms, the statute applies to suits against

natural persons and not against agencies of the federal

government. In subsection (a), the statute states that an

action against any of the following listed persons may be

removed by them. Further, in paragraph (1) under subsec-

tion (a), the listed person is any officer of the United States

or of an agency thereof. The person may be an officer of the

United States or an officer of an agency of the United

States.

There can be no serious argument that the expres-

sion, ‘‘any agency thereof,’’ contained in paragraph (1), was

intended to confer the right of removal on agencies of the

federal government. If Congress had wished to include

federal agencies within the ambit of section 1442(a), Con-

gress could have simply phrased paragraph (1} to read:

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

.... That is, Congress needed only to indicate that the

removal right extended to agencies as well, and not just to

natural persons. In this way, Congress could have confer-

red the removal right on agencies and not just officers. But

Congress did not write such a statute; on the contrary, the

language, syntax, and punctuation explicity limited the

scope of the statute to natural persons who are federal of-

ficers. Congress was fully aware of the distinction between

“persons and “agencies.” For example, _ the

10

Administrative Procedure Act clearly defines ‘‘agency’’ as

a concept that is separate and apart from ‘‘person,”’ and, in-

deed, the definition of ‘‘person”’ explicitly excludes agen-

cies. See, 5 U.S.C. section 551(1), 551(2)(“‘person includes an

individual, partnership, corporation, association or public

or private organization other than an agency’ (emphasis

added)).

As further proof that Congress limited the scope of

section 1442(a) to apply only to persons and not agencies,

Congress chose to extend the right of removal to any ‘‘per-

son acting under him.” If the right of removal extended to

agencies as well as officers, the use of the word “him”

would have been clearly incorrect. Instead, Congress would

have had to use an expression like ‘‘or person acting under

him or for the agency."’ But Congress did not choose to

write a different statute; rather, it wrote section 1442(a) as

it stands, and explicitly chose to extend the right of

removal to natural persons who are federal officers or to

those persons working under him. As the Third Circuit

observed: ‘‘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 him.” Lovell Manufacturing v.

Export-Import Bank, 843 F.2d 725, 733 (3d Cir. 1988).

B. The Legislative History of Section 1442(a) Supports

a Literal Reading of its Terms

As this Court observed in Willingham v. Morgan,

395 U.S. 402, 89 S.Ct. 1813 (1969), the original federa! of-

ficer removal statute was intended to protect federal

customs officers who were enforcing a trade embargo with

England over the opposition of the states in New England:

“Obviously, the removal provision was an attempt to pro-

11

tect federal officers from interference by hostile state

courts.’ 395 U.S. at 405; 89 S.Ct. at 1815. There is ab-

solutely nothing in the history of section 1442(a) that

would indicate that Congress intended to insulate federal

regulatory agencies from the jurisdiction of state courts.

The predecessor of paragraph (1) of section 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, section

0.164[1] at 380-81. Although the present law broadens

coverage to include federal officers other than those involv-

ed in the enforcement of the revenue laws, the coverage was

broadened to include additional federal employees, and not

to include non-natural persons or entities. Cf Michigan v

Banning, 88 F.Supp. 449, 450 (E.D Mich. 1950). According

to Professor Moore:

‘“{IJmn extending the application of {[Sec. 1442(a)

paragraph (1) to federal officials and employees

generally, the revision [of the Judicial Code of

1948] made no change in the theory or basis for

removal that the civil suit or criminal prosecution

must be against the officer or employee, and bas-

ed upon an act or acts done under color of office,

etc.”

Id. at 382-84 (footnotes omitted). Thus, Professor Moore

correctly concluded that ‘‘a suit against a government cor-

poration, as distinguished from a suit against a federal of-

ficial or one acting under him, is not removabie under Sec.

1442(a)(1)."’ Jd. It is clear that ‘‘[njothing in the legislative

history [of section 1442(a)(1)] reveals that the term ‘‘of-

ficer’’ was intended to include corporations or agencies as

distinguished from individuals.’ Lance International, Inc.

v. Aetna Casualty and Surety Company, 264 F.Supp. 349,

355 (S.D.N.Y. 1967).

