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

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FILED

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94 381 AUG 30 19%

No. __ce-pE THE CLERK

In The

Supreme Court of the United States

October Term, 1994

°

INTERNATIONAL PRIMATE PROTECTION LEAGUE

AND ITS MEMBERS, PEOPLE FOR THE

ETHICAL TREATMENT OF ANIMALS AND ITS

MEMBERS, ALEX PACHECO, AND LOUISIANA

IN SUPPORT OF ANIMALS AND ITS MEMBERS

Petitioners

versus

ADMINISTRATORS OF TULANE EDUCATIONAL FUND,

NATIONAL INSTITUTES OF HEALTH AND THE

INSTITUTES FOR BEHAVIOR RESOURCES, INC.

Respondents

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

2

PETITION FOR A WRIT OF CERTIORARI

¢

Marcaret E. WoopwarpD

BAR NO. 13677

610 Poydras Street, Suite 318

New Orleans, Louisiana 70130

Telephone: (504) 525-9538

Counsel for Petitioners,

International Primate Protection

League and its Members, People

for the Ethical Treatment of

Animals and its Members, Alex

Pacheco, and Louisiana in Support

of Animals and its Members

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

A

ad

a

QUESTIONS PRESENTED FOR REVIEW

1. In a § 1442(a)(1) removal case, may a federal court

require the plaintiffs to meet Article III’s standing

requirements with respect to the state-law claims over

which the federal court exercises pendent jurisdic-

tion, or should state standing law apply?

a. Is satisfaction of Article III’s standing require-

ments a jurisdictional necessity in a § 1442(a)(1)

case?

b. Does the law of the case doctrine allow the circuit

court to adhere to its earlier decision, disregard-

ing the undecided, preliminary, and “open” ques-

tion posed by this Court in the interim?

2. Did the Fifth Circuit properly uphold the removal of

this action by Tulane University, allegedly a “person

acting under [a federal officer],” the National Insti-

tutes of Health (“NIH”), under 28 U.S.C. § 1442(a)(1)?

a. Is the definition of “person” in § 1442(a)(1)

restricted to natural persons or can it extend to an

institutional defendant, as the Fifth Circuit ruled?

b. Asa matter of law, is it possible to “act under” an

officer who lacks ultimate authority over the acts

in question?

c. Must the federal officer under whom the “per-

son” acted be a natural person, or can “he” be an

agency — or even a conglomerate of agencies — as

the Fifth Circuit found?

< PESO e Ee OED Dae REM ENE OC EF , a

EE ge ee RN Oe Oe ee LO Se Bele ES Sf ee eS eee eee

ii

LIST OF PARTIES

International Primate Protection League and Its Mem-

bers — Petitioners

People for the Ethical Treatment of Animals and Its

Members - Petitioners

Alex Pacheco - Petitioner

Louisiana in Support of Animals and Its Members -

Petitioners

Administrators of Tulane Educational Fund — Respon-

dent

National Institutes of Health - Respondent

Institutes for Behavior Resources, Inc. — Respondent

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

ERE Ge PARE vec cc ccccceyureccrvecevccececeers ii

yy 3 Ge Bao |) yy 5. Free ree iii

TABLE OF AUTHORITIES ..........ccccceccecceces Vv

CPTI IY IY ikon ccccccccccccccccnestecees 2

STATEMENT OF JURISDICTION............-+--0- 2

SERGE SERENE obs eke cc ctsscccciccsccevers 2

STATEMENT OF THE CASE............00--eeeeeee 3

REASONS FOR GRANTING THE WRIT ........... 6

I. PETITIONERS WERE IMPROPERLY REQUIRED

TO MEET ARTICLE III’s STANDING REQUIRE-

MENTS WITH RESPECT TO THEIR STATE LAW

i IO ey reer rer PrP rrr ere or 6

A. The objectives of § 1442(a)(1) are disserved

by the application of Article III standing

requirements .........-----seeeeseereceeees 6

B. The law of the case rule was inapplicable

SS SESE MO REC He rep rrr ee Poy ee re eae 12

Il. THE FIFTH CIRCUIT’S RULING THAT

TULANE’S REMOVAL OF THIS ACTION WAS

PROPER EXPANDS THE DEFINITION OF 28

U.S.C. § 1442(a)(1) IN A MANNER THAT CON-

FLICTS WITH THE STATUTE’S INTERPRETA-

TION BY THIS COURT AND BY LOWER

COURTS IN OTHER CIRCUITS .............-. 15

A. Only natural persons should be entitled to

remove under § 1442(a)(1) ...........-.--- 15

iv

TABLE OF CONTENTS - Continued

Page

B. As a matter of law, a person cannot “act

under” a federal officer who lacks ultimate

COMMIS i iva ca won cs ns eek ik Cee eee es 20 :

a

C. § 1442(a)(1) requires that one “acting under” i

an officer acts under an individual........ 26

COG a i as i A I a ee 28

REPO bad bere se Ci eRe A-1

A. Decision of the Fifth Circuit Court of Appeals,

nn: Mee, ERE EOE Eee Pe eee TT ETT A-1

B. Judgment of District Court, November 3, 1992.. A-5

C. Reasons for District Court Judgment......... A-6

D. Fifth Circuit Denial of Petition for Rehearing,

ES: BIG B55 6a bie CERIN AGI CERES A-13

eee

i ve i ST pores aut

FC ae ae

Vv

TABLE OF AUTHORITIES

Page

CAsES

Arizona v. Manypenny, 451 U.S. 232 (1981)....... 9, 10, 11

Asarco Inc. v. Kadish, 490 U.S. 605, 109 S.Ct. 2037

(1GBO) oi nc Fa Ge esas eed ae ee neuinseneer ne dicdede 8

Bakalis v. Crossland Savings Bank, 781 F. Supp. 140

(E.D.N.Y, 1991) occ cc cicccceccccauscsccesenccs 19, 20

Bahrs v. Hughes Aircraft Co., 795 F. Supp. 965 (D.

yy. Me, . Pee ey reer eT T ery OT oT erage Ler ere 19

California v. LaRue, 409 U.S. 109, 93 S.Ct. 390 (1972) .... 23

Falcon v. General Telephone Co., 815 F.2d 317 (5th

Che, TOOT iss 055 kes cae ed cdage MES ees 13, 14

Fung v. Avex Corp., 816 F. Supp. 569 (N.D. Cal.

