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

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OCTOBER TERM, 1990 e—-—------ -

INTERNATIONAL PRIMATE PROTECTION LEAGUE

AND ITS MEMBERS, ET AL., PETITIONERS

Vv.

ADMINISTRATORS OF TULANE EDUCATIONAL FUND,

ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENT

NATIONAL INSTITUTES OF HEALTH

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

Yo.

QUESTION PRESENTED

Whether federal agencies may remove state court

actions to the federal courts pursuant to 28 U.S.C.

1442(a) (1).

(1)

TABLE OF CONTENTS

Statutory provision involved 200000000... ooo

Cee aeeusonanecuons

Summary of argument 22000 oooccecceceeeee eee

Argument:

I. Federal agencies may remove state court actions

to federal court pursuant to 28 U.S.C. 1442

SPIE siiiiieetettnitciriancareetstecsensccssecesesccrccersssecsocersceecoes

A. The language of Section 1442(a)(1) may

fairly be read to authorize removal by fed-

B. Interpreting Section 1442(a) (1) to author-

ize removal by federal agencies is consistent

with legislative history .......0....00000000000000.

C. An interpretation of Section 1442(a) (1)

that precluded removal by federal agencies

would produce absurd results and should

therefore be rejected 2.00.00... -

D. Interpreting Section 1442(a) (1) to author-

ize removal by federal agencies accords with

this Court’s decisions concerning suits

against the federal government .................

II. Petitioners’ arguments regarding res judicata

and NIH’s interest in this case are not before

this Court and are in any event without merit..

A. The Fourth Circuit’s decision in JPPL v.

Institute for Behavioral Research does not

preclude litigation of the removal issue in

TT EE

B. NIH had a sufficient interest in this case to

i ecoonnns ee

CC attain ae

Qo no nw’ KF

TABLE OF AUTHORITIES

Cases: Page

Aminoil, U.S.A., Inc. v. California State Water

Resources Control Bd., 674 F.2d 1227 (9th Cir.

TET chteninieheseensahirtnensetithdainenapanenmenieatacitiiatiliaDbicieninaietiiete dae 27

Arizona V. Manypenny, 451 U.S. 232 (1981)........ 18

Bank of the United States v. Planters Bank, 22

U.S. (9 Wheat) 905 (1824) 0-0. 24

Bender v. Williamsport Area School Dist., 475

Se I a emsthibiiot 7

Blackmar vy. Guerre, 342 U.S. 512 (1952) —............ 27

Brotherhood of R.R. Trainmen v. Baltimore &

O. R.R., 331 U.S. 519 (1947) 002. 17

Chattanooga Foundry & Pipe Works v. City of

Atlanta, 203 U.S. 390 (1906) 2.000. 15

Colorado v. Symes, 286 U.S. 510 (1982)... 9, 16, 25

Cooper Vv. Federal Reserve Bank, 467 U.S. 867

TERE ae sO Rie SOR RE so SS 35

Crowell v. McFadon, i2 U.S. (8 Cranch) 94

RESETS TE SENSS = Eee ie nA SS Re ke 23

Dozier v. Ford Motor Co., 702 F.2d 1189 (D.C.

PEE SE es Se ae 35

Dugan Vv. Rank, 372 U.S. 609 (19638) 00000. 27

Elliott v. Swartwout, 35 U.S. (10 Pet.) 137

ETERS ETERS EN Es ENE NPV Sr en 23

Employment Dev. Dep’t v. United States Postal

Serv., 698 F.2d 1029 (9th Cir. 1983) 000. 13

Estate of Wycoff v. Commissioner, 506 F.2d 1144

EES ey eee ee eee 13

Federal Housing Admin. Vv. Burr, 309 U.S. 242

RESET ee. SSCL ES ee 25, 33

Federal Land Bank v. Priddy, 295 U.S. 229

EERE Soe eee eee NERO 25

GAF Corp. Vv. United States, 818 F.2d 901 (D.C.

I RENITTE SESE SSE eA eae en 35

Georgia V. Evans, 316 U.S. 159 (1942) 13

Gnerich Vv. Rutter, 265 U.S. 388 (1924) 24

Hughes v. United States, 71 U.S. (4 Wall.) 232

I cheese Tata 35

IMFC Professional Servs. of Florida, Inc. v. Latin

American Home Health, Inc., 676 F.2d 152 (5th

SEs GUI? cninsnsinitetsiensieieibaiiensinenaieinene hoknatiniie 11

Cases—Continued : Page

IPPL v. Institute for Behavioral Research, 799

F.2d 934 (1986), cert. denied, 481 U.S. 1004

I cei a since arian dneihidenadinateen a 35, 36

International Primate Protection League v. In-

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

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

GUUIIEDY surielincesihecalieitasetehigtaceekstasidinianisatinenthialdasntetnsiebietbitiensiedl 3, 35, 36

Jefferson County Pharmaceutical Ass’n Ince. V.

Abbott Laboratories, 460 U.S. 150 (1983)... 13

K Mart Corp. v. Cartier, Inc., 486 U.S. 281

(SITTIN inks issniccoenh dcp tia iiehinamteegiadepiallbairlanantapcatninbibeemaaes 16

Keifer & Keifer v. Reconstruction Fin. Corp.,

ee 25

Kendall vy. United States, 37 U.S. 524 (1838) ...... : 24

Kremer v. Chemical Construction Corp., 456 U.S.

cn 35

Loeffler Vv. Frank, 486 U.S. 549 (1988) 0.0.0... 32, 33

Lovell Mfg. v. Export-Import Bank, 843 F.2d 725

(3d Cir. 1988) _......... ne BI 5 tates TR 11

Meigs Vv. M’Clung’s Lessee, 13 U.S. (9 Cranch) 11

STII Griiotcinta ith sensceinietnipiactasinebatinentiipestiimmenieiapanesenen 23

Mesa V. California, 489 U.S. 121 (1989) .... 17, 18, 20, 21,

25, 36-27

Minnesota Vv. United States, 305 U.S. 382 (1939) .. 24

Monell v. New York City Dep’t of Social Servs.,

I iii isle eataateectnine 13

NLRB v. Nash-Finch Co., 404 U.S. 138 (1971)... 30

Olney Vv. Arnold, 3 U.S. (3 Dall.) 308 (1796)... 23

Olson v. United States Spruce Corp., 267 U.S. 462

RES SS es ae 24

Otis v. Bacon, 11 U.S. (7 Cranch) 389 (1813)... 23

Ohio Vv. Helvering, 292 U.S. 360 (1934) —............. 13

PADER vy. Small Business Administration, 579

A.2d 1001 (Pa. Commw. 1990) —.......................... 31

Pettus v. Atchafalaya Wildlife Protective Society,

351 So. 2d 790 (La. Ct. App. 1977) —.................. 29

Pfizer Inc. Vv. India, 434 U.S. 308 (1978) — }

Reconstruction Fin. Corp. Vv. J.G. Menihan & Co.,

I i 25

Ruhl v. Railroad Retirement Bd., 342 F.2d 662

(7th Cir.), cert. denied, 382 U.S. 836 (1965)... 13

vI VII

wens ’ P ry ——— aes Cases—Continued : Page

— a wees coral oy aa se Young V. Community Nutrition Institute, 476 U.S.

i le Si sess 25 te hac 24 I aaa ase aici ieeteennennatenmiantaeinbinns 16

> : intimin Constitution, statutes and rule:

ees

Stanley v. Schwalby, 147 U.S. 508 (1898) ............ 13, 24 U.S. Const. :

Stewart Securities Corp. v. Guaranty Trust Co., FE TD ecpsccnvenscbescntensannsnertesiusnenanmsucmmenssmnevesunenees 5, 6, 7

597 F.2d 240 (10th Cir. 1979) 000. 36 Art. VI, Cl. 2 (Supremacy Clause) 5, 31

Tennessee V. Davis, 100 U.S. 257 (1880) ............ 18 Act of Feb. 4, 1815, ch. 31, § 8,3 Stat.198 0000000... 22

The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 Act of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 633 000. 22

ll ENE SE A EIS Ba SOP =e OEE n ESE wT 21, 22 Act of Mar. 3, 1863, ch. 81, § 5, 12 Stat. 756 22

United Mine Workers of America Vv. Gibbs, 383 Act of Mar. 7, 1864, ch. 20, § 9, 18 Stat. 17 0.0... 23

SCTE TR eee ce ee 36 Act of Feb. 28, 1871, ch. 99, § 13, 16 Stat. 437-438.. 23

United States v. Brown, 333 U.S. 18 (1948)........ 26 Act of Mar. 3, 1875, ch. 130, § 8, 18 Stat. 401 23

United States v. Campos-Serrano, 404 U.S. 293 Act of Aug. 23, 1916, ch. 399, 39 Stat. 532 0.0000... 23

REE aS OES aa 32 Act of Aug. 29, 1916, ch. 418, § 5, Art. 117, 39 Stat.