12

ts The Conflict Among the Jurisdictions Should be

Resolved in Favor of the Plain Language of Section

1442(a), and its Legislative History

There is a conflict among courts as to whether sec-

tion 1442(a)(1) permits removal in the case of federal agen-

cies. The majority of courts that have confronted the issue

have held that ‘‘it is clear to us that a fair reading of the

statute only allows officers, and not agencies, to remove

cases to federal courts.’’ Lovell Manufacturing v. Export-

Import Bank, 843 F.2d 725, 733 (3d. Cir. 1988). See also

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

(E.D.Mo.1987); W-V Enterprises, Inc. v. North Kansas

Savings Association, 628 F.Supp. 1261 (D. Kan 1986):

Woodward v. Turnage, 646 F.Supp. 219, 221 (‘E.D.Mo.

1986); Gensplit FInance Corporation v. Foreign Credit In-

surance Association, 616 F.Supp. 1504, 1509 (E.D.Wis.

1985); City of Alma v. Bell, Galyardt & Wells, Inc., 606

F.Supp. 686, 689-90 (D.Neb. 1985): Lowe v. Norfolk &

Western Railroad Company, 529 S.Supp. 491 (D.IIl. 1982):

Brewer v. Department of Housing and Urban Develop-

ment, 508 F.Supp. 72, 74 (S.D.Ohio 1980); ACPO

Employees Credit Union v. Mitchells, 421 F.Supp. 1327

(W.D.Mo. 1976); California v. Bozarth, 356 F.Supp. 667

(N.D.Cal. 1973); Lance International, Inc. v. Aetna Casual-

ty and Surety Company, 264 F.Supp. 349 (S.D.N.Y. 1967):

Harlem River Produce Company v. Aetna Casualty and

Surety Company, 257 F.Supp. 160 (S.D.N.Y. 1960).

A minority of courts, however, including the Fifth

Circuit in the present case, have held that section 1442(a)(1)

permits federal agencies to remove to federal courts. These

cases may be broken down into two categories.

First, there are cases in which a federal agency or

private corporation did remove to federal court under sec-

13

tion 1442(a), but where the issue of the scope of section

1442(a) was simply not raised. See, e.g., Camacho v.

Autoridad de Telephonos de Puerto Rico, 868 F.2d 482 (1st

Cir. 1989); Johnson v. Showers, 747 F.2d 1229 (8th Cir.

1084); Monal Construction Company, 539 F.Supp. 478

(W.D.Pa. 1982). In Camacho, plaintiffs brought suit in

state court against two quasi-public telephone companies,

alleging that they improperly intercepted plaintiffs’

telephone calls. The telephone companies removed the ac-

tion to federai court, and the ‘‘|pjlaintiffs neither contested

removal nor sought remand.” 868 F.2d at 484. On appeal,

plaintiffs did contest removal on the ground that the phone

companies were not acting under the direction of govern-

ment officials. The First Circuit rejected this claim, holding

that plaintiffs had not contested the telephone companies’

averment in their removal petition to the etfect that at all

times, the companies were acting under the orders and con-

trol of federal agents. The issue in Camacho was not

whether section 1442(a) provided for removal only by

natural persons, but rather, was whether, under the cir-

cumstances, section 1442(a) provided removal protection

‘to private persons, like appellees, who act under the direc-

tion of federal officers.’’ Jd. at 487. The court assumed, and

the parties did not argue otherwise, that the appellees in

Camacho were persons under section 1442(a).

Similarly, in Johnson v. Showers, the government

made an unopposed request that a suit brought against an

agency “‘should be deemed as one brought against”’ the

agency's director, which the court simply accepted for pur-

poses of section 1442(a). Again, the issue of the scope of

section 1442(a) was neither raised by the parties nor

discussed by the court. In Monal Construction Company,

the court simply assumed that the Department of Housing

and Urban Development could remove to federal court

under section 1442(a) but the issue was neither raised nor

14

discussed.

Second, there are several cases in which the scope of

section 1442(a) is discussed in terms of the person/agency

question relevant to the instant case, and in whch the

courts conclude that removal protection is not limited to

natural persons who are federal officers or persons working

at their direction. In National Audubon Society v. Depart-

ment of Water & Power, 496 F.Supp. 499, 508 (E.D.Cal.