TOGA iid is cb5 6% 5 ae ie om nas 6 ainda Ode CNSR CONES 19

NON ok tek ca cans cha cdaces (a0 «mane sdenertss 12

Insurance Corp. of Ire. v. Compagnie des Bauxites, 456

U.S. 694, 102 S.Ct. 2099 (1982) ......-- cece reer eees 23

International Primate Protection League v., Adminis-

trators of Tulane Educational Fund (“IPPL”). 500

U.S. 72, 141 S.Ct. 1700 (IGF) 06 as cscceceveces passim

Johnson v. Bd. of Education of Chicago, 457 U.S. 52,

102 S.C. 2229: (19G2) occ vn cccccccccecveeccsievecess 13

Key v. Wise, 629 F.2d 1049 (5th Cir. 1980).........--. 14

vi

TABLE OF AUTHORITIES - Continued

Page

Krangel v. Crown, 791 F. Supp. 1436 (S.D. Ca. 1992) 19, 21

Larson v. Domestic & Foreign Commerce Corp., 337

US. 662, GD S.Ct. 1G OG oon ie ieee cciieetes 24

Maine Assn. of Interdependent Neighborhoods, v.

Commissioner, Maine Dept. of Human Services, 876

eB a Bat Me PURTES CP PTCN TELE TY tie eee 8

Mesa v. California, 489 U.S. 121, 109 S.Ct. 959 (1989)

Chek vhkee chee kkebap ck eabuee oe caeee 6. 3, 9, 17, 23

Mignona v. Sair Aviation, 937 F.2d 37 (2d Cir. 1991) .... 19

Nunley v. M/V Dauntless Colocotronis, 863 F.2d 1190

OR GR, BOGE) 6a i cad kupisdcaperseTevacensesvass 14

Pack v. AC&S, Inc., 838 F. Supp. 1099 (D.Md. 1993) .... 19

Pegues v. Morehouse Parish School Bd., 706 F.2d 735

COU: GE. Tins on kinen ca dekasaadedoens ce casa te ves 14

Pfizer Inc. v. India, 434 U.S. 308 (1978) .............. 17

Pickens v. Okolona Municipal Separate School Dis-

trict, 394 ROG GIO Cae e Is ii siewisn deine dacs eve 14

Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139 (1979).... 14

Ryan v. Dow Chemical, 781 F. Supp. 934 (E.D.N.Y.

SUPER <n:6: +s phanncdankbied saa 19, 20

Vii

TABLE OF AUTHORITIES ~ Continued

Page

Thermtron Products, Inc. v., Hermansdorfer, 423 US.

500, FO SEA: SOG III heb ive cetececeivverektincé: 20

U. S. v. Simmons, 923 F.2d 934 (2d Cir.) cert. denied,

coin WD ce GER ee RE ED 8 Sa Sao ei ckncens 13

Willingham v. Morgan, 395 U.S. 401, 89 S.Ct. 1813

COPE oa 5 Siew aa nubs oR eek bs caceeed én edie 9, 17, 23

CONSTITUTION AND STATUTES

po Re SR pe. Yep r rere errr sn ye er rr passim

De as cok soe oda chcee ce dcepurssareaaenss 16

Fee reo bas 0ck de aed o8se es teamewiegnen 10

Fee ID Gy on svvced nse vcescsececesssed exe 10

eR ie iiie eek civ ced Jtadceusucensrwets 2

a obo oot bs 0 piv od knoe cdncawenecukhs 8

Be Be ID sy ono v a bn Sens bvccesaccsiea passim

ee OCTET Cee CREP ER SUT TCE Ore 20

Act of 1911, Ch. 231, § 33, 36 Stat. 1097 ............ 18

pe Be i ee RP a eer 18

Act of February 4, 1815, Ch. 31, § 8, 3 Stat. 198..... 17

Act of March 2, 1833, Ch. 57, § 3, 4 Stat. 633....... 18

Vili

TABLE OF AUTHORITIES - Continued

Sh Aiea e care cc ce hei dbs Ces oer ak Crd ee 18

Act of June 25, 1948, Ch. 646, § 1442, 62 Stat. 938 ....17

OTHER AUTHORITIES

H.R. Rep. No. 308, 80th Cong., 1st Sess. A134

bof PRES SATS OP) See ee Pree Serre rie 18

Wright, et al., 13A Federal Practice and Procedure:

a 2 a eee ee 11, 12

No.

0 re ee

6

In The

Supreme Court of the United States

October Term, 1994

¢

INTERNATIONAL PRIMATE PROTECTION LEAGUE

AND ITS MEMBERS, PEOPLE FOR THE

ETHICAL TREATMENT OF ANIMALS AND ITS

MEMBERS, ALEX PACHECO, AND LOUISIANA

IN SUPPORT OF ANIMALS AND ITS MEMBERS

Petitioners

versus

ADMINISTRATORS OF TULANE EDUCATIONAL FUND,

NATIONAL INSTITUTES OF HEALTH AND THE

INSTITUTES FOR BEHAVIOR RESOURCES, INC.

Respondents

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

+

PETITION FOR A WRIT OF CERTIORARI

4

The Petitioners, International Primate Protection

League and its members, People for the Ethical Treatment

of Animals and its members, Alex Pacheco, and Louisiana

in Support of Animals and its members, respectfully pray

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

1

Fifth Circuit, entered in the above-entitled proceeding on

May 9, 1994.

OPINION BELOW

The per curiam opinion of the United States Court of

Appeals for the Fifth Circuit in International Primate Pro-

tection League v. Administrators of Tulane Educational Fund,

et al., rendered on May 9, 1994, is set forth in the Appen-

dix at A-1 through 4. Pursuant to Rule 47.5 of the Local

Rules of the Fifth Circuit Court of Appeals, the court

determined that its opinion should not be published.

¢

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

on May 9, 1994 (A-1). The order denying a petition for

rehearing and suggestion for rehearing en banc was

entered on June 9, 1994 (A-13). This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

¢

STATUTE INVOLVED

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

(a) A civil action or criminal prosecution com-

menced in a state court against any of the fol-

lowing persons may be removed by them...

(1) any officer of the United States or any

agency thereof, or person acting under him,

for any act under color of such office or on

4 . wt <r eens te eae te at a J ene sands bee Bis Sores ok een od

els Pee ees PS ee PR TT Le Pe Ee ee eee y LPM phi) SW pa Loe Lene ee tee Sa eT ee ake PAR! Pe Te peat

account of any right, title or authority

claimed under any act of Congress for the

apprehension or punishment of criminals or

the collection of the revenue.