United States v. Cooper Corp., 312 U.S. 600 SER OT RR EE SE a ies ses ee 23

ESI RRS sree eeer oe sete ete lt ae a 12 Act of June 25, 1948, ch. 646, § 1442, 62 Stat. 938.. 23

United States v. Corrick, 298 U.S. 435 (1936) ...... 7 Administrative Procedure Act, 5 U.S.C. 551 et

United States v. Lee, 106 U.S. 196 (1882).............. 12, 24 i ceemeiinien 14, 25

United States v. Mine Workers, 330 U.S. 258 ee 27

ES SE ee oe 12

United States V. Minker, 850 US. 179 (1956)... 17 Clean Air Act, 2USC.7418(2). 80

United States v. PADER, No. 90-5337 (3d Cir. Clean Water Act, 33 U.S.C. aah a 30

Jan. 22, 1991) .................. wocnceuevesnenacceowocncececsosscnecs 31-32 Comprehensive Environmental Response, Compen-

“aa v. Union Pacific R.R., 91 U.S. 72 - sation and Liability Act, 42 U.S.C. 9620 30

United States v. Yellow Cab Co., 340 U.S. 543 a A, Sees 0 |

TR aa EN 15

ces epanennmeny-—aar a eeagaay A HSRERgae RE YRNG IDET ER is-1¢ 4(a), 15 U.S.C. 15 (a) 15

Valley Forge Christian College Vv. Americans § 4(a), ee

United for Separation of Church & State, 454 Elective Franchise Act (Act of Feb. 28, 1871)

U.S. 464 (1982) OT TL Se See 7 ch. 99, § 13, 16 Stat. 437-438 0... 23

Warner Valley Stock Co. v. Smith, 165 U.S. 28 Federal Water Pollution Control Act, 33 U. S. C.

| PN ni ES ie a ae 24 1251 et seq.:

Webster v. Fall, 266 U.S. 507 (1929) 20000000... 24 83 U.S.C. 1321 (a) (7) 0... nasononsenes 15

Will v. Michigan Dep’t of State Police, 109 S. Ct. 33 U.S.C. 13821 (1b) (5) 2... eneneeeeneeeeeeeeeeeeeees 15

| RISE IEE SS Oke 14 IED sisiinvdicnenitccenennnnesseonsemtveimncsmsetens 30, 31

Willingham v. Morgan, 395 U.S. 402 £1969)... 8, 11, 16, National Prohibition Act of 1919, ch. 85, § 28, 41

20, 21, 22, 26, 34 eee 23

Wilson Vv. Omaha Indian Tribe, 442 U.S. 653 Railroad Retirement Act of 1937, 45 U.S.C. 228b

STII ciictnsspuiiitapcicideseashpcedteapaniiaadenasitahiciadiaaasaticatineniaddde silaeiiia 13 a eeeeioan 13

Vit

Statutes and rule—Continued:

Resource Conservation and Recovery Act, 42

a acelin

Robinson-Patman Anti-Discrimination Act, 15

U.S.C. 18 et seq.:

15 U.S.C. 13 (a) —..... sensideinanigiaipnieaieaaniitesanamadimniian

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Safe Drinking Water Act, 42 U.S.C. 300j-6 .. ......

Sherman Act, § 7, 15 U.S.C. 7 0000.0 occ. cates

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12 U.S.C. 1441 (c) (8) 00. sateaisiunibactiamaientitii

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Statutes and rule—Continued: Page

EET er ean ee ner 28

SESE Re Ne ae ae 28

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22 U.S.C. 262f ......... Ss AE ee 29

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Revision Notes ................... RP 25

28 U.S.C. 1349 .......... ee siete 29

28 U.S.C. 1441 ........ Pec eN tr SERRE D: Ce aoe 20, 30, 36

I passim

Revision Notes... 21

28 U.S.C. 1442(a) 2, 14, 22, 36

28 U.S.C. 1442 (a) (1) passim

28 U.S.C. 1442(a) (2) 14, 17

28 U.S.C. 1442 (a) (2)-(4) 17

28 U.S.C. 1442 (a) (3) 17

28 U.S.C. 1442 (a) (4) 17

28 U.S.C. 1442 (b)

33 U.S.C. 984 (a) (3) ® 28

38 U.S.C. 1820(a) (1) 28

39 U.S.C. 401(1) ........ 29

Statutes and rule—Continued : Page

i 11

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ES TR ACen R eee ea PRED 12

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La. Code Civ. Proc. Ann. art. 3605 (West 1961)... 29

Fed. R. Civ. P.:

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a) 34

Miscellaneous:

Attorney General’s Manual on the Administrative

Procedure Act (1947) 2.0.00... 25

1 K. Davis, Administrative Law Treatise (2d

ee Ee ISA reer save FOR eC ene EN DT 24

Final Report of Attorney General’ s Committee on

Administrative Procedures, S. Doc. No. 8, 77th

Ceomaat.. Bad Teme. CRBER) .......ccccccceccceceeccescoccccscesceesss 23, 24

F. Frankfurter & J. Landis, The Business of the

Supreme Court (1928) .2...........ccccccccccccccccccceeeeeeeeee 23

Gibbons, The Eleventh Amendment and State

Sovereign Immunity: A Reinterpretation, 83

Colum. L. Rev. 1889 (1983) 200000. 23

H.R. Rep. No. 1656, 94th Cong., 2d Sess. (1976) .... 27

H. Hart & H. Wechsler, The Federal Courts and

the Federal System (1958) 00.0000... eee 22

Miscellaneous—Continued :

1A Moore’s Federal Practice (2d ed. 1986) ............

Note, Developments in the Law—Remedies

Against the United States and Its Officials, 70

Harv. L. Rev. 827 (1957) ...............2---..::.-:-eeeeeeees

C. Sands, Sutherland Statutes and Statutory Con-

struction (4th ed. 1974) :

H. Wechsler, Federal Jurisdiction and the Revision

of the Judicial Code, 13 Law & Contemp. Probs.

ec eI RTE RIE ies nen ee

C. Wright, A. Miller &. E. Cooper, Federal Prac-

tice and Procedure (1981) :

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-89

INTERNATIONAL PRIMATE PROTECTION LEAGUE

AND ITS MEMBERS, ET AL., PETITIONERS

Vv.

ADMINISTRATORS OF TULANE EDUCATIONAL FUND,

ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENT

NATIONAL INSTITUTES OF HEALTH

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-

A15) is reported at 895 F.2d 1056.

JURISDICTION

The judgment of the court of appeals was entered

on March 8, 1990 (Pet. App. Al-A15). A petition

for rehearing was denied on April 12, 1990 (Pet.

App. A24-A25). The petition for a writ of certiorari

was filed on July 12, 1990, and was granted on No-

vember 26, 1990, limited to the question whether 28

U.S.C. 1442(a) permits a federal agency to remove

(1)

a civil action from state court to federal court. The

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

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

A civil action or criminal prosecution commenced

in a State court against any of the following

persons may be removed by them to the district

court of the United States for the district and

division embracing the place wherein it is

pending:

(1) Any officer of the United States or any

agency thereof, or person acting under him, for

any act under color of such office or on account

of any right, title or authority claimed under

any act of Congress for the apprehension or

punishment of criminals or the collection of

revenue.

STATEMENT

This case concerns the care and custody of macaque

monkeys that were the subject of experiments to de-

termine whether the monkeys recovered use of limbs

after nerves to the limbs were severed. The experi-

ments were conducted during 1981 by a private re-

search facility—then called the “Institute for Be-

havioral Research,” later the “Institutes for Behavior

Resources” (IBR)—under funding from the National

Institutes of Health (NIH). The purpose of the ex-

periments was to gain information that could be used

in rehabilitating human patients with neurological

damage. Pet. App. A2.

In September 1981, Maryland police officers exe-

cuted a warrant at the facility where the monkeys

were then being kept and seized the monkeys, acting

upon allegations that the monkeys were being mis-

treated. Pet. App. A3. Shortly thereafter, pursuant

to a court order, NIH assumed custody of the mon-

keys pending resolution of a criminal complaint

against Dr. Edward Taub, chief of IBR’s Behavioral

Biology Center. Jd. at A3-A4; IBR App. 6a-7a.'

After that order expired, NIH continued to act as the

monkeys’ principal custodian with the consent and

ccoperation of IBR, the monkeys’ owner. Pet. App.

A4; IBR App. 7a. Throughout this period, NIH at

its own expense housed and fed the monkeys and pro-

vided them with routine veterinary care. IBR App.

7a, 8a; NIH App. 3a.

In December 1981, petitioners and other plaintiffs

filed an action against IBR and NIH, among others,

in the Circuit Court for Montgomery County, Mary-

land. The complaint alleged that the defendants had

violated Maryland animal cruelty laws and the fed-

eral Animal Welfare Act, 7 U.S.C. 2131 et seq., and

asked the court to grant plaintiffs custody of the

monkeys. See International Primate Protection

Leaque v. Institute for Behavioral Research, Inc., 799

F.2d 934, 937-938 (4th Cir. 1986), cert. denied, 481

U.S. 1004 (1987). NIH removed the case to federal

court without opposition, and then IBR moved to dis-

miss the complaint for lack of standing. 799 F.2d at

938, 940. The district court granted the motion to

dismiss on grounds of standing, and the Fourth Cir-

cuit affirmed. /d. at 937.

In June 1986, while the Fourth Circuit case was

pending, NIH transferred the monkeys to Tulane

University’s Delta Regional Primate Research Center

'“IBR App.” refers to the appendix to the brief in oppo-

sition to certiorari filed by respondent Institutes for Be-

havior Resources. “NIH App.” refers to the appendix to the

brief in opposition to certiorari filed by respondent National

Institutes of Health.

in Covington, Louisiana (Delta Center). Under

NIH’s letter of agreement with the University, the

Delta Center was to “act[] strictly as an aide to NIH

in its role as . . . custodian [for the monkeys].” IBR

App. 8a; NIH App. la. NIH paid the Delta Center

for housing the monkeys and was reimbursed by IBR

for a portion of these costs. IBR App. 8a; NIH App.

3a.

In December 1988, NIH announced plans to eu-

thanize three of the monkeys pursuant to the recom-

mendation of a panel of independent experts. As

part of the euthanasia procedure, which would in-

volve deep surgical anaesthesia, NIH planned to con-

duct humane, nonpainful procedures by which it

hoped to gain knowledge that could lead to improve-

ments in rehabilitation therapy for persons who have

suffered brain or spinal cord damage, strokes, or sim-

ilar injuries. Pet. App. A4.

Before NIH could carry out the euthanasia, peti-

tioners sued NIH, IBR, and the Administrators of

the Tulane Educational Fund (Tulane) in the

Civil District Court for the Parish of Orleans in

Louisiana. Pet. App. A30-A31. Petitioners sought

an order enjoining the enthanasia and granting cus-

tody of the monkeys to petitioners or members of the

U.S. Congress. Jd. at A38-A39. After the state court

granted petitioners’ motion for a temporary injunc-

tion barring euthanasia of the three monkeys (IBR

App. 1a), NIH removed the case to the United States

District Court for the Eastern District of Louisiana

pursuant to 28 U.S.C. 1442(a)(1). J.A. 1, 16, 17.