1980), the agency argued, and the court accepted, that the

agency should be considered as ‘‘a person acting under [the

federal officer]."" In Township of Middletown v. N/E

Regional Office, 601 F.Supp. 125, 127 (D.N.J. 1985), the

court stated that the statutory language ‘‘could per-

missibly be interpreted to allow or disallow removal by a

federal agency,’’ and then simply proceeded to allow

removal based on a view that the broader interpretation of

section 1442(a) was required to protect federal authority.

Courts that give a broader interpretation to section

1442(a) tend generally to cite as authority C. Wright, A.

Miller, and E. Cooper, Federal Practice and Procedure, sec-

tion 3727, at 457; “It is not clear whether federal agencies

themselves may remove under Section 1442 [but a] broad

interpretation of the statute is clearly justified in terms of

the intent of Congress to protect the valid exercise of

federal authority."" See National Audubon Society, 496

F.Supp. at 508; Township of Middletown, 496 F.Supp. at

127. The authority cited for this proposition in the

Wright/Miller/Cooper treatise is this Court's decision in

Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813 (1969).

Nothing in Willingham, however, supports such a liberal

interpretation of section 1442({a) that would extend removal

protection beyond natural persons who are federal officers

or those persons working under them. Indeed, the issue

was never even presented to this Court in that case.

’ 15

In Willingham, this Court was called upon to inter-

pret the meaning of section 1442(a) in providing that an of-

ficer may remove an action commenced against him ‘‘for

any act under color of such office. . . .'’ Two federal officers,

the warden and chief medical officer at the United States

Penitentiary in Leavenworth, Kansas, had been sued in-

dividually and personally by a prisoner for physical abuse

allegedly imposed by the officers ‘‘on a frolic of their own

with no relevancy to their official duties.’’ 395 U.S. at 407,

89 S.Ct. at 1816. Thus, Willingham had nothing to do with

a challenge against a federal agency. The officers removed

the case to federal court and the district court judge, after

denying a motion to remand, entered summary judgment

in favor of the officers under the then-operative official im-

munity doctrine. On appeal, the Tenth Circuit reversed,

holding that the ‘‘color of office’’ test of section 1442(a)(1)

was ‘‘much narrower’ than the test for official immunity.

This Court disagreed, holding that the test for

removal should be broader, and not narrower, than the test

for official immunity because the purpose of the removal

statute was to provide a federal forum for cases in which

federal officials must raise defenses arising from their of-

ficial duties. In this connection, and not in connection with

any examination as to whether section 1442(a)(1) extended

to provide removal protection to federal agencies, this

Court stated that “‘Congress has decided that federal of-

ficers, and indeed the Federal Government itself, require

the protection of a federal forum. This policy should not be

frustrated by a narrow, grudging interpretation of Sec.

1442(a)1)."’ 395 U.S. at 407, 89 S.Ct. at 1816. This Court

properly construed the ‘‘color of office’’ test and found that

because the officers’ relationship to the prisoner derived

solely from their official duties, the alleged acts at issue

were “under color of. . .office’’ and the removal was,

therefore, proper.

Willingham did not address the issue presented to

16

the Court in this case. Even Wright, Miller, and Cooper

acknowledge that to the extent they rely on Willingham as

support for an interpretation of section 1442(a)(1) that

would cover federal agencies, the language in Willingham

was dicta. See C. Wright, A. Miller, & E. Cooper, supra, at

section 3727 at p. 457, n. 30. In urging a construction of

section 1442(a)(1) broad enough ‘‘to cover all case. where

federal officers can raise a colorable defense arising out of

their duty to enforce federal law,’’ Willingham simply did

not give lower courts the license to read into the statute

what it plainly does not say. 395 U.S. at 406-07, 89 S.Ct. at

1816. Indeed, reliance on Willingham at all is seriously

misplaced in the light of this Court's explicit recognition in

that case that section 1442(a)(1) was derived from an earlier

statute that was expressly intended to protect federal

revenue Officers. See, 395 U.S. at 405-06, 89 S.Ct. at

1815-16.