+

STATEMENT OF THE CASE

Petitioners, organizations and individuals seeking

the humane treatment of animals, brought this action to

halt fraudulent experimentation on and the unnecessary

killing of a group of macaque monkeys who have become

popularly known as “the Silver Spring Monkeys.” The

animals are owned by the Institutes for Behavior

Resources, Inc. (“IBR”), which subjected them to experi-

mentation under a grant funded by the National Insti-

tutes of Health (“NIH”). A 1981 police raid on IBR’s

laboratory exposed cruelty to the animals that resulted in

a criminal prosecution of the experimenter Dr. Taub, and

the termination of NIH’s grant to IBR. NIH took custody

of the monkeys with the consent of IBR, which retained

ownership. Amid mounting pressure for the monkeys’

release to a sanctuary, in 1986 NIH secretly transferred

them, with IBR’s consent, to the Tulane Primate Research

Center, which, in its own words, offered a “rural loca-

tion” at “a private university . . . located in the conserva-

tive south, where the animal rights movement is not

strong.” In order to put an end to the controversy sur-

rounding the monkeys, the biomedical community

planned, with IBR’s consent, to kill them under cover of a

lethal experiment. Dr. Mishkin, an employee of the

National Institute of Mental Health (“NIMH”), and a

colleague and ardent defender of the criminally-pros-

ecuted Dr. Taub, designed the experiment at his home,

over a weekend. When plans to implement the experi-

ment were made public, some of the nation’s foremost

scientists decried it as a scientific fraud, but the experi-

menters were not deterred, as their principal objectives

were political, not scientific.

Availing themselves of strong remedies provided by

Louisiana lew to protect against cruelty towards animals,

in 1988 Petitioners filed suit in the Civil District Court for

the Parish of Orleans, seeking injunctive relief and dam-

ages. Named as defendants were IBR, Tulane, and NIH.

The state court immediately issued a temporary restrain-

ing order blocking the killing of the animals.

_— NIH removed the case to federal court under the

federal officer removal statute, 28 U.S.C. § 1442(a)(1), and

the federal district court continued the TRO in effect. An

appeal was taken to the Fifth Circuit, which upheld

NIH’s removal and found, applying Article III standing

guidelines, that Petitioners lacked standing; the case was

ordered to be dismissed. 895 F.2d 1056 (5th Cir. 1990).

This Court granted a writ of certiorari, restricting its

review to the question whether § 1442(a)(1) permits

removal by federal agencies such as NIH. Concluding

that it did not, the Court ordered the case remanded to

state court. International Primate Protection League v.

Administrators of Tulane Educational Fund, 500 U.S. 72, 111

S.Ct. 1700 (1991). On remand, defendant Tulane filed a

second removal petition, claiming to be a “person acting

under” a federal officer within the meaning of

§ 1442(a)(1). On November 2, 1992, the district court

upheld the removal, concluding, on the strength of the

defendants’ submissions of fact, that Tulane was a “per-

son acting under” the Director of NIH. Relying on the

Fifth Circuit’s earlier holding that Petitioners lacked Arti-

cle II] standing, the court entered summary judgment

dismissing the case. (A-5, A-6 ff.).

Affirming the decision below, the Fifth Circuit

upheld Tulane’s removal, but recognizing the dearth of

factual support for a conclusion that Tulane had acted

under NIH’s director, the court found that Tulane was a

“person acting under” NIH, the agency. (A-2-3). The Fifth

Circuit also affirmed the ruling that Petitioners could not

satisfy Article III’s requirements for standing. (A-4). Like

the district court, it relied upon its 1990 holding on stand-

ing as the law of the case, thereby sidestepping the ques-

tion expressly raised by this Court in its intervening

decision: “whether a federal court in a § 1442(a)(1)

removal case may require plaintiffs to meet Article III’s

standing requirements with respect to the state law

claims over which the federal court exercises pendent

jurisdiction.” 500 U.S. at 78, n. 4, 111 S.Ct. at 1775, n. 4.

Petitioners return to this Court seeking an answer to

this important open question, and challenging the propri-

ety of Tulane’s § 1442(a)(1) removal of the action.

+

Sg a ee eee ee) ee eS ee ne it ee A Nae ae Ser) ee ke eee Or a4 PN Na f tee a ee ee ee tae ea Feo ee ee

REASONS FOR GRANTING THE WRIT

I. PETITIONERS WERE IMPROPERLY REQUIRED

TO MEET ARTICLE III’s STANDING REQUIRE-

MENTS WITH RESPECT TO THEIR STATE LAW

CLAIMS

A. The objectives of § 1442(a)(1) are disserved by

the application of Article III standing require-

ments

The purpose of 28 U.S.C. § 1442(a)(1) is to provide a

federal forum for the adjudication of federal defenses.

Willingham v. Morgan, 395 U.S. 402, 409 (1968). A federal

defense must be asserted, because it is the federal offi-

cer’s substantive defense that ‘arises under’ federal law

and provides the Article III basis for removal jurisdiction.

Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 968 (1989).

In this case, the asserted federal defense is sovereign

immunity. In the six year life of this litigation, however,

the merits of the federal defense have never been reached

by any court because Petitioners’ claims have repeatedly

been dismissed for want of Article III standing. From the

outset, Petitioners have protested the impropriety of

applying Article III standing requirements to their state-

law claims, and the injustice of a dismissal by the federal

courts without any adjudication of the alleged federal

defense that provided the sole basis for federal jurisdic-

tion.

This argument concerning the misapplication of Arti-

cle III standing requirements to Petitioners’ claims was

completely disregarded by the federal courts until this

Court declared in a footnote:

Our grant of certiorari did not extend to the

Court of Appeals’ determination that Petitioners

lack standing to protect the monkeys. We there-

fore leave open the question whether a federal

court in a § 1442(a)(1) removal case may require

Petitioners to meet Article III’s standing require-

ments with respect to the state-law claims over

which the federal court exercises pendent juris-

diction. See Mesa v. California, 489 U.S. 121, 136

(1989) (basis for removal jurisdiction under

§ 1442(a)(1) is the federal officer’s substantive

defense that “arises under” federal law). See

also Arizona v. Manypenny, 451 U.S. 232, 242

(1981) (“[I]nvocation of removal jurisdiction by

a federal officer . . . is a purely derivative form

of jurisdiction, neither enlarging nor coritracting

the rights of the parties” (footnote omitted)); Id.,

at 242, n. 17, 101 S.Ct. at 1665, n. 17 (“This

principle of derivative jurisdiction is instructive

where, as here, relevant state- court jurisdiction

is found to exist and the question is whether the

federal court in effect loses such jurisdiction as a

result of removal”).

500 U.S. at 78-79, n.4, 111 S.Ct. at 1705, n.4.

Defendants treated Petitioners’ argument for the

application of state standing guidelines as an effort to

undermine the constitution. The district court agreed,

stating that

standing to sue in any Article III court is a

federal question which does not depend on the

party’s prior standing in state court.

(A-9-10; citation omitted).

Petitioners pointed out that because this was already

an Article III case by virtue of the federal defense, dis-

pensing with Article III’s standing requirements would

have no jurisdictional consequence. Since Tennessee v.