2 Petitioners sought injunctive relief against the “agents

and officers of NIH, IBR, and the administrators of the

Tulane Education Fund.” Pet. App. A30-A32. The state

court’s temporary restraining order named only the admin-

eae al

= =< woe

Petitioners moved to remand the case, arguing that

the case had been improperly removed. J.A. 1-2.

NIH filed motions to dismiss the case on the grounds

that petitioners lacked Article III standing and that

their suit was barred by res judicata, the Supremacy

Clause, and sovereign immunity. The district court

denied both NIH’s and petitioners’ motions. Pet.

App. Al7, A18.

Pending consideration of those motions, the district

court issued a temporary restraining order “enjoin-

ing the Administrators of the Tulane Educational

Fund, the National Institutes of Health, and their

agents, attorneys and servants, from inhumane treat-

ment towards, or euthanasia or other destruction” of

the monkeys. Pet. App. Al6. The district court later

refused to vacate its order when NIH objected that

the order had exceeded the-twenty-day limit on tem-

porary restraining orders imposed by Federal Rule

of Civil Procedure 65(b). Pet. App. A4.

NIH and Tulane appealed the district court’s order

to the United States Court of Appeals for the Fifth

Circuit, arguing that the order had become the func-

tional equivalent of a preliminary injunction appeal-

able under 28 U.S.C. 1292(a)(1). Pet. App. A4. On

appeal, NIH and Tulane argued that petitioners had

not demonstrated a likelihood of success warranting

preliminary injunctive relief because they (1) lacked

Article III standing, (2) had failed to state a cause

of action under Louisiana law, and (3) were barred

by the Supremacy Clause from securing injunctive

relief under state law against NIH’s planned re-

search activities. Jd. at A5.

istrators, “their agents, attorneys and servants” (IBR App.

A), because at the time of issuance the other defendants

had not been served.

The court of appeals agreed that petitioners lacked

Article III standing and accordingly did not address

respondents’ other arguments. Pet. App. A5-A11,

Al5.* The court rejected petitioners’ argument that

the case was improperly removed. Relying on Fifth

Circuit precedent, the court held that federal agen-

cies are entitled to remove state court actions pur-

suant to 28 U.S.C. 1442(a)(1). Pet. App. Al2-A13

(citing Smith v. City of Picayune, 795 F.2d 482

(1986)). The court further held that NIH had a

sufficient interest in this case to invoke that provi-

sion. Pet. App. A13-A15.

A petition for rehearing was denied, Pet. App.

A24-A25, and petitioners filed a petition for certio-

rari presenting three questions: whether the Fifth

Circuit properly ruled that (1) an agency may re-

move an action under 28 U.S.C. 1442, (2) NIH had

a sufficient interest in the action to remove it, and

(3) petitioners lacked standing. This Court granted

certiorari limited to the first question. 111 S. Ct.

507 (1990).

SUMMARY OF ARGUMENT *

l.a. Section 1442(a)(1) authorizes removal by

“any officer of the United States or any agency

thereof.” That language may reasonably be read to

*’ The appendix to the petition omits several lines from the

relevant portion of the court of appeals’ decision. Compare

Pet. App. A8& with 895 F.2d at 1060 (text accompanying

note 4).

* As an initial matter, it is not clear that the Court can

properly decide the only question on which it granted cer-

tiorari. The court of appeals below ruled—correctly, in our

view—that petitioners lacked Article III standing to main-

tain their suit. Pet. App. Al5 (“As federal court jurisdiction

is limited by the constitution, the plaintiffs’ failure to allege

authorize removal by any agency of the United

States as well as by any officer of the United States.

Contrary to petitioners’ contention, neither the word

“persons” nor the word “him” used elsewhere in the

injury sufficient to satisfy Article III standing requirements

is fatal to their suit.”); see id. at A5-All. Although peti-

tioners sought review of that question, see Pet. i, this Court

limited its grant of certiorari to the court of appeals’ ruling

on removal. 111 S. Ct. 507 (1990). In the present posture

of the case, therefore, petitioners lack Article III standing.

If they lack Article III standing, then they lack Article III

standing to litigate further before this or any other federal

court, except to seek review of the standing ruling and until

they have secured such review. See Bender v. Williamsport

Area School Dist., 475 U.S. 534, 541 (1986); United States

v. Corrick, 298 U.S. 435, 440 (1936). In particular, given

that petitioners lack Article III standing, they have no stand-

ing to litigate and secure a decision from this Court on

the propriety of removal, since this Court must satisfy itself

that the requirements of Article [1]—including standing—

have been met. See Bender, 475 U.S. at 541.

This is not an academic quibble. One purpose of standing

is to ensure the concrete adverseness necessary to proper

presentation of issues, see Bender, 475 U.S. at 542. Yet here

the Court would be resolving the removal question in a

context in which the court below specifically found the injury

in fact necessary to such adverseness to be lacking, Pet.

App. A5-A11; see Valley Forge Christian College Vv. Americans

United for Separation of Church & State, 454 U.S. 464, 486

(1982)—a finding this Court has declined to review. Given

the unreviewed decision on standing by the court below, any

decision by this Court on removal will be rendered in the

context of a case that is outside the bounds of Article III.

While this Court has jurisdiction to decide that cases are

not properly within Article III, it is difficult to see how the

Court can accept the proposition that a case before it is not

within Article I1I]—the effect of leaving the standing deci-

sion below unreviewed—and nonetheless go on to issue an

opinion on some other ground.

provision plainly indicates an intention to limit those

entitled to remove to natural persons.

Even if this Court were to read the opening clause

of Section 1442(a)(1) more narrowly—as authoriz-

ing removal only by an officer of the United States

or by an officer of an agency of the United States—the

present action would still be removable under a na-

tural reading of the second clause of Section 1442

(a)(1). That clause goes on to authorize removal by

a “person acting under” the federal officer. NIH is

a “person acting under” such an officer, and there-

fore properly invoked this provision in removing the

action brought against it in state court.

Moreover, interpreting Section 1442(a)(1) to au-

thorize removal by federal agencies accords with the

overall structure of the statute. Section 1442 was de-

signed to afford a comprehensive right of removal in

cases challenging the conduct of the federal govern-

ment. This Court has accordingly recognized that

Sectton 1442(a)(1) embodies Congress’s decision

that “federal officers, and indeed the federal govern-

ment itself, require the protection of a federal

forum.” Willingham v. Morgan, 395 U.S. 402, 407

(1969) (emphasis added). Because the federal gov-

ernment acts largely through its agencies, Section

1442(a)(1) should he construed to authorize them

to remove state court actions to the federal courts.

b. The legislative history, though not decisive, sup-

ports our construction of Section 1442(a)(1). Al-

though earlier removal provisions were drafted with

reference to federal officers, this merely reflects the

fact that, at the time of enactment, federal officers,

and not federal agencies, were being sued. The sig-

nificant aspect of the history of these various re-

moval provisions is that each was founded on the

need to “maintain the supremacy of the laws of the

United States.” Colorado v. Symes, 286 U.S. 510,

517 (1932). In contrast to earlier provisions, Section

1442 was enacted at a time when numerous federal

agencies could be sued in state courts. The extension

of the right of removal to federal agencies in the lan-

guage of Section 1442(a)(1) reflected a logical re-

sponse to this development.

ce. Construing Section 1442(a)(1) to authorize re-

moval by federal agencies is necessary to avoid ab-

surd results that would flow from a contrary inter-

pretation. In this case, for example, the officers of

NIH would be prevented from removing this case

even though they were expressly subject to the in-

junctive relief sought and obtained by petitioners.

Congress could not have intended the availability of

a federal forum to turn on petitioners’ selection of

NIH as a defendant, rather than its officers, particu-

larly when petitioners sought relief against the offi-

cers. Petitioners have suggested no plausible reason

why Congress would have wanted to afford a right

of removal to federal officers, while denying such a

right to federal agencies. Their particular brand of

literalism ultimately makes no sense.

d. As this case also shows, in many contexts there

is no meaningful distinction between actions by an

agency and actions by an officer of the agency. This

Court has recognized as much on at least two occa-

sions. Both cases, like this one, concern the circum-

stances under which federal agencies can be sued.

Similarly, Congress in several statutes has waived

sovereign immunity to certain actions brought in

state court and expressly permitted such actions to

name either agencies or officers as defendants. Con-

gress certainly did not intend the removal of these

suits to turn on the fortuity of which entity was

named.

2. Petitioners’ arguments that (1) the issue of re-

moval in this case is res judicata and (2) NIH

lacked a sufficient interest in this case to remove it

are beyond the scope of this Court’s grant of certio-

rari and in any event are without merit. The re-

moval issue under Section 1442(a)(1) was neither

raised nor decided in the Fourth Circuit decision on

which petitioners’ res judicata argument relies.

Their insufficient-interest argument is defeated by

their own decision to name NIH as a defendant and

to base their entire complaint on alleged misconduct

by NIH. In addition, both the record in this case and

NIH’s statutory mandate show that NIH has a vital

interest in this case.

ARGUMENT

I. FEDERAL AGENCIES MAY REMOVE STATE

COURT ACTIONS TO FEDERAL COURT PURSU-

ANT TO 28 U.S.C. 1442(a)(1)

A. The Language of Section 1442(a)(1) May Fairly Be

Read to Authorize Removal by Federal Agencies

NIH invoked Section 1442(a)(1) to remove to

federal court the suit that petitioners brought

against it in Louisiana state court challenging NIH’s

care and custody of a group of macaque monkeys.

Section 1442 provides in relevant part:

(a) A civil action or criminal prosecution com-

menced in a State court against any of the fol-

lowing persons may be renivved by them to the

district court of the United States for the dis-

trict and division embracing the place wherein

it is pending:

(1) Any officer of the United States or any

agency thereof, or person acting under him,

for any act under color of such office * * *.

The question is whether this provision may be in-

voked by federal agencies.