Moreover, a liberal interpretation of section

1442(a)(1) that would allow removal whenever a federal

agency is involved threatens to broaden removal jurisdic-

tion far beyond original jurisdiction. For example,

although the court in Camacho, supra, did not specifically

address the question whether section 1442(a)(1) applied to

federal agencies, the court stated that section 1442(a)(1)

represents ‘a legislatively-spawned value judgment that a

federal forum should be available when particular litigation

implicates a cognizable federal interest.’’ 868 F.2d at 487

(emphasis added). Because federal district courts do not

have original jurisdiction whenever the United States is a

party. or a ‘‘cognizable federal interest’’ is present, such an

expansive interpretation of section 1442(a)(1) would create

a removal jurisdiction that would be wider in scope than

the original jurisdiction of the federal courts. Indeed, in

National Audubon Society, the court was presented with

this very argument, and, unlike Camacho, the argument

17

was presented in the precise context of determining

whether section 1442(a)(1) conferred removal rights on

federal agencies. The court in National Audubon Society

stated that ‘‘[i}t has been suggested. . that a reading of the

statute as broadly as the court has suggested herein would

authorize removal whenever the United States is a litigant.

.. .The answer to that is short. Removal jurisdiction may

indeed be broader than original jurisdiction.’ 496 F.Supp.

at 508-09 (emphasis added). This anomalous result is yet

another reason to reject the expansive interpretation of

section 1442(a)(1) accepted by the court below.

The majority view clearly does require remand of ac-

tions removed by federal agencies, but because remand

orders are not considered final orders reviewable by appeal,

see 28 U.S.C. section 1291; Thermton Products, Inc. v. Her-

mansdorfer, 423 U.S. 336, 352-53, 96 S.Ct. 584, 593-94

(1976), it is not surprising that the majority view is ex-

pressed principally in district court decisions. Lovell

Manufacturing, supra, the only circuit court decision ar-

ticulating the majority view, contains a_ thoughtful

analysis of the statute's language and legislative history.

By contrast, the Fifth Circuit adopted the minority view

without articulating any basis for its choice. The Fifth Cir-

cuit’s ruling was erroneous, and this case should be

remanded.

D. This Case Presents [ssues of State Law That Are

Within the Peculiar Province of the

Louisiana State Courts to Resolve

In the earlier /nternational Primate Protection

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

(4th Cir. 1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1624

(1987), the plaintiffs, including several plaintiffs involved

18

in the present suit, sued IBR, NIH, and others in state

court, seeking custody of the monkeys under Maryland

state law and seeking to enforce the federal Animal Welfare

Act, 7 U.S.C. sections 2131-2157 (1988). NIH removed the

case to federal court on the ground of a federal question.

The Fourth Circuit held that enforcement of the federal

Animal Welfare Act was entrusted to the United States

Department of Agriculture and the plaintiffs had no stan-

ding to sue under that statute. After the court dispensed

with the federal claims, the court declined to exercise pen-

dant jurisdiction over the state law claims. Implicit in the

court's ruling was a determination that section 1442(a)(1)

does not establish federal jurisdiction over any action

brought against a federal agency. as both NIH and the

Department of Health and Human Services were defend-

ants in that action.

When plaintiffs in the present action reinstituted

those purely state law claims that the Fourth Circuit had

referred to state court, NIH again removed to federal

court. Because the monkeys had been moved to Louisiana,

plaintiffs filed in a Louisiana state court, and NIH removed

to a federal district court in one of the few jurisdictions in

which such removal is tolerated in light of the Fifth Cir-

cuit's broad—and erroneous—interpretation of section

1442(a)(1). Although the Fourth Circuit dismissed those

state law claims for want of jurisdiction, the Fifth Circuit

exercised jurisdiction only long enough to dismiss plain-

tiffs’ nonfederal claims (with prejudice) for lack of standing

under Article III of the United States Constitution—a re-

quirement peculiar to the federal courts.

The Fifth Circuit erroneously rejected petitioners’

argument that the Fourth Circuit's ruling was res judicata

as to the jurisdictional issue. Although dismissals for lack

19

of subject matter jurisdiction do not operate as adjudica-

tions on the merits, and thus do not preclude a second ac-

tion on the same claim, such dismissals do generally

preclude relitigation of the underlying issue of jurisdiction.

Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 188

(5th Cir. 1986); Dozier v. Ford Motor Company, 702 F.2d

1189, 1194 (D.C.Cir. 1983)(per Scalia, J.); Stewart Security

Corporation v. Guaranty Trust Company, 597 F.2d 240,

241 (10th Cir. 1979). Hence, the Fourth Circuit's judgment

that the plaintiffs’ state-law claims against NIH were not

cognizable in federal court remained effective to preclude

litigation of the precise issue of jurisdiction that led to the

dismissal in the first instance.

Although petitioners had filed in a court of compe-

tent jurisdiction in light of the Fourth Circuit ruling, the

Fifth Circuit accorded no preclusive effect to the Fourth

Circuit's dismissal of the state-law claims. The Fourth Cir-

cuit’s implied ruling was, however, the correct one. The

claims asserted here. grounded in Louisiana principles of

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

law. The primates at issue in this litigation are privately

owned and housed in a local private facility. As discussed

infra, the federal agency's interest in this matter is

peripheral at best, raising further questions about the pro-

priety of federal interventior into a purely local matter.

E. The Fifth Circuit Improperly Usurped the Role of

the District Court and Engaged in Ruling that NIH

Had Sufficient Interest in this Action to Authorize

the Exercise of Federal Jurisdiction

This Court has consistently admonished that ‘‘ap-

pellate courts must constantly have in mind their function

is not to aecide factual issues de novo.” Zenith Radio Cor-

poration v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89

20

S.Ct. 1562, 1576 (1969). See also Fed.R.Civ.P. 52(a). In the

present case, there were serious questions presented in the

district court concerning NIH’s interest in the monkeys.

These issues remained unresolved because although the

district court had ordered discovery on this precise issue,

the Fifth Circuit simply decided, on a tenuous factual

record, that NIH was a proper party. In so doing, the Fifth

Circuit invaded the fact-finding province of the district

court and upheld jurisdiction on the basis of completely un-

substantiated assertions by NIH and under highly ques-

tionable circumstances.

Although petitioners named NIH as a defendant in

this suit, petitioners challenged and questioned NIH’s role

in the proceedings from the outset. Indeed, the on/y reason

that petitioners named NIH at all was because NIH claim-

ed responsibility for the decision to kill the Silver Spring

monkeys in December 1988, immediately before the suit

was instituted. When NIH removed the case to federal

court, petitioners moved to remand on the ground that sec-

tion 1442(a)(1) is inapplicable to a suit against a federal

agency and on the ground that NIH had an insufficient in-

terest in the case to justify the »resenc: of a nonfederal suit

in a federal court.

With respect to the .“ e concerning section

1442(a)(1), the district court felt bound to follow the Fifth

Circuit’s precedent. On the question of NIH’s interest,

however, the district court reacted with caution and con-

cern. The trial court observed: ‘We don't know why the

government is in this suit, quite frankly. The government

intervened,® but there are serious questions as to whether

6 The district court stated that NIH had formally intervened, but as

counsel pointed out subsequently, NIH had been named as a defendant

At an earlier hearing, however, counsel for plaintiffs had proposed drop-

ping NIH from the suit, and NIH stated that it would simply intervene

if dropped. The court was referring to that earlier hearing.

21

they should have custody of these monkeys.” Hearing,

May 3, 1989, at 5-6. When counsel for NIH made an un-

substantiated claim that NIH did have an interest, the

district court responded:

“You know, you say that, but no ane has has

shown me one document that permits that. I

mean, you know, it’s sort of working in a vacuum.

The government has not given me one document.

The only documents that we have ever seen show

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 the 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.”

Id. at 15-16 (emphasis added). The district court ruled, and

emphasized on several occasions, that discovery must go

forward on the jurisdictional issue, the ‘‘very issue’’ to be

placed before the Fifth Circuit on appeal and in case of re-

mand, the ‘‘next issue before this Court.’ Jd. at 20, 25, 26,

27-38.