Davis, it has been recognized that the Article III basis for

removal jurisdiction is the federal officer’s substantive

defense that ‘arises under’ federal law. Mesa v. California,

489 U.S. 121, 136, 109 S.Ct. 959, 968 (1989). Thus in the

present case, it is not Petitioners’ claims but the assertion

of federal defenses that establishes the Article III jurisdic-

tion of the federal courts (if it exists). Once the nature of

the Article III “case” is understood, the inapplicability of

Article III standing requirements becomes abundantly

apparent. The insistence that Petitioners satisfy the Arti-

cle III requirements for a “case or controversy” overlooks

the quite fundamental absence of any federal claim.’ It

makes no more sense to apply federal standing doctrine

to Petitioners’ state law claims than it would to require

that they assert a federal claim, name the United States as

a party, or establish diversity of citizenship in order to

comply with the requirements of Article III. Petitioners

have not brought an Article III case; defendants have.

Petitioners cannot logically be required to establish

Article III standing to pursue what are not Article III

claims. In Asarco Inc. v. Kadish, 490 U.S. 605, 109 §.Ct.

1 By contrast, in Maine Assn. of Interdependent Neighborhoods

v. Commissioner, Maine Dept. of Human Services, 876 F.2d 1051 (1st

Cir. 1989), the case was removed to federal court under § 1441(b)

(original jurisdiction removal), and constitutional standing

requirements were applied. IPPL noted that the application was

appropriate in M.A.I.N. because of the § 1441(b) jurisdictional

base. 500 U.S. at 88, n. 9, 111 S.Ct. at 1710, n. 9.

2037 (1989), the Court found that the plaintiffs’ lack of

Article III standing in an action prosecuted in state court

under a federal statute did not prevent the review, on a

writ of certiorari filed by the defendants, of a federal

question. That federal question, said the Court, presented

a justiciable case or controversy, and the plaintiffs’ lack of

Article III standing did not alter that fact because the

plaintiffs were “not the party attempting to invoke the

federal judicial power.” 490 U.S. at 618. The same princi-

ple applies here.

The imposition of Article III requirements on state-

law claims would not only fail to satisfy any jurisdic-

tional necessity, it would also fail to serve any other

federal purpose. As noted above, the purpose of the

removal statute is to provide a federal forum for the

adjudication of federal defenses. Willingham v. Morgan,

supra. That purpose would not be furthered by the appli-

cation of federal standing law, a defense this Court has

explicitly said the removal statute has no concern for

protecting. IPPL, 500 U.S. at 86, n. 7, 111 S.Ct. at 1709, n.7.

Beyond the provision of a federal forum, the removal

statute has no interest in displacing the rights of the

states. Tennessee v. Davis, 100 U.S. at 271, early established

that state substantive law would apply in removed

actions, and the Court later emphasized that removal

jurisdiction is “purely derivative . . . , neither enlarging or

contracting the rights of the parties.” Mesa v. California,

489 U.S. at 136, 109 S.Ct. at 968; Arizona v. Manypenny; 451

U.S. 232, 247, 101 S.Ct. 1657, 1664 (1981).

The application of Article III’s more rigorous stand-

ing requirements, resulting in the dismissal of Petitioners’

10

claim, has not only severely contracted their rights but

also has thwarted the enforcement of Louisiana’s policies

and laws on the humane treatment of animals — an area

the federal government has specifically consigned to state

regulation. Louisiana law, which does not burden those

asserting claims of animal cruelty with the requirements

imposed by the courts below, was rewritten into oblivion

by the removal of this case. As this Court has frequently

observed, the constraints of Article III do not apply to

state courts, see Asarco Inc. v. Kadish, supra; and Louisiana

has fashioned a far more liberal standing policy than that

obtaining in the federal courts. The supplanting of state

standing law by federal law in the analysis of state law

claims does violence to the objectives of § 1442(a), which

was designed to provide a federal forum for a iederal

defense that has never been reached in this case.

This Court’s citation of Arizona v. Manypenny in its

“open question” footnote strongly suggested that Article

III standing requirements should not be applied to Peti-

tioners’ state law claims. In Manypenny, a federal officer’s

assault prosecution was removed to federal court under

§ 1442(a). The officer was acquitted and the state sought

to appeal, a right under Arizona law that was not

accorded by federal law. In determining whether to allow

the appeal, the Court reviewed the historical purpose of

§ 1442 to ensure a federal forum for a federal officer’s

2 In enacting the Animal Welfare Act, 7 U.S.C. § 2116 et seq.,

Congress acknowledged that it was taking only “a very small

first step toward the elimination of cruelty, mistreatment, and

abuse of laboratory animals,” 112 Cong. Rec. 19, 785 (1966) and

invited the states to fill the gap. 7 U.S.C. § 2143(a)(8).

11

federal defenses. Federal jurisdiction under § 1442 is

derivative, the Court found, and a state proceeding does

not “arise under federal law” in the sense that it pre-

empts state law. Rather, federal procedural law is applied

without “revis[ing] or alter[ing] the underlying [state]

law to be applied.” Id. at 241-242. “This principle of

derivative jurisdiction is instructive” said the Court,

“where, as here, relevant state-court jurisdiction [over the

appeal] is found to exist and the question is whether the

federal court in effect loses such jurisdiction as a result of

removal.” Id. at 242 n.17. Because the policies supporting

removal were fully vindicated by the provision of a fed-

eral forum, there was no need for further interference in

state law by restricting rights the parties would have

enjoyed under state law. Accordingly, the Court upheld

the state’s right of appeal.

To cite the “instructive . . . principle of derivative

jurisdiction” from Manypenny on the analogous question

of the applicable standing requirements after removal

was perhaps to provide the answer. See IPPL, 111 S.Ct. at

1705 n.4. Just as in Manypenny, it may be said here that

“relevant state-court jurisdiction is found to exist and the

question is whether the federal court in effect loses such

jurisdiction as a result of removal.” Because federal juris-

diction here is derivative, does not arise under state law

in the sense that it preempts state law, and is not meant to

enlarge or contract the rights of the parties, it cannot

apply to deprive the Petitioners of a forum for their

claims under Art. III standing requirements, with whose

protection the removal statute “is not concerned.”

For this reason, Wright, et al. have opined that where

questions of state law are presented to federal courts,

12

state standing law applies. 13A Federal Practice and Pro-

cedure: Jurisdiction 2d § 3531.14 at 84. See also, Ferency v.

Austin, 493 F. Supp. 683,690 (W.D. Mich. 1980).

If Tulane is entitled to remove at all, which is doubt-

ful, the objective of § 1442(a)(1) will have been fully

realized by the provision of a federal forum for the

alleged federal defenses. Further application of Article III

standing requirements would enforce federal interests

not entitled to protection, in violation of the derivative

nature of removal jurisdiction under § 1442(a)(1) and in

improper abrogation of state policies at work here.

