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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0009%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 72

## Text

Ranubicues

‘
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

ee

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-
Se

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

10

10

21

26

32

34

35

36
38

IV
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

v

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
aac erittnesahtaataidet siaencnsiiobiedh
LE Le | | | oS Ee —_

Safe Drinking Water Act, 42 U.S.C. 300j-6 .. ......
Sherman Act, § 7, 15 U.S.C. 7 0000.0 occ. cates
a a SAR an
EITC a ee ae
RRR SEE TS EC a eer
EES ES Se ae ee ee
48 Stat.58 Fh Se ee PE eee ere
eo RE enone eae Ne aeerEa

TERE SNR REE A MEER EI sii
SE SERRE RR Sap ere tonne oe
EER aa pareearen a Uae er
SESS NEA alec moteineisiiien

a seniesihiiniddthintaatideedine bionlbibineeae icciciabeinduianions
Ea ait dieenali sea
12 U.S.C. 1441 (c) (8) 00. sateaisiunibactiamaientitii
I a .
, a shaeteabibeeineidainedinalamaditaais
EERE RR cn CPS OS AN OR
RSE ENS a
ES Ee SO
TS ee eee ae
12 U.S.C. 2278b-4(b) 0... soshianeininmninininiieatinbainsint
eS | | |) ae

Page

30

Ix

17

Statutes and rule—Continued: Page
EET er ean ee ner 28
SESE Re Ne ae ae 28
EE AEE Os a cs 28
ee a 28
EEE Me 28
I eeioie 28
I sneeeeniel Z 28
I esis 28
oe 28
a 28
I 28
22 U.S.C. 262f ......... Ss AE ee 29
ERE ARS a I ROO: AARC Re ee 29
SE Ee aiCaeeer 29
EL A US eee : 29
AE Ee Se aoe 29
Ee eee
I ll aire Ae 28
Ce 28
Te ERS LL tals 28
EEA EIU coe Dt Aer aor | 21
RE SRO ES 11, 18, 27, 29
|) | Ser Sane ed 5
8 NE ee i I ee 19

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

x
Statutes and rule—Continued : Page
i 11
ia Oe 37
EERSTE ARENA un nae mane meee 11
ES TR ACen R eee ea PRED 12
I os eeseeireasenenntinenionne 37
I 37
ER morn 37
ESTEE ORS eS RE AR Te 28
Si 28
i 13
42 U.S.C. 0000-16 (ce) ..............-.......cccnscceeee..e..eeeeceeees 33
ERTS Ss ae anne wee eee ree 80
SS ene Deane PRM as ee ee 30
EE a a een ee re 31
SS aaa 28
I nin ciciccccccnucssaceciecreracensssessisonensces 28

La. Code Civ. Proc. Ann. art. 3605 (West 1961)... 29
Fed. R. Civ. P.:

i 14
ER aE NI LTR ee LS 34
EEE ESI aD TIRED OTE ee 34
ESE e re raas BP ROC ENON SanEnE OTT WLT Leer e 5, 29
I 29
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) :

21

20
35

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)

2

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

3

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.

4

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

= = 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).

25

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,

26

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.

27

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).’’).

28

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).

29

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-

31

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

32

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.

33

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

34

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).

35

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

37

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

38

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0009%3A09. Public record. Not legal advice.