We believe that a natural reading of the statutory

language leads to the conclusion that Section 1442

(a)(1) may be relied upon by federal agencies as

well as federal officers. There are two routes to this

destination. The first route relies on the opening

clause of Section 1442(a)(1), which authorizes re-

moval by “‘[a]ny officer of the United States or any

agency thereof.” 28 U.S.C. 1442(a)(1) (emphasis

added). NIH is an agency of the United States, see

42 U.S.C. 202, 281(a); 28 U.S.C. 451, and therefore

may remove an action brought against it in state

court. See. e.g., IMFC Professional Servs. of Florida,

Ine. vy. Latin American Home Health, Inc., 676 F.2d

152, 156 (5th Cir. 1982).

We fully recognize that this is by no means the

only possible reading of the opening clause. The

phrase “or any agency thereof” may alternatively be

read as part of the prepositional phrase that pre-

cedes it, so that the clause authorizes removal by an

“officer of the United States” or by an “officer of

* * * any agency thereof.” See, e.g., Lovell Mfg. v.

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

1988). For the reasons set forth below, we believe

that the Fifth Circuit correctly resolved this ambig-

uity in favor of the former reading, which is con-

sistent with the statute’s purpose of affording “the

federal government * * * the protection of a federal

forum.” Willingham, 395 U.S. at 407.

If this Court disagrees with that interpretation, a

natural reading of the second clause of Section 1442

(a) (1) still permits NIH to remove this action. By

its terms, the second clause authorizes removal by a

“nerson acting under” an officer of the United States.

The activities of NIH are subject to the direction and

control of the Director of NIH, an officer of the

United States, see 42 U.S.C. 282(a), who in turn

answers to the Secretary of Health and Human Serv-

ices (ibid.) NIH is thus a “person acting under” a

federal officer, and accordingly is expressly author-

ized to remove an action under Section 1442(a) (1).

Since every executive agency acts under some offi-

cer of the United States, this reading of Section

1442(a)(1) would lead to the general conclusion that

such agencies—as well as their officers—may rely on

the statute to remove actions to federal court. This

result does not prove too much, but instead proves

just enough. It is the result suggested by the pur-

pose of the statute, see pp. 16-21, infra; since it also

rests on a natural reading of the statutory text, that

reading should be adopted by this Court.

Contrary to petitioners’ contention (Pet. Br. 9-10),

Congress’s use of the word “persons” to refer to

those entitled to remove does. not indicate that only

natural persons may invoke Section 1442(a)(1). In

fact, the general rule is that the meaning of “person’”’

is not confined to natural persons. See 1 U.S.C. 1.

The precise scope of the term depends on its context:

“The word ‘person’ * * * is not a term of art with a

fixed meaning wherever it is used.” Pfizer line. vy.

india, 434 U.S. 308, 315 (1978).° Thus, the Court

5 On some occasions, the Court has said “in common usage,

the term ‘person’ does not include the sovereign [and] stat-

utes employing the phrase are ordinarily construed to ex-

clude it.” United States Vv. Cooper Corp., 512 U.S. 600, 604

(1941): aceord United States Vv. Mine Workers, 330 U.S. 258,

275 (1917). Inso stating, however, the Court has emphasized

that there is “no hard and fast rule of exclusion,” Cooper,

312 U.S. at 604-605. In addition, the Court has more recently

indicated that the rule normally should apply only “where

the statute imposes a burden or limitation, as distinguished

has interpreted the word “person” in the United

States Code to include governmental agencies. See,

e.g., Jefferson County Pharmaceutical Ass’n Ine. v.

Abbott Laboratories, 460 U.S. 150, 154-170 (1983)

(purchases by state public corporation and other

state instrumentalities subject to Robinson-Patman

Anti-Discrimination Act, 15 U.S.C. 13(a) and (f));

see also Estate of Wycoff v. Commissioner, 506 F.2d

1144, 1151 (10th Cir. 1974) (United States a “per-

son” for purposes of federal tax code provision) ;

Ruhl v. Railroad Retirement Bd., 342 F.2d 662, 666

(7th Cir.) (Department of Army and other “gov-

ernmental bodies” are “person[s]” under Railroad

Retirement Act of 1937, 45 U.S.C. 228b(a)). cert.

denied, 382 U.S. 836 (1965).° In other settings, the

from conferring a benefit or advantage,” Wilson v. Omaha

Indian Tribe, 442 U.S. 653, 667 (1979), and that “much de-

pends on the context” (¢bid.). Accord 3 C. Sands, Sutherland

Stac::tes and Statutory Construction § 62.02, at 72 (4th

ed. 1974). The rule thus should not be applied in interpreting

Section 1442(2)(1), which does not impose a burden or lim-

itation but instead was enacted to afford the federal govern-

ment the benefit of a federal forum for challenges to actions

“under color of * * * office.”

*See also Monell v. New York City Dep't of Social Servs.,

$56 U.S. 658 (1978) (municipality is a “person” under W2

U.S.C. 1983); Georgia Vv. Evans, 316 U.S. 159, 161 (1942)

(holding that State was a “person” entitled to sue under Sec-

tion 7 of Sherman Act and rejecting argument that “the word

‘person’ * * * could not include a governmental body”); Ohio

Vv. Helvering, 292 U.S. 260, 370-371 (1934) (state agencies are

“nersonfs!” under federal liquor tax laws); Stanley V.

Schwalbu, 147 US. 508, 517 (1895) (United States is a “per-

son” under state laws, even if otherwise immune from their

operation): Employment Dev. Dep't Vv. United States Posta!

Serrv., 698 F.2d 1029, 1032-1033 (9th Cir. 1983) (Postal Serv-

ice a “person” under state law provision); cf. United States

Court has reached a contrary conclusion. See, e./.,

Will vy. Michigan Dep’t of State Police, 109 S. Ct.

2304 (1989). The point is this: the use of the word

“persons” in Section 1442(a) does not, as petitioners

beguilingly suggest, inexorably limit the scope of the

statute to individuals.’ .

Indeed, the remainder of Section 1442(a) strongly

suggests that the “persons” who may remove an ac-

tion under that Section are not limited to natural

persons. Included among the listed “persons” who

may remove an action under Section 1442(a) is “[aj

property holder whose title is derived from [an offi-

cer of the United States].” 28 U.S.C. 1442(a) (2).

Such property holders are obviously not limited to

natural persons, but include other entities that might

hold property, such as corporations, partnerships,

and trusts. The same word “persons” in Section

1442(a) surely cannot mean one thing when read

with subsection 1442(a)(2) (where it plainly in-

cludes non-natural persons) and another when read

with subsection 1442(a) (1).

Petitioners similarly err in relying on the presence

in Section 1442(a)(1) of the pronoun “him.” See

Vv. Yellow Cab Co., 340 U.S. 543, 553-556 (1951) (in Federal

Tort Claims Act actions, United States subject to being im-

pleaded under Fed. R. Civ. P. 14, providing for service of

process upon a “person” not a party to main action).

7 That Congress deemed it necessary in the Administrative

Procedure Act, 5 U.S.C. 551 ef seq., expressly to exclude “an

agency” from the definition of “person” obviously does not

indicate, as petitioners would have it, that Congress drew a

sharp “distinction between ‘persons’ and ‘agencies’” else-

where in the Code (Pet. Br. 9). On the contrary, it seems

nore reasonable to infer that Congress believed that “person”

otherwise would be construed to include an agency, in the

absence of Congress’s expression of a contrary intent.

‘

Pet. Br. 10.° The masculine form of the pronoun is

commonly used to refer to entities denominated else-

where in a statute as “persons.” For example, Sec-

tion 4(a) of the Clayton Act authorizes private ac-

tions by “‘any person who shall be injured in his busi-

ness or property” and provides for recovery of

“threefold the damages by him sustained,” 15 U.S.C.

15(a) (emphasis added). Any argument that

this wording limits those entitled to sue to natural

persons is defeated by Section 1(a) of the Act, which

defines “person” to include corporations and associa-

tions, 15 U.S.C. 12(a), and by this Court’s holding in

Pfizer, supra, that the term “person” also includes a

foreign government. See also Chattanoega Foundry

d Pipe Works vy. City of Atlanta, 203 U.S. 390, 396-

397 (1906).

* Petitioners’ argument on this score only applies to our

reading of the first clause of Section 1442(a) (1) as affording

agencies a right of removal. Even if petitioners are correct

in the significance they ascribe to the use of the pronoun

“him,” an agency may still remove an action under Section

1442(a)(1) as a “person acting under” an officer of the

United States. Only if petitioners are correct both in their

limitation of “persons” and “him” to natural persons can

they prevail.

*See also, ¢.g., Robinson-Patman Anti-Discrimination Act,

15 ULS.C. 13¢b) (‘nothing herein contained shall prevent a

seller rebutting the prima-facie case thus made by showing

that Avs lower price or the furnishing of services or facili-

ties * * * was made in good faith’) (emphasis added); Fed-

eral Water Pollution Control Act, 33 U.S.C. 1321(b) (5) (re-

quiring “[a]ny person in control of a vessel or of an onshore

facility or an offshore facility” to notify government of oil

spill “as soon as ke has knowledge of” spill) (emphasis

iddedy): 53 TLS.C. 1321¢a)¢7) Cdefining “person” to include

ron-natural entities).

Petitioners’ final argument in support of the

“nlainness” of their reading of Section 1442(a) (1)

is that Congress could have draftea the provision

more clearly to permit removal by federal agencies.

Pet. Br. 9. This argument is self-defeating. Con-

gress likewise could have drafted the provision more

clearly to prohibit such removal, for example, by

using the term “individuals” instead of “persons” to

describe those entitled to removal under the provi-

sion. Petitioners’ argument that Congress could have

drafted the statute more clearly merely confirms the

ambiguity of the language that Congress did enact.

Cf. Young v. Community Nutrition Institute, 476

U.S. 974, 980-981 (1986).