Because § 1442(a)(1) is not designed to enlarge or contract

the rights of the parties, the application of federal stand-

ing requirements, resulting in a dismissal of Petitioners’

claims without any adjudication of defendants’ federal

defenses, was a perversion of the statute’s intent and an

improper exercise of federal jurisdiction in derogation of

Louisiana law. |

B. The law of the case rule was inapplicable here

The “open question” posed by this Court has not

been answered. The district court bypassed it, ruling that

it “[could] not ignore the fact that the Fifth Circuit has

already decided in this very case . . . that these Petitioners

do not meet the constitutional requirements for stand-

ing ...” (A-10). Tearing a page from the same book, the

Fifth Circuit ruled that it was “bound by [its] previous

holding under the ‘law of the case’ doctrine.” (A-4).

Accordingly, the court found that Petitioners lack stand-

ing and that their suit was properly dismissed. Id.

13

The application of the law of the case doctrine was

improper for several reasons. First, the Fifth Circuit’s

earlier decision was reversed by this Court, and therefore

should not have been given precedential value. It is

beyond cavil that “to vacate a judgment is to take away

from it any precedential affect [sic],” so that it cannot

operate as the law of the case. Falcon v. General Telephone

Co., 815 F.2d 317, 320 (5th Cir. 1987). See also, Johnson v.

Bd. of Education of Chicago, 457 U.S. 52, 102 S.Ct. 2223,

2224 (1982). The court declared, however, that this Court,

having reversed the ruling on federal jurisdiction, “left

intact our ruling on standing.” (A-4). This conclusion is

subject to question. This Court did not simply reverse the

jurisdictional holding, but reversed “the decision of the

Court of Appeals” with instructions that the case was to

be remanded to state court, 111 S.Ct. at 1710, where, the

Court had previously noted, state standing requirements

would plainly apply. 111 S.Ct. at 1705, n.4, 1709, n.7.

There was no reason for this Court to address the Fifth

Circuit’s holding on standing, because the remand to

state court obviated the need for any consideration of

Petitioners’ standing under Article III. The distinction

between reversal and vacation of a judgment in this con-

text is difficult to discern. See U. S. v. Simmons, 923 F.2d

934, 956 (2d Cir.) cert. denied, __ U.S. __, 111 S.Ct. 2018

(1991) (Supreme Court reversal prevented application of

law of the case doctrine). And the finding that this Court

“left intact” a ruling it held the Fifth Circuit had no

jurisdiction to enter? seems particularly dubious.

3 This Court’s holding that NIH’s removal was statutorily

unauthorized necessarily stripped the federal courts of jurisdic-

14

Additionally, this Court’s decision - even if it could

be said to have left the standing ruling technically

“intact” — cannot in any way be seen as an endorsement

of that ruling. To the contrary, this Court specifically

called into “open question” the matter of whether the

Article III analysis employed by the Fifth Circuit was

applicable. 111 S.Ct. 1705, n.4. Thus, adherence to the

previous holding on standing as the law of the case

violated one of the most fundamental precepts of that

doctrine: the law of the case comes into play only with respect

to issues previously determined. Quern v. Jordan, 440 U.S.

332, 347, n. 18, 99 S.Ct. 1139, 1148, n. 18 (1979); Pegues v.

Morehouse Parish School Bd., 706 F.2d 735, 738 (5th Cir.

1983); Key v. Wise, 629 F.2d 1049, 1054-1055 (5th Cir. 1980);

Pickens v. Okolona Municipal Separate School District, 594

F.2d 433, 436 (1979). See also Nunley v. M/V Dauntless

Colocotronis, 863 F.2d 1190, 1195, 1196 (5th Cir. 1989).

The only standing issue previously determined by

the Fifth Circuit was that Petitioners failed to meet Arti-

cle III standing requirements. Even assuming that that

ruling had precedential value, it would not come into

operation unless and until the threshold question of the

applicability of Article III requirements had been decided

affirmatively. If it were decided that Article III standing

analysis would not apply, the prior decision on standing

would have no bearing whatsoever on the determination

of Petitioners’ standing under state law.

tion. That meant that the Fifth Circuit lacked subject matter

jurisdiction when it determined that Petitioners lacked Article

III standing, and that determination should not achieve “law of

the case” status.

15

The intervening decision of this Court amounted to a

“controlling authority [which] has since made a contrary

decision of law applicable to the issue.” See Falcon, supra

at 320. In such cases, the law of the case cannot be

followed. Id.

Petitioners do not mean to suggest that a writ of

certiorari should be granted to review the Fifth Circuit's

misapplication of the law of the case doctrine; rather, that

the law of the case doctrine does not bar consideration

and decision of the open question whether Petitioners

must satisfy Article III standing requirements.

II. THE FIFTH CIRCUIT’S RULING THAT TULANE’S

REMOVAL OF THIS ACTION WAS PROPER

EXPANDS THE DEFINITION OF 28 U.S.C.

§ 1442(a)(1) IN A MANNER THAT CONFLICTS

WITH THE STATUTE’S INTERPRETATION BY

THIS COURT AND BY LOWER COURTS IN

OTHER CIRCUITS

A. Only natural persons should be entitled to

remove under § 1442(a)(1)

The statute on which Tulane predicated its removal,

entitled “Federal Officers Sued Or Prosecuted,” provides

in pertinent part:

(a) A civil action . . . commenced in a state

court against any of the following persons

may be removed by them...

(1) any officer of the United States or any

agency thereof, or person acting under

re

28 U.S.C. § 1442.

16

After this Court held that defendant NIH was not

entitled to remove, defendant Tulane, asserting that it

was a “person acting under [an officer of the United

States],” filed its removal petition. Tulane had fore-

warned this Court of its intention to take such action and

sought advance approval of it. However, the Court

declared:

whether Tulane will be able to remove the

remanded case requires a determination

whether it is a “person acting under” the Direc-

tor of NIH within the meaning of § 1442(a)(1).

This mixed question of law and fact should not

be resolved in the first instance by this Court,

least of all without an appropriate record.

500 U.S. at 89, 111 S.Ct. at 1710.

The issue is now ripe for review. At the outset, the

question arises whether a non-natural person such as

Tulane falls within the meaning of “person” under

§ 1442(a). Lower courts have reached differing results on

this question.

In IPPL, this Court determined that NIH could not be

viewed as a “person” acting under its directing officer.

This conclusion turned on the awkwardness of NIH’s

interpretation and on the finding that the term “person”

seldom included the sovereign. 500 U.S. at 82, 111 S.Ct. at

1707. The Court did not address the question whether

“person” could include non-natural persons.

While the Dictionary Act does not confine the mean-

ing of “person” to natural persons, See, 1 U.S.C. § 1, (“In

determining the meaning of any act of Congress, unless

17

the context indicates otherwise . . . the word[] ‘per-

son’ . . . include[s] corporations, companies, associa-

tions, . . . ”), the scope of the term depends upon its

context: “[t]he word ‘person’ .. . is not a term of art with

a fixed meaning wherever it is used.” Pfizer Inc. v. India,

434 U.S. 308, 315 (1978).

As this Court observed in IPPL, “for more than 100

years prior to 1948, Congress expressly limited whatever

removal power it conferred upon federal defendants to

individual officers.” 500 U.S. at 85, 111 S.Ct. at 1708. The

long line of caselaw discussing the history and purpose of

the statute make it clear that Congress intended to protect

individuals from the local prejudice and harassment to

which individuals are peculiarly subject. See Mesa v. Cali-

fornia, 489 U.S. 121, 109 S.Ct. 959 (1989); Willingham v.