NIH refused to document its interest, and refused to

respond to plaintiffs’ discovery requests relating to NIH’s

interest in the case. Instead, NIH appealed from the denial

of its motion to dismiss (A-27). When plaintiffs pointed out

22

that the denial of the motion to dismiss was not an ap-

pealable order, NIH filed a novel pleading styled ‘‘Motion

for Indicative Ruling,’ in which it requested that the

district court “‘indicate’’ whether it would grant a

preliminary injunction if the issue were before it. At the

hearing on this ‘Motion for Indicative Ruling,’ the court

indicated concern as to whether it even had jurisdiction to

consider the motion in light of the pending appeal. The

court did, however, deny the motion, and NIH then argued

that the TRO the court had issued had been converted into

a preliminary injunction by the length of its duration,’

vesting in NIH the right to appeal from the issuance of a

preliminary injunction. (A-29) Plaintiffs responded that

“IH was simply trying to manipulate the proceedings to

secure an appeal without responding to the discovery re-

quests that the district court had ordered.® The Fifth Cir-

cuit denied plaintiff's motion to dismiss the NIH appeal.

(A-22)

On appeal, then, the Fifth Circuit had nothing before

it that would have established NIH ’s interest in the case

apart from NIH's own unsubstantiated assertions that the

district court had already explicitly found to be inadequate.

Indeed, some of NIH’s assertions, such as its claim of

custody of the monkeys based upon an expired court order,

were proven false. All of NIH’s assertions were highly

suspicious, especially in light of NIH's political interest in

preserving the falsehood concerning its supposed court-

ordered custody, and its earlier written admission that

NIH had no further scientific use for the animals.

‘ Of course. NIH had consented to the extension of the TRO, but then

withdrew consent.

* Because of the pendency of the appeal, the district court opined that

it had been stripped of jurisdiction to enforce its earlier order that

discovery proceed on the issue of NIH's interest in the case. See A-20.

A-23.

23

Despite the lack of evidence before the Fifth Circuit

concerning the interest of NIH, the Fifth Circuit found as

a fact that NIH’s newly found fatal brain experiments on

the primates was ‘‘in furtherance of NIH’s statutory mis-

sion to conduct and fund biomedical research.”’ (A-14-15)

By adverting to NIH’s ‘Statutory mission,’ the Fifth Cir-

cuit thereby completely sidestepped—and improperly so—

the question whether NIH has any real interest and

authority in this case.? The issue of NIH’'s interest was: (1)

the central issue in dispute; (2) the issue vigorously con-

tested by plaintiffs; (3) the issue on which the district court

had made no finding; (4) the issue on which the district

court had ordered further discovery; and (5) the issue about

which the Fifth Circuit had no information before it apart

from NIH's own self-serving and unsubstantiated

statements that the district court had rejected. Such de

novo fact-finding by the Fifth Circuit flies in the face of this

Court's repeated admonitions concerning the role of ap-

pellate courts.

The NIH had—at best—a highly questionable in-

terest in this action. This questionable interest renders all

the more doubtful its right to invoke the protection of sec-

tion 1442(a)(1) and to remove to a federal forum a case

brought under state court concerning privately owned and

privately held animals, and that could not be maintained in

a federal court because of the standing requirements of Ar-

ticle III of the federal Constitution.

9 In an earlier proceeding. NIH had resisted efforts to block its returr

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

to retain IBR’s property. See NIH Memorandum in Support of Motion

to Dismiss, p. 28. in Humane Society of the United States v. Block, No

81-2691 (D D.C)

24

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeal should be reversed, and the case remanded to the

district court for purposes of remand to the state court.

Respectfully submitted,

MARGARET WOODWARD

BAR NO. 13677

610 Poydras Street, Suite 318

New Orleans, LA 70130

Phone: (504)525-9538

Attorney for Petitioners Inter-

national Primate Protection

League and its Members, Peo-

ple for the Ethical Treatment

of Animals and its Members.

Alex Pacheco, and Louisiana in

Suppport of Animals and its

Members

GARY L. FRANCIONE

Rutgers-The State University

of New Jersey

School of Law-Newark

15 Washington Street

Newark, New Jersey 07102

Of Counsel.