Petitioners’ arguments as to the purported “plain-

ness” of Section 1442(a)(1) suffer from a more

fundamental deficiency. While we certainly agree

that plain language should be given its plain mean-

ing, the proper construction of Section 1442(a)(1) is

not readily apparent from the text alone. In such a

case, the statute must be read as a whole and in light

of its purpose. FE.g., K Mart Corp. v. Cartier, Ine.,

486 U.S. 281, 291 (1988). In the context of this

very statute, the Court has specifically warned that

the statutory purpose “should not be frustrated by a

narrow, grudging interpretation of section 1442

(a)(1).” Willingham, 395 U.S. at 407. See also

Symes, 286 U.S. at 517 (Section 1442 should be “lib-

erally construed to give full effect to the purposes for

which it was enacted”). Under these principles, Sec-

tion 1442(a)(1) should be interpreted—as a natural

reading of its text permits—to authorize removal by

federal agencies.

Despite its title, the scope of Section 1442 clearly

is not limited to actions against federal officers.'’

Section 1442 expressly allows former officers and per-

sons who hold title under federal officers to invoke

the provision. 28 U.S.C. 1442(b), 1442(a)(2). Be-

yond this, subsections (a)(1), (a)(3), and (a) (4)

broadly authorize removal of state court suits chal-

lenging actions of the Executive, the Judiciary, and

the Legislature. The comprehensive reach of Section

1442—covering all three branches, former officers,

and persons acting under officers—strongly suggests

that Congress intended to allow removal of the broad

array of governmental actions taken under color of

office."

That intention has guided this Court’s decisions

construing Section 1442 and its statutory predeces-

sors. The Court’s definitive description of the pur-

' Tlere, as is often the case, the statutory title is not a

reliable guide to interpretation. See, e.g., United States v.

Minker, 350 U.S. 179, 185 (1956); Brotherhood of R.R. Train-

men V. Baltimore & O. R.R., 331 U.S. 519, 528-529 (1947):

United States V. Union Pac. R.R., 91 U.S. 72, 82 (1875).

' Considering only the structure of Section 1442(a), it

might be thought that subsection (a) (1) concerns solely the

executive branch, since subsections (a)(3) and (a) (4) ad-

dress the judicial and legislative branches, respectively. From

the history of Section 1442, however, it is clear that “sub-

sections (2)-(4) of §$ 1442(a) are largely the ‘residue’ of

the pre-1948, more limited removal statutes now entirely

encompassed by the general removal provision of the first

clause of subsection (1).” Mesa v. California, 489 U.S. 121,

34 (1989). The retention of earlier, essentially redundant

provisions in subsections (a)(2)-(a)(4) further suggests

Coneress’s intention in enacting Section 1442 to afford a

comprehensive right of removal with respect to state suits

challenging all governmental actions.

pose of such provisions remains that set forth in

Tennessee v. Davis, 100 U.S. 257, 263 (1880):

[The government| can act only through its offi-

cers and agents, and they must act within the

States. If, when thus acting, and within the

scope of their authority, those officers can be

arrested and brought to trial in a State court,

for an aileged offence against the law of the

State, yet warranted by the Federal authority

they possess, and if the general government is

powerless to interfere at once for their protec-

tion,—if their protection must be left to the

action of the State courts,—the operation of

the general government may at any time be ar-

rested at the will of one of its members.

A century later, the Court relied on this same pas-

sage in reemphasizing “the need to safeguard the

exercise of legitimate federal authority.” Arizona v.

Manypenny, 451 U.S. 232, 241 n.16 (1981). See

also Mesa vy. California, 489 U.S. 121, 126 (1989)

(quoting Tennessee vy. Davis, supra).

Section 1442(a)(1) should not, consistent with

the comprehensive scope of Section 1442 as a whole,

be read to exclude removal of actions against federal

avencies. Agencies, as they are defined for purposes

of title 28, constitute a significant portion of

the government and virtually the entire executive

branch.’ Thus, most “officers of the United States”

'= 28 U.S.C. 451 provides in relevant part:

As used in this title:

* . me ” *

The term “agency” includes any department, in-

dependent establishment, commission, administra.

tion, authority, board or bureau of the United States

or any corporation in which the United States has

within the meaning of Section 1442(a)(1) are also

“officers of an[] agency.” Since an agency can act

only through its members, every action of an agency

officer under color of office is in some sense “agency

action,” and therefore arguably affords the basis for

a suit against the agency. Interpreting Section 1442

(a)(1) to preclude removal of state court challenges

to such actions would defeat the obvious purpose

of the provision.

Petitioners nonetheless argue (Pet. Br. 16-17) that

reading Section 1442(a)(1) to permit removal by

federal agencies would “broaden removal jurisdiction

far beyond original jurisdiction.” This is both in-

a proprietary interest, unless the context shows that

such term was intended to be used in a more limited

sense.

' Petitioners read Section 1442(a)(1) to permit removal

by “an officer of the United States or an officer of an agency

of the United States” (Pet. Br. 9). Nowhere, however, do

petitioners explain the distinction they purport to discern

between officers of the United States and officers of agencies

of the United States. We are not aware of any statute or

case law that draws such a distinction. By the same token,

numerous statutes addressing suits by or against the Fxecu-

tive Branch draw no such distinction. For example, 28 U.S.C.

1345 grants original jurisdiction to district courts of actions

“commenced by the United States, or by any agency or off ver

thereof.” Other provisions throughout the U.S. Code employ

the same or similar language and do not distinguish officers of

the United States from officers of agencies. These prov’.oms

suggest that, at least for purposes of Section 1442a) (1),

all officers of agencies of the United States are officers of

the United States. Petitioners’ interpretation of Section

1442¢a)(1) thus appears to render the phrase “any agency

thereof” superfluous, in violation of a cardinal principle of

statutory construction. 2A C. Sands, Sutherland Statutes

aud Statutory Construction §$ 16.06 (4th ed. 1974).

correct and irrelevant. It is incorrect because agen-

cies, like officers, may invoke Section 1442(a)(1)

only if they can allege a federal defense to the action

sought to be removed. Mesa, 489 U.S. at 125-154.

This requirement ensures that cases removed by agen-

cies will normally require resolution of a federal issue,

thereby fulfilling the purpose for which the right to

removal was conferred. Moreover, petitioners’ as-

sumption that the scope of removal jurisdiction must

be coextensive with original jurisdiction is belied by

the existence of Section 1442. Under 28 U.S.C. 1441,

federal courts already have removal jurisdiction over

any suit as to which they could assert original juris-

diction. Section 1442 “serves to overcome the ‘well-

pleaded complaint’ rule which would otherwise pre-

clude removal [under Section 1441] even if a federal

defense were alleged.” Mesa, 489 U.S. at 136,"

Similarly beside the point is petitioners’ argument

(Pet. Br. 17-19) that “[t|his case presents issues

of stute law that are within the peculiar province of

the Louisiana state courts.” Every case removed

under Section 1442 is based on state law; otherwise,

it would have been removable under Seciion 1441.

This is as true for cases removed by federal officers

as it is for those removed by federal agencies. Pe-

titioners’ argument thus provides no basis for inter-

preting Section 1442(a)(1) to preclude removal by

‘See also Willhnaham, 395 U.S. at 406 (Section 1442

(a) (1) provides for removal of a suit involving “any act

‘under color’ of federal office, regardless of whether the suit

could ariqivally hace been brought in tederal court’) Cem-

phasis added); see also 4A C, Wright, A. Miller & FE. Cooper,

Federal Practice and Procedurc § 3727, at 459 (C1981) Cre-

moval statute “may be exercised even though the action might

not have been brought initially in a federal court.”); IA

Moors Federal Practice © O1GA, at 385 (2d ed. 1986).

agencies. That was made clear by this Court long

ago: “Nor is it any objection that questions are in-

volved which are not all of a Federal character. If

one of the latter exist, if there be a single such in-

gredient in the mass, it is sufficient. That element

is decisive upon the subject of [removal] jurisdic-

tion.” The Mayor v. Cooper, 73 U.S. (6 Wall.) 247,

252 (1868) (quoted in Mesa, 489 U.S. at 129).

B. Interpreting Section 1442(a)(1) to Authorize Re-

moval by Federal Agencies Is Consistent with Leg-

islative History

The current version of Section 1442 was enacted

in 1948 as part of a comprehensive revision and

codification of the Judicial Code. Willingham, 395

U.S. at 406. As the Pevision Notes to Section 1442

indicate, subsection (a)(1) derived from Section 76

of the prior Code, 28 U.S.C. 76 (1940), which was

“limited to revenue officers engaged in the enforce-

ment of the criminal or revenue laws.” 28 U.S.C.

1442 Revision Notes. The earlier provision, accord-

ing to the Notes, was “extended to apply to all offi-

cers and emplovees of the United States or any

avency thereof.” Jhid. This description, which rep-

resents the only legislative history that specifically

wldresses the scope of Section 1442(a)(1), suffers

from the same ambiguity as the statutory lancuage

to which it refers." The historical context in which

™ Contemporaneous commentary on the 1948 codification

suemvests that Section 1442¢a)01) was understood to author-

ize removal by federal agenc’es. See H. Weehsler, Federal

Jariadiel] avd the Revision of the dud cial Code, 12 Law &

Conterop. Probs. 216, 220-221 (1918) (areuine that federal

‘courts should have ori@inal, in addition to removal, jurisdie-

tion over “actions against agencies or officers of the United

States based on a claim of illegality in conduct under color of

Section 1442(a) was enacted, however, supports in-

terpreting that provision to allow removal by federal

agencies.

Section 1442(a) is the latest of a series of removal

provisions applicable to suits challenging the conduct

of the federal government. In 1815, Congress enacted

a temporary measure to enforce a trade embargo with

Eneland over the opposition of the New England

states." This provision was followed by passage of

the Force Act of 1833 in response to South Carolina’s

attempt to thwart enforcement of federal revenue

laws." The Force Act was gradually expanded during

the Civil War, Reconstruction, and on into the twen-

tieth century to authorize removal by a broadening

ranve of federal officials. Willingham, 395 U.S. at

404-405."

their office’). See also H. Hart & H. Wechsler, The Federal

Courts and the Federal Sustem 1147-1150 (1953) (discussing

Section 1442(a) (1) as designed “for the protection of federal

officers and agencies and persons acting under them”).