Morgan, 395 U.S. 402, 89 S.Ct. 1813. The “person acting

under him” language first appeared in the current stat-

ute, Act of June 25, 1948, ch. 646, § 1442, 62 Stat. 938. The

forerunners of § 1442(a)(1) also authorized removal by

“persons” assisting a federal officer; however, the distin-

guishing characteristic of those prior enactments was

their restriction of the “person’s” activities to the enforce-

ment of specific laws.* See e.g., Act of Feb. 4, 1815, Ch. 31,

§ 8, 3 Stat. 198 (officers enforcing the customs act, “ ... or

any other person aiding or assisting, agreeable to the

provisions of this act or under colour thereof, for any

thing done, or omitted to be done, as an officer of the

* Counsel found no evidence of the application of any of

these statutes to non-natural persons, whereas the “acting

under” clause of § 1442(a) has been invoked by corporations

and associations. See discussion below.

18

customs... ”); Act of March 2, 1833, Ch. 57, § 3, 4 Stat.

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

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

the United States, .. . or for on account of any right,

authority, or title set up or claimed by such officer, or

other person under any such law of the United

States... ”); Act of Feb. 28, 1871, Ch. 99, § 16, 16 Stat.

438-439 (“any officer of the United States or other person,

for or on account of any act done under the provisions of

[the Elective Franchise Act]”); Act of 1911, Ch. 231, § 33,

36 Stat. 1097 (“any officer . . . acting by authority of any

revenue law ..., or... any person acting under or by

authority of any such officer .. . ”); Act of 1919, Ch. 85,

§ 28, 41 Stat. 316 (“The commissioner [under the National

Prohibition Act], his assistants, agents, inspectors .. . ”).

The present text of the statute was adopted during

the 1948 Judicial Code revision, which expanded it to

include all federal officers and persons acting under

them. The only legislative history on the revision is

offered by the House Committee Report:

The revised subsection . . . is extended to apply

to all officers and employees of the United

States or any agency thereof. [The predecessor

provision] was limited to revenue officers .. .

H.R. Rep. No. 308, 80th Cong., 1st Sess. A134 (1947). See,

IPPL, 500 U.S. at 84, 111 S.Ct. at 1708.

The comment’s reference to a “person acting under”

as an “employee” is more consistent with an individual

working directly for the government than a corporation

acting pursuant to a contractual arrangement. Moreover,

had Congress intended to expand the removal power not

19

only from certain classes of federal officers to all federal

officers but also from individuals to all persons — natural

or non - contracting with the government, one would

expect further comment on so sweeping a change.

Several cases have considered whether § 1442(a)(1)

embraces non-natural persons. Two of the most thought-

ful analyses, in Ryan v. Dow Chemical, 781 F. Supp. 934

(E.D.N.Y. 1992) (certified for appeal), and Krangel v.

Crown, 791 F. Supp. 1436 (S.D. Ca.), appeal denied, 968 F.2d

914 (9th Cir. 1992), reach different results. Ryan found the

“arid interpretive landscape” unilluminating, and con-

cluded that a corporation, which might be in a position to

invoke a federal defense, could remove. 781 F. Supp. at

946. See also, Pack v. AC&S, Inc., 838 F. Supp. 1099 (D.Md.

1993); Fung v. Avex Corp., 816 F. ahi 569 (N.D. Cal.

1992); Bahrs v. Hughes Aircraft Co., 795 F. Supp. 965 (D.

Ariz. 1992). Krangel, on the other hand, held that

the presumption that Congress’ definition of the

word “person” includes corporations is out-

weighed in light of the purpose of the statute,

the fact that ambiguities should be resolved

against federal jurisdiction, and the strong inter-

est of the states in adjudicating the rights and

obligations of their citizens.

791 F. Supp. at 1446. See also, Mignona v. Sair Aviation, 937

F.2d 37, 41 (2d Cir. 1991) (disallowing removal by a

nonappropriated fund instrumentality).

The court in Bakalis v. Crossland Savings Bank, 781 F.

Supp. 140, 145-146 (E.D.N.Y. 1991), struck a middle

ground between Ryan and Krangel, disallowing the

attempted removal by a bank operating under federal

20

guidelines and holding that when the removing defen-

dant is a corporation “a closer nexus between govern-

ment and the person seeking removal .. . [is] required.”

The Fifth Circuit, without analysis, concluded that

Tulane was a “person”. See A-2. Although its holding

does not, strictly speaking, present a conflict among the

circuits, the non-appealability of most decisions ordering

remand means that the conflict presented here is unlikely

to be carried into the circuit courts. See, 28 U.S.C.

§ 1447(d); Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336, 96 S.Ct. 584 (1976).

The potential expansion of federal jurisdiction to

embrace a broad class of federal contractors, and the

confusion in the lower courts on this issue suggest that

this important question of federal law should be settled

by this Court.

B. Asa matter of law, a person cannot “act under”

a federal officer who lacks ultimate control

The “acting under” requirement of § 1442(a)(1) has

generally presented thornier issues of fact than of law. In

a fairly comprehensive analysis, the court in Ryan v. Dow,

supra, placed removing defendants along a spectrum

between - at one end - those acting under the general

auspices of a federal officer or within a federally regu-

lated industry (not entitled to remove) and - at the other

end — those acting pursuant to an officer’s direct orders

or to comprehensive and detailed regulations (entitled to

remove); between those poles, said the court, are

“numerous close calls.” 781 F. Supp. at 947. As noted

above, the Bakalis court required a “closer nexus” to the

21

government when the removing defendant is a corpora-

tion, 781 F. Supp. at 145, 146. See also, Krangel v. Crown,

supra.

In finding that the requisite governmental control

was exercised here, the Fifth Circuit looked to a 1986

letter agreement signed when NIH transferred the mon-

keys to Tulane’s Primate Center, stating that Tulane was

“acting strictly as an aide to NIH in its role as custodian.”

According to the agreement, Tulane could not make more

than routine decisions without obtaining NIH’s permis-

sion. The court further found (wrongly — see discussion

below) that “NIH officials participated in and directed

the euthanasia of the monkeys.” These facts, the court

concluded, adequately supported the district court’s “act-

ing under” determination. (A-3).

By this analysis, the Fifth Circuit, like the district

court before it, avoided the more difficult legal question:

is it possible to “act under” a federal official (assuming

for a moment that there is one) who himself lacks control

over the actions at issue? The factual question decided by

the courts below - that Tulane could not act without

NIH’s permission — was virtually undisputed. Petitioners’

objection to the invocation of § 1442(a)(1) stemmed not

from the interrelationship between Tulane and NIH, but

from the interrelationship between NIH and IBR, the

private company which owns the monkeys and which has

iron-fistedly retained authority over them. IBR issued

repeated reminders to NIH that it could not take signifi-

cant actions with regard to the monkeys without IBR’s

consent. For example, in 1986, IBR issued a written

reminder to NIH that “[iJn legal parlance, NIH holds the

i oe

*

22

primates as a ‘bailee’ -— it has no ownership rights to

them.” On a later occasion, IBR warned:

If you authorize or participate in the violation of

our property rights by transferring the primates

to any person or institution without our

approval, we shall hold you personally respons-

ible.

NIH repeatedly acknowledged its “absence of

authority to act independently of the owner of the mon-

keys [IBR].” Indeed, when over 300 members of Congress

petitioned NIH to release the animals, NIH plainly stated

that it “d[id] not have authority to act independently of

the monkeys [sic] owner.” On the matters at issue in this

case — the life, death, location, and experimental issues -

Tulane reported to NIH, which reported to IBR, which

alone had the authority to decide the course of action to

be taken.

Both the district court and the Fifth Circuit clearly

considered the matter of IBR’s involvement irrelevant. In

both courts, the removal inquiry stopped abruptly with

the determination that Tulane acted under NIH. The hun-

dreds of pages of documentary and testimonial evidence

addressing the fact that NIH acted under IBR were never

discussed.

Because NIH’s role in this case has essentially been

that of an intermediary, the Fifth Circuit, in looking prin-

cipally to the letter agreement which says Tulane is NIH’s

aide, may have allowed the parties to confer federal

jurisdiction on Tulane by a document that was more form

23

than substance.5 Evidence that Tulane acted under a fed-

eral official who had no authority hardly established the

federal interest at the heart of a § 1442(a) removal.

Removal under § 1442(a)(1) has always been perceived

as an extraordinary remedy, necessary to protect the federal

government from state-sanctioned interference. See, Mesa v.

California, 489 U.S. 121, 126, 109 S.Ct. 959, 963 (1989); Will-

ingham v. Morgan, 395 U.S. 402, 406, 89 S.Ct. 1813, 1815 (1969);

Tennessee v. Davis, 100 U.S. 257, 263 (1880). Willingham deter-

mined that the validity of the claim that an officer was acting

“under color of” office need not be established in order to

justify removal — or, in the words of the Court, the officer

“need not win his case before he can have it reviewed.” 395

U.S. at 407.6 Where a suit is brought directly against the

federal officer, Willingham’s broad interpretation of the

“under color of . . . office” clause, requiring mere assertion of

5 Litigants may not confer subject matter jurisdiction by

agreement. See Insurance Corp. of Ire. v. Compagnie des Bauxites,

456 U.S. 694, 702, 102 S.Ct. 2099 (1982); California v. LaRue, 409

U.S. 109, 113 n.3, 93 S.Ct. 390, 394 n.3 (1972).

6 In Willingham, a prisoner tort suit against a federal war-

den, the Court examined the removal statute’s requirement that

an officer be sued for an act “under color of . . . office”, in light

of the prisoner’s claim that the warden had been engaged in a

“frolic of [his] own.” The fact of the alleged “frolic”, said the

prisoner, defeated removal. The Court disagreed, finding the

“under color of” test satisfied by the warden’s allegation that

his only contact with the prisoner had been in the performance

of his official duties. The question of a “frolic”, the Court ruled,

went to the defenses of official justification and immunity — the

very defenses for which the removal statute intended to provide

a federal forum. Here, the “acting under” requirement raises a

threshhold question of federal interest before the sovereign

immunity issue is reached.

24

a federal defense, clearly effectuates the statutory purpose of

protecting the federal government by providing a federal

forum for federal defenses. But where, as here, the link to the

federal government is more attenuated because removal is

sought by a person allegedly acting under an officer, the

mere assertion of an immunity defense creates less certainty

of the need for the protection of a federal forum.” Tulane’s

removal, premised upon the mere participation, rather than

the control of the federal government, has raised the possi-

bility that litigation concerning any activity touched by fed-

eral funding or other peripheral federal involvement may be

litigated in federal court, regardless of the absence of ulti-

mate government control. Such a result would enlarge the

scope of § 1442(a)(1) exponentially and would offer the

protection of the federal courts to a broad array of cases in

7 Petitioners’ showing that NIH had no real authority over

Tulane’s actions has obvious bearing on the sovereign immunity

defense. Indeed, as this Court observed in IPPL, the official

immunity defense generally hinges on “the crucial question-

. .. whether the relief sought in a suit nominally addressed to

the officer [was] relief against the sovereign.” 500 U.S. at 85, 111

S.Ct. at 1708 (quoting Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682, 687, 69 S.Ct. 1457, 1460 (1949)). Certainly, the

courts below, which gave only the most glancing attention to

Petitioners’ claims that Tulane was not genuinely acting under a

federal officer, apparently considered such an in-depth analysis

beyond the scope of their threshold decision on the propriety of

removal. One of the most frustrating aspects of this litigation

has been that the courts have never addressed the sovereign

immunity defense that was theoretically the basis for the exer-

cise of federal jurisdiction here. Dismissed without a hearing,

Petitioners have never had the opportunity to show that the

“operations of the general government” were not imperilled by

their suit.

25

which the workings of the federal government are clearly

not placed in jeopardy.

If Congress had intended to authorize removal of any

suit in which a sovereign immunity defense were raised,

it could have expressed that intention far more simply

than by the protracted language of § 1442(a)(1). The

restriction of removal power to an “officer of the United

States ..., or person acting under him, for any act under

color of such office . . . ” suggests a narrower meaning

than “any person asserting a federal defense.” As Will-

ingham observed, the narrowing of the statute cannot

practically come from a pre-screening of the sovereign

immunity defense. The statute can, however, be properly

curtailed by a restrictive reading of the “acting under”

requirement, which would insure a pronounced enough

federal interest to warrant the incursion upon the juris-

diction of state courts. In this case, the lower courts’

failure to inquire deeply into the “acting under” require-

ment, combined with their failure to reach the sovereign

immunity defense, resulted in the dismissal of Peti-

tioners’ state claims to no federal purpose —- and on the

strength of a standing defense which § 1442(a)(1) “is not

concerned with . . . protect[ing].” See, IPPL, 500 U.S. at 86

n.7, 111 S.Ct. at 1709 n.7. The rights of Petitioners and the

laws of the State of Louisiana were displaced in protec-

tion of the private actions of private entities.