“ The Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 198, “allowed

federal officials involved in the enforcement of the customs

statute to remove to the federal courts any suit or prose-

cution commenced because of any act done ‘under color’ of

foffice].” Willingham, 395 U.S. at 405.

17 The Act of Mar. 2, 1833, ch. 57, $3, 4 Stat. 635, pro-

vided for removal of any suit or prosecution commenced

against “any officer of the United States, or other person, for

or on account of anv act done under the revenue laws of the

United States or under colour thereof.”

'* Congress passed another temporary measure during the

Civil Var, allowing “any officer, civil or military” to remove

any suit for any “wrongs done or committed * © * during

the present rebellion” under color of federal law. Act of

Mar. 3. 1863, ch. 81, §5, 12 Stat. 756; see The Mayor V.

Cooper, 7 US. (6 Wall.) 247 (1868). This statute expired

In drafting these removal provisions, Congress

referred to federal officers because they, and not fed-

eral agencies, were the ones being sued in state courts.

Throughout this period, state court suits avainst fed-

eral officers were commonplace, while suits against

government agencies were rare.’ As a formal matter,

these suits often named the officers in their personal

capacity, even though they typically complained of

shortly after the Civil War, but the Force Bill continued in

effect, and was expanded to apply to collectors of the internal

revenue (Act of Mar. 7, 1864, ch. 20, $9, 12 Stat. 17), to

persons acting under color of the Elective Franchise Act

(Act of Feb, 28, 1871, ch. 99, § 15, 16 Stat. 437-438 (re-

pealed TS94)), to officers of either House ef Congress (Act

of Mar. 3, 1875, ch. 150, $8, 18 Stat. 401), to court officers

(Act of Aug. 25, 1916, ch. 399, 39 Stat. 532), to soldiers in

the military service (Act of Aug. 29, 1916, ch. 418, $3, Art.

117, 39 Stat. 669), to prohibition officers (National Prohibi-

tion Act of 1919, tit. I], ch. 85, § 28, 41 Stat. 316 (repealed

1M55)), and finally to “[ajny officer of the United States or

any agency thereof, or person acting under him” (Act of

June 25, 1948, ch. 646, § 1442, 62 Stat. 938). See generally

F. Frankfurter & J. Landis, The Business of the Supreme

Court 11.22, 61-69 (1928).

wm See, e.g. Olneu v. Arvold, 32 US. C3 Dall.) 308 (1796):

Otis V. Bacow, WU. (7 Cranch) 589 (1812): Crowell v.

Meador, V2 US. (8 Cranchy) 94 C1814); Meigs vo M'Cling’s

Lessee, 1 US. (9 Cranch) 11 C1815): Bott v. Swartewout,

33 tS. €10 Pet.) 927 (1836). See generally Final Be port of

the Altorwven Genecals Committers on Administrative Pro-

cedire, S. Doe. No. 8, T7th Cong., Ist Sess. 80-81 (1941):

Note, Developments in the Law — Remedies Aquinst the United

States avd (ls Officials, 7 Wary. L. Rev. 827, 840-842 (1957)

(diseuss:ng actions arainst government corporations): Gib-

bons, The Blecenth Ameudment and State Savereiaqn Im-

minty: A Rs interpretation, ®3 Colum. L. Rev. ISRO, 1943,

Pb & 0.206, POR novo (P98) (discussing actions against

government officers).

conduet carried out under color of office. See, ¢.9.,

i’vite States v. Lee, 106 U.S. 196, 210 (1882); ef.

Staoley y. Schwalhy, 147 U.S. 508, 512, 518 (1895).

The purpose of this practice was to cireumvent the

jectrine of sovereign immunity, which generally

avvel suits that named the United States or one of

'<s jnstrumenatalities as a defendant.”

By 1948. when the current version of Seetion 1442

was enneted, the leoal landseape had changed. Op-

oruni es now existed to sue federal agencies in

ate courte. sinee, by this time, numerous federal

seeneles and federally controlled corporations were

emnowere? “to sue and be sued,” often in either fed-

eral om state court.’ Congress’s use of “sue and

ins + Totted States, 305 U.S. 382, 887-

9 419 oda v. United States. 37 U.S. 524, 610-611

(1838): Bank of the United States V. Planters Bank, 22 U.S.

9 Vohest.) O04 C1824): ef. Olson V. United States Spruce

CT US. 162, 466-167 (1929): Sloan Shipyards

Ll, jted States Shipping Roard Emergency Fleet

SS 1S 419 (1999), Suits naming individual officers

le defeated ‘f the United States or an official who

et determ ped to be an indispensable party.

oF eeote V. United States, 3045 US. at 386-388;

byw! Fall. 266 US. 507, 510 (1929); Gis th Vv. Rutter,

~ > i) f ” eq) 1! mv Valle j Stocil: Co ¥.

&.» th 165 1S. 28, 34 (1897).

72. 72 619958) (Federal Crop Insurance

Corporation) ; 50 Stat. 888, 890 (1937) (U.S. Housing Au-

Stat. GOT, GO&X (Southeastern University); 50

‘ 1 art liome Corporation): 49 Stat. 684,

= (1995) (Federal Housing Adm nistrator); 48 Stat. 1246,

Ms] i ie Stat 58. 60 (1953) (Tennessee Valley Au

horitvy: 47 Stat. 725. 735 (1932) (Federal Home Loan

bank ) 17 Stat. 5. 6 (1932) (Reconstruction Finance Corpo-

ration ) Sire renerally Fy Oi i port (i? thie Aftto need (ye vie ral'’s

ass J . - : hay j :

ro, ae a (ihe Advn Ye fraviveé Proce di a. 4 Doc. No x. 77th

Cong.. lat Sess. 7-11 (1941): 1 K. Davis, Administrative Law

r ’ » (,;

let eet J 1.6 (2d ed. 1978).

he sued” provisions, in turn, contributed to a judi-

cial “climate of opinion which * * * brought gov-

ernmental immunity from suit into disfavor.” Ke/fe,

& Nester vy. Recoustruction Fin, Corp, 306 U.S. 381,

SUT C1959): see alse, CH. Reconstruction Fin. Corp.

\. IG. Menithan & Co., 312 U.S. 81 (1941): Federal

Housing Admin. vy. Burr, 309 U.S. 242, 246-250

(1940); Federal Land Bank vy. Priddy, 295 U.S.

229, 255 (1955).

Against this backdrop, it is not surprising that

the scope of Section 1442(aj(1) was expanded be-

yond officers of the United States to include “any

agency thereof’—a logical response to the increased

exposure of federal agencies to state court suits.

such an expansion was necessary, moreover, in light

of the historical purpose of Section 1442(a)(1). That

provision, like its “statutory forebears” (Vesa, 489

Vos. at 125), was “enacted to maintain the suprem-

acy of the laws of the United States.” Symes, 256

los. at o17. Thouvh originating in times of national

erises, each provision reflected the broader judgment

The primary ead result of these developments, as con-

corms litwaton challenging governmental conduct,

tment of the Administrative Procedure Act in 1946. Se

Vlorwed Gencrals Manual on the Administrative Proced

sre

tet D CD9GG). ut Congre alee responded to these eve

in the Judieial Code ¢ nacted two Vears later. Section i]

t rev ced Code added a comprehensive definition of +

nel “nce! ey” fi) )) 1? De of the Code. In acddit 4 t ~ gant

45 alded the werd “ageney” so that the provision, as

vised, granted federal courts original jurisdictior

or procecdings commenced by the United Stat

geen _ Vier thy ‘eof expr als “| +! ) gl ¢ 4

f a flected

near roof per uthor'zed t e, See 2S US i.

Revision Notes,

that “federal officers, and indeed the federal govern-

ment itselfs require the protection of a federal

forum.” Willingham, 395 U.S. at 407 (emphasis

added). Section 1442(a)(1) can only afford that

protection if it is construed—as a natural reading

of the text permits—to authorize removal by federal

agencies.

C. An Interpretation of Section 1442(a)(1) That Pre-

cluded Removal By Federal Agencies Would Pro-

duce Absurd Results and Should Therefore Be

Rejected

In deciding whether our reading or petitioners’

reading of Section 1442(a)(1) is to be preferred, it

is significant that petitioners’ reading would pro-

duce results squarely at odds with the purpose under-

lying that provision. See United States v. Brown, 333

U.S. 18, 27 (1948).

For example, petitioners’ interpretation would pre- |

clude removal in this case merely because petitioners

named NIH as a defendant rather than the individ-

uals against whom they sought and were granted

relief. Although petitioners named NIH as the only

federal defendant, they requested, and obtained, an

injunction against both NIH and its “agents, attor-

neys, and servants” (Pet. App. Al6). The injunction

thus restrained actions by officers and employees of

NIH “under color of * * * office’ (28 U.S.C. 1442

(a)(1)), and exposed these individuals to contempt

sanctions if they took the prohibited actions. Despite

its caption, therefore, petitioners’ suit was “[a] civil

action * * * commenced in a State court against

* * * officer[s] of the United States” (28 U.S.C.

1442(a)(1)). Congress surely did not intend re-

moval of this case to be precluded solely by virtue of

petitioners’ artful pleading.

Moreover, petitioners’ naming of NIH as defend-

ant was improper. The general rule is that an agency

cannot be sued in its own name absent congressional

authorization. Blackmar vy. Guerre, 342 U.S. 512,

514-515 (1952). Congress granted no such authority

here. In addition, petitioners’ state court action was

plainly barred by sovereign immunity. See, e..,

Dugan v. Rank, 372 U.S. 609 (1963). A waiver of

sovereign immunity in the Administrative Procedure

Act might apply to the activities of NIH, see 5 U.S.C.

702, but the waiver is expressly limited to actions

brought in fedcral court.** For these reasons, inter-

preting Section 1442(a)(1) to bar removal in this

and similar cases would reward plaintiffs for chal-

lenging actions of the federal government through

suits brought in the wrong court against the wrong

party. Such an absurd result tips sharply against

adopting such an interpretation.

The incongruous results that would flow from

such an interpretation are not limited to cases chal-

lenging agency activities that are immune from state

court review. There are numerous governmental

bodies—many of which are “agenc[ies]” as that term

is Cefined for purposes of Section 1442(a) (1), see 28

U.S.C. 451, supra note 12—whose operations may be

“3 See Aminoil, U.S.A., Inc. Vv. California State Water Re-

sources Control Bd., 674 F.2d 1227, 1233 (9th Cir. 1982)

(“[T]he waiver of sovereign immunity in section 702 is

expressly limited to actions brought ‘in a court of the United

States ....’ The legislative history demonstrates that section

702 was not intended to effect a waiver of sovereign immunity

for suits against the United States or its officers in state

courts. “The consent to suit is also limited to cla'ms in the

courts of the United States: hence, the United States re-

mains immune from suit in state courts.’ H.R. Rep. No. 94-

1656, 94th Cong., 2d Sess. 11 (1976).’’).

the subject of state court attack pursuant to “sue and

be sued” clauses. Some of-these clauses provide for

suits naming the agency, others for suits against the

head of the agency.*' Nothing in the text of these

various provisions suggests that Congress intcaded

to allow removal only with respect to suits of the

“4 See, ¢.g., 7 U.S.C. 942(b) (Rural Telephone Bank); 12

U.S.C. 1441(c) (8) (Federal Home Loan Bank Financing

Corporation) ; 12 U.S.C. 1702 (Secretary of HUD with re-

spect to certain statutory duties); 12 U.S.C. 2289(1) (Fed-

eral Financing Bank); 12 U.S.C. 3012(6) (National Con-

sumer Cooperative Bank); 15 U.S.C. 77dd (Corporation of

Foreign Security Holders) ; 15 U.S.C. 78ece(b) (1) (Securi-

ties Investor Protection Corporation) ; 15 U.S.C. 684 (b) (1)

(Administrator of Small Business Administration) ; 16 U.S.C.

648¢(b) (National Trust for Historic Preservation); 16

U.S.C. 8831e(b) (Tennessee Valley Authority) ; 19 U.S.C. 2350

(Secretary of Labor with respect to trade adjustment assist-

ance for firms) ; 20 U.S.C. 1132g@-1 (ce) (2) (Secretary of Edu-

cation with respect to housing amd educational facility loans) ;

20 U.S.C. 3225(d)(3) (National Trust for Drug-Free Youth) ;

20 U.S.C. 4414(a) (3) (Board of Institute of American Indian

and Alaska Native Culture and Arts Development) ; 22 U.S.C.

2199(d) (Overseas Private In» ment Corporation); 22

U.S.C. 4604(j) (United States Imst.tute for Peace) ; 25 U.S.C.

1496(a) (Secretary of Interior with respect to federal loan

guarantees and related insurance for Native Americans) ; 33

U.S.C. 984(a) (3) (St. Lawrence Seaway Development Cor-

poration): 3&8 U.S.C. 1820(a)(1) (Administrator of Vet-

erans’ Affairs with respect to housing and small business

loans); 42 U.S.C. 294h(a)(2) (Secretary of Health and

Human Services with respect to federally insured loans to

graduate students in health professions schools) ; 42 U.S.C.

1404a (Secretary of HUD with respect to low-income hous-

ing); 42 U.S.C. 8105(b) (4) (Neighborhood Reinvestment

Corporation) ; 45 U.S.C. 822(c) (5) (Secretary of Transpor-

tation with respect to Railroad Rehabilitation and Improve-

ment Fund).

latter type.** Nor would such a result be logical. As

in this case, state court suits for injunctive relief

under any of these sue-and-be-sued clauses would, if

successful, bind both the agencies and their officers.

Cf. Fed. R. Civ. P. 65(d).”

**In creating some governmental entities, Congress ex-

pressly provided for removal of actions against them. See,

e.g., 12 U.S.C. 632 (federal reserve banks) ; 12 U.S.C. 1452(e)

(Federal Home Loan Mortgage Corporation); 12 U.S.C.

1730(k) (Federal Savings and Loan Insurance Corporation) ;

12 U.S.C. 1789(a)(2) (National Credit Union Administra-

tion Board); 12 U.S.C. 1819 (Federal Deposit Insurance

Corporation) ; 12 U.S.C. 2277a-7(4)(B) (Farm Credit Sys-

tem Insurance Corporation) ; 12 U.S.C. 2278b-4(b) (Farm

Credit System Financial Assistance Corporation) ; 12 U.S.C.

2279aa-14(3) (Federal Agricultural Mortgage Corporation) ;

22 U.S.C. 282f (International Finance Corporation); 22

U.S.C. 283f (Inter-American Development Bank) ; 22 U.S.C.

283¢¢ (Inter-American investment Corporation) ; 22 U.S.C.

284f (International Development Association); 22 U.S.C.

285f (Asian Development Bank); 22 U.S.C. 286g (Interna-

tional Monetary Fund and International Bank for Recon-

struction and Development); 39 U.S.C. 401(1) (United

States Postal Service). Most of these entities are corpora-

tions or other entities with respect to which, in the absence

of a specific removal provision, doubt could arise as to whether

they were “agenc[ies]” for purposes of 28 U.S.C. 451, and so

entitled to invoke Section 1442(a)(1). See also 28 U.S.C.

1349 (regarding original jurisdiction over cases involving

government corporations).

“6 See also La. Code Civ. Proc. Ann. tit. 1 ch. 2, art. 3605

(West 1961) (injunction “shall be effective against the par-

ties restrained, their agents, employees, and counsel, and those

persons in active concert or participation with them”); Pettus

vy. Atehafalaua Wildtite Protective Society, 351 So. °d 790,

792 (La. Ct. App. 1977) (“An injunction [against] a corpo-

ration is a mandate to those responsible for the * * * corpora-

tion’s affairs.”’).

50)

There is a third category of cases in which inter-

preting Section 1442(a){1) to preclude removal by

federal agencies would produce absurd results. In

several major environmental statutes, Congress has,

under certain circumstances, waived the federal gov-

ernment’s sovereign immunity from state environ-

mental laws.*’ These provisions clearly contemplate

state court suits against federal “arenc[ies]” within

the meaning of Section 1442(a)(1). Many such suits

will no doubt allege exclusively state-law claims and

therefore fall outside the general removal provision,

28 U.S.C. 1441. Nonetheless, these suits will in-

variably raise important and sensitive issues regard-

ing, for example, the scepe of the waiver and the

extent to which state requirements have been pre-

empted. It is inconceivable that Congress intended to

confide the resolution of such issues largely to the

courts of the 50 States. Cf. NLRB vy. Nash-Finch

Co., 404 U.S. 138, 147 (1971) (‘For the Federal

Government and its agencies, the federal courts are

the forum of choice.”’).*°

27 Clean Water Act, 33 U.S.C. 1323(a); Safe Drinking

Water Act, 42 U.S.C. 300j-6; Clean Air Act, 42 U.S.C.

7418(a) ; Resource Conservation and Recovery Act, 42 U.S.C.

6961 (solid and hazardous wastes) ; 42 U.S.C. 6991f (under-

ground storage tanks); 42 U.S.C. 6992e (medical wastes) ;

and Comprehensive Environmental Response, Compensation

and Liability Act, 42 U.S.C. 9620.

“8 Only one of these environmental statutes’ waiver provi-

sions, the Clean Water Act’s, addresses removal:

Nothing in this section shall be construed to prevent any

department, agency, or instrumentality of the Federal

Government, or anv officer, agent, or employee thereof in

the performance of his official duties, from removing to

the appropriate Federal district court any proceeding to

which the department, agency, or instrumentality or offi-

Moreover, in two of these environmental statutes—

the Clean Air Act (42 U.S.C. 7418(a)) and the Clean

Water Act (33 U.S.C. 1323(a))—Congress expressly

subjected to state requirements not only every “de-

partment, agency, or instrumentality” of the federal

government but also every “officer, agent, or em-

ployee thereof.” If Section 1442(a)(1) were read

to preclude removal by federal agencies, the remov-

ability of most state court actions under these stat-

utes would rest exclusively in the hands of plaintiffs,

since they would have the choice of naming the agency

or its head.”

cer, agent or employee thereof is subject pursuant to this

section, and any such proceeding may be removed.in ac-

cordance with section 1441 et seq. of title 28. * * *

33 U.S.C. 1323 (a).

*° For example, in two recent cases, the Pennsylvania De-

partment of Environmental Resources (PADER) sued fed-

eral agencies alleging violations of the State’s environmental

laws. PADER vy. United States Dep’t of the Navy, Civ. No.

89-0545 (M.D. Pa. Aug. 29, 1989) (concerning cleanup of

hazardous waste at a Navy facility in Mechanicsburg, Penn-

sylvania); PADER vy. Small Business Administration, 579

A.2d 1001 (Pa. Commw. 1990) (concerning cleanup of

former wallpaper factory that SBA acquired in connec-

tion with a loan guarantee). Both cases presented impor-

tant issues as to the scope of the corresponding federal

waiver provisions and under the Supremacy Clause. Accord-

ingly, in each case the United States removed the action, only

to have it remanded to state court. PADER v. Navy, Civ. No.

89-0545 (order filed Aug. 29, 1989); PADER vy. SBA, Civ.

No. 89-3954 (order filed Jan. 19, 1990). After remand in

PADER Vv. Navy, the United States filed an action in federal

court for declaratory relief, alleging, as it had in the state

court proceeding, that the state court proceeding was barred

by sovereign immunity and under CERCLA. See United

States v. PADER, No. 90-5337 (3d Cir. Jan. 22, 1991), slip

In sum, interpreting Section 1442(a)(1) to au-

thorize removal only by federal officers would lead

to results that are “at war” with the purpose of the

statute. Cf. United States v. Campos-Serrano, 404

U.S. 293, 298 (1971). The results of such an inter-

pretation, moreover, would be far-ranging, affecting

every aspect of the government’s operation that is

carried out through federal agencies. Finally, such

an interpretation could significantly alter the bal-

ance of federal-state relations and contribute to di-

visiveness in those relations. For these reasons, that

interpretation should be rejected.