The marginal federal interest in this case did not

warrant removal, and Petitioners submit that Congress

did not authorize removal: a person cannot “act under” a

federal officer who lacks control over the project in ques-

tion.

Bs

26

C. § 1442(a)(1) requires that one “acting under” an

officer acts under an individual

The Fifth Circuit moved quickly from a statement

that Tulane’s removal must be supported by a showing

that it acted under a federal officer (A-2) to a finding that

Tulane had acted under a federal agency (A-3).

In interpreting § 1442(a)(1) as authorizing removal

only by an individual officer, and not by an agency, this

Court implied that a “person acting under him” would

likewise have to be acting under an individual officer.

Indeed, the Court specifically cited the use of the term

“him” as support for its conclusion that the “officer” later

described as “him” was an individual, not an agency.

IPPL, 500 U.S. at 80, 111 S.Ct. at 1706. It further stated, in

declining to review Tulane’s right of removal, that the

issue “requires a determination whether it is a “person

acting, under the Director of NIH . . . ’,” again suggesting

the need for an individual officer. 500 U.S. at 89, 111 S.Ct.

at 1710 (emphasis supplied).

Consistent with this holding, Tulane identified NIH’s

Dr. Raub as the officer under whom it had acted. When

called upon to prove that Tulane had acted under a

federal officer, however, defendants did not confine

themselves to Dr. Raub’s allegedly supervisory activities

but listed every element of participation by any federal

employee. The scramble to build a record of federal

involvement was necessitated by the fact that IBR, rather

than the federal government, was in charge, as discussed

above, so that Tulane’s prospects of establishing that it

had “acted under” a federal officer were questionable at

27

best. Faced with the daunting task of satisfying the “act-

ing under” requirement, defendants yielded their pre-

tense of having a supervisory federal officer to their

concern for demonstrating a stronger federal presence. To

this end, Tulane pointed to the roles of Dr. Mishkin in the

design of the fatal experiments on the monkeys, and of

Dr. Pons, Mishkin’s subordinate, in the conduct of the

experiments. Petitioners discovered that Dr. Mishkin, a

colleague of the criminally-prosecuted IBR experimenter,

Dr. Taub, had designed the experiment with others at his

home, over a weekend, for the express purpose of avoid-

ing reliance on federal funds. Equally significant was the

undisputed fact that Drs. Pons and Mishkin were

employees of the National Institute for Mental Health

(“NIMH”), now a branch of NIH but then a separate

agency; their work on the monkeys was reviewed by

neither their NIMH supervisor nor by NIH’s Dr. Raub.

Making an error of fact neither urged by defendants nor

committed by the trial court, the Fifth Circuit simply

redesignated Drs. Pons and Mishkin as “NIH officials,”

who were said to have “participated in and directed the

euthanasia of the monkeys.” (A-3).

By this holding, the Fifth Circuit reached the anoma-

lous result that although an agency does not qualify as a

federal officer under the first clause of § 1442(a)(1), the

second clause, referring to a “person acting under him,”

not only encompasses an agency, but more amorphously,

the whole of the federal government. Such a broadening

of the statute conflicts with the holding of this Court in

IPPL.

e

28

CONCLUSION

The application of federal standing requirements to

Petitioners’ state law claims in this removed action

resulted in the dismissal of the suit and the frustration of

state policies, despite the questionable presence of any

federal interest and without any consideration what-

soever of the federal defense that theoretically warranted

removal in the first place. This result conflicts with this

Court’s prior pronouncements that § 1442(a)(1) is not

meant to contract the rights of the parties, and with this

Court’s specific question, unanswered below, whether

Article III standing guidelines can properly be applied to

state-law claims over which the federal court exercises

pendent jurisdiction.

This Court has never examined the scope of 28 U.S.C.

§ 1442(a)(1)’s authorization of removal by a “person act-

ing under” a federal officer. This case presents unre-

solved questions as to who constitutes a “person”, what

is meant by “acting under”, and who or what qualifies as

a federal officer. To the extent these issues have been

addressed by the lower courts, disagreements have

arisen; and the interpretation rendered by the Fifth Cir-

cuit in this case is the most expansive yet, allowing a

substantial broadening of federal jurisdiction.

These issues warrant this Court’s review.

Respectfully submitted,

Marcaret E. Woopwarp (#13677)

610 Poydras Street - Suite 318

New Orleans, Louisiana 70130

Telephone: (504) 525-9538

APPENDIX

Page

A. Decision of the Fifth Circuit Court of Appeals,

WN es fhe s reece tices wicca ee cacn. A-1

B. Judgment of District Court, November 3, 1992.... A-5

C. Reasons for District Court Judgment........... A-6

D. Fifth Circuit Denial of Petition for Rehearing,

i NE Oy 5.00 Fido os eee oe A-13

Deca i mek ha Acid Nee a Dh sk a A ah Al ee hee nk i ae 8,

A-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-3067

INTERNATIONAL PRIMATE PROTECTION LEAGUE, |

PEOPLE FOR THE ETHICAL TREATMENT OF

ANIMALS and LOUISIANA IN SUPPORT OF

ANIMALS,

Plaintiffs-Appellants,

versus

ADMINISTRATORS OF THE TULANE EDUCATIONS

FUND, NATIONAL INSTITUTES OF HEALTH and

INSTITUTES FOR BEHAVIOR RESOURCES, INC.,

Defendants-Appellees.

Appeal from the United States District Court for

the Eastern District of Louisiana

(CA-91-2966 “L” (2))

(Filed May 9, 1994)

Before REAVLEY and JOLLY, Circuit Judges, and PAR-

KER’, District Judge.

* Chief Judge of the Eastern District of Texas, sitting by desig-

nation.

A-2

PER CURIAM:**

The facts of this case are adequately set forth in

International Primate Protection League v. Administrators of

the Tulane Educ. Fund, 895 F.2d 1056, 1057-58 (5th Cir.

1990). The Supreme Court reversed our judgment and

remanded the case to state court. International Primate

Protection League v. Administrators of Tulane Educ. Fund,

111 S. Ct. 1700 (1991). Tulane then removed the case to

federal court under 28 U.S.C. § 1442(a)(1). The district

court determined that removal was proper and dismissed

the suit for lack of standing. The International Primate

Protection League appeals. We affirm.

I. Removal under § 1442(a)(1)

For Tulane to remove under § 1442(a)(1), it must be

(1) a person (2) acting under a federal officer (3) for an act

under color of such office. 28 U.S.C. § 1442(a)(1). Tulane,

as a corporate entity, is “a person” within the meaning of

§ 1442 (a)(1). See Ryan v. Dow Chem. Co., 781 F. Supp. 934,

946-47 (E.D.N.Y. 1992); see e.g., Peterson v. Blue Cross/Blue

Shield of Texas, 508 F.2d 55, 58 (5th Cir.), cert. denied, 422