D. Interpreting Section 1442(a)(1) To Authorize Re-

moval By Federal Agencies Accords With This

Court’s Decisions Concerning Suits Against the

Federal Government

At bottom, the interpretation of Section 1442

(a) (1) championed by petitioners rests on a distine-

tion between actions by officers of an agency and

actions by the agency itself—a wholly artificial dis-

tinction in this context. As explained above, Con-

gress has eschewed such a distinction in certain stat-

utes prescribing the circumstances under which the

operation of the federal government can be judicially

challenged. This Court has likewise refused to draw

such a distinction where, as here, doing so would

clearly thwart congressional purpose.

In Loeffler v. Frank, 486 U.S. 549, 551 (1988),

the Court held that “prejudgment interest may be

op. 4-5. The Third Circuit reversed the district court’s

dismissal of the United States’ action, holding that the lower

court abused its discretion by according insufficient weight to

the United States’ “compelling interest in adjudicating its

sovereign immunity under federal statutes in a federal

forum.” Id. at 3.

awarded in a suit against the United States Postal

Service brought under Title VII of the Civil Rights

Act of 1964, * * * 42 U.S.C. 2000e et seg.” The Court.

based this holding on 39 U.S.C. 401(1), which em-

powers the Postal Service “to sue and be sued in its

official name.” See Loeffler, 486 U.S. at 554-558. The

Court rejected the argument that this provision did

not apply in Title VII suits, in which Congress re-

quired that “the head of the department, agency, or

unit * * * shall be the defendant” (42 U.S.C. 2000e-

16(c)) (emphasis added). 486 U.S. at 562 n.8. The

fact that the plaintiff properly named the head of

the Postal Service did not preclude him from enjoy-

ing the benefits of the provision authorizing suits

— the Postal Service “in its official name.”

In rejecting the distinction between suits against

an agency and suits against the head of the agency,

the Court in Loeffler relied on FHA y. Burr, 309

U.S. 242 (1940). In Burr, the Court interpreted the

“sue and be sued” clause applicable to the Adminis-

trator of the FHA to authorize garnishment of the

agency's assets. Id. at 249-250. Although Burr pre-

sented the “inverse situation” of that presented in

Loe ffler—i.e., the agency was the named defendant,

and the statute at issue referred to the agency head—

“the same logic applies. * * * [T]he acts of the

named defendant are always chargeable as acts of

the person or entity” subject to the statute. Loeffler,

486 U.S. at 563 n.8. -

A similar approach is warranted here. The Court

in Loeffler and Burr was guided by the principle that

the statute before it in each case was to be construed

broadly in light of its purpose. Loeffler, 486 U.S. at

996; Burr, 309 U.S. at 245. So too here, the purpose

of Section 1442(a)(1) to afford the federal govern-

ment the protection of a federal forum “should not

be frustrated by a narrow, grudging interpretation.”

Willingham, 395 U.S. at 407. As we have explained,

that purpose would clearly be thwarted by an inter-

pretation that made the availability of a federal

forum depend on whether the suit named the agency

or its officers. The distinction rejected in Loeffler

and Burr should also be rejected here.”

Il. PETITIONERS’ ARGUMENTS REGARDING RES

JUDICATA AND NIW’S INTEREST IN THIS CASE

ARE NOT BEFORE THIS COURT AND ARE IN

ANY EVENT WITHOUT MERIT

Petitioners advance two arguments that are unre-

lated to the question on which this Court granted re-

view and that are in any event without merit. They

argue first (Pet. Br. 17-19) that the issue of removal

in this case is res judicata and, second (Pet. Br. 19-

23), that the court of appeals below improperly held

% This approach also accords with that dictated by modern

pleading practice, as embodied in the Federal Rules of Civil

Procedure. The Rules recognize that suits against govern-

ment officials are, in reality, suits against the office. See Fed.

R. Civ. P. 25(d). Moreover, they authorize courts to look

beyond the pleadings when necessary to determine the real

parties in interest in the case and to require they be made a

part of the case. Fed. R. Civ. P. 17(a). The addition of the

real party in interest has “the same effect as if the action had

been commenced in the name of the real party in interest.”

Ibid. Applied here, these rules would justify the courts in

this and similar cases in treating the officers subject to the

relief sought as the real parties in interest and, on this basis,

upholding the removal of such cases. See Fed. R. Civ. P.

81(c) (Federal Rules of Civil Procedure apply to removed

cases).

that NIH had a sufficient interest in this case to

remove it.

A. The Fourth Circuit’s Decision In /PPL v. Institute

for Behavioral Research Does Not Preclude Litiga-

tion Of The Removal Issue In This Case

Petitioners contend (Pet. Br. 17-19) that litigation

of the removal issue in the present case is barred by

the Fourth Circuit’s decision in (PPL v. Institute for

Behavioral Research, 799 F.2d 934 (1986), cert.

denied, 481 U.S. 1004 (1987). While petitioners in-

voke the doctrine of res judicata, their contention—

that the issue of removal jurisdiction was implicitly

decided in 7/PPL—actually rests on the doctrine of

collateral estoppel, or issue preclusion. See Kremer

v. Chemical Construction Corp., 456 U.S. 461, 467

n.6 (1982). True res judicata, or claim preclusion,

does not apply in actions dismissed for lack of juris-

diction, for in such actions the merits of the claims

are not addressed. Hughes v. United States, 71 U.S.

(4 Wall.) 232, 237 (1866); 18 C. Wright, A. Miller

& E. Cooper, Federal Practice and Procedure § 4436

(1981). In any event, petitioners’ contention that

litigation of the removal issue in the present case is

precluded is incorrect.

The preclusive effect of a prior decision extends

only to issues that were “actually litigated and de-

termined” and “essential to [the prior] judgment.”

Cooper vy. Federal Reserve Bank, 467 U.S. 867, 874

(1984). Thus, a prior judgment deciding one issue

of jurisdiction does not preciude later litigation of a

different jurisdictional issue. See, e.y., GAF Corp.

v. United States, 818 F.2d 901, 913 (D.C. Cir. 1987):

Dozier v. Ford Motor Co., 702 F.2d 1189, 1191 (D.C.

Cir. 1983) (relitigation barred “at least to the extent

appellant seeks to base jurisdiction on [28 U.S.C.

1332].”"); Stewart Securities Corp. vy. Guaranty

Trust Co., 597 F.2d 240, 241 (10th Cir, 1979) (“the

doctrine of res julicata precludes a subsequent re-

litigation of the same jurisdictional issue between

the parties.”) (emphasis added).

The issue presented here—whether NIH could

remove a state court suit under Section 1442(a)—

was neither raised nor necessarily decided in 7PPL.

In IPPL, petitioners presented a federal claim as

well as state-law claims. The case was therefore re-

movable under 28 U.S.C. 1141, and NIH removed it

without opposition. 799 F.2d at 937. Neither party

raised the issue of removal under Section 1442, and

the court of appeals did not discuss it. Rather, after

dismissing petitioners’ federal claim, the court merely

declined to exercise pendent jurisdiction over the state

law claims on the ground that “state claims should

usually be dismissed if the federal claims have been

dismissed before trial.” Jd. at 941 (citing United

Mine Workers of America vy. Gibbs, 383 U.S. 715, 726

(1966)). The Fourth Circuit's decision to deny pend-

ent jurisdiction cannot reasonably be interpreted as

an implicit ruling on an entirely separate issue of

removal jurisdiction that was not presented to the

court.

BR. NIH Had A Sufficient Interest In This Case To Re-

move It

Petitioners contend that NIH's interest in this case

was too attenuated for it to remove this case. But

petitioners do not dispute that this suit was “com-

menced against” NIH for purposes of Section 1442

(a}(1). Nor do they dispute that NIH alleged fed-

eral defenses that satisfied the “under color of * * *

office” requirement of that provision. See Mesa, 489

U.S. at 129-134. ‘Thus, the legal basis for petitioners’

view that something more is required to invoke Sec-

tion 1442(a)(1) is obscure; they cite no statutory

provision or case law to support this view. In any

event, NIH plainly has a substantial interest in this

case.

Petitioners’ own conduct in this case defeats their

contention that NIH’s interest in this case is insuffi-

cient. They voluntarily named NIH as a defendant

in this case. They devoted their complaint to allega-

tions of misconduct by NIH with regard to the care

and custody of the monkeys. They repeat these alle-

gations in the statement section of their brief to this

Court. Finally, they have sought injunctive relief

directly against NIH, its employees, and its agents.

In addition, NIH’s interest in this case is clear

from its statutory mandate. 42 U.S.C. 281-284e,

289-290a. The research by IBR that sparked the

present controversy was “research * * * supported by

[NIH]” (42 U.S.C. 241, 282(b)(3)) that must com-

ply with regulations and guidelines promulgated by

the Director of NIH governing, among other things,

the care and custody of research animals (42 U.S.C.

289-289b, 2891). The planned euthanasia that peti-

tioners have sought to enjoin likewise is subject to

these guidelines and is designed to provide the type

of scientific information that NIH was created to

foster. NIH clearly has a vital interest in any suit

that, like this one, seeks to prevent it from carrying

out its statutory mission.”

*! For this reason, petitioners’ fact-bound contentions re-

garding which respondent had physical custody of the mon-

keys at various stages of this litigation are irrelevant. In

any event, there was ample evidence in the record before the

district establishing that NIH, at considerable expense, acted

CONCLUSION

The judgment of the court of appeals should be

affirmed. |

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor General

BARBARA L. HERWIG

MATTHEW M. COLLETTE

Attorneys

FEBRUARY 1991

as primary custodian of the monkeys after the monkeys were

transferred to NIH in late 1981. See NIH App. la, 2a; IBR

App. 6a.

ww wv. s&s. GOVERNMENT PRINTING OFFICE, 1991 26206! 20372

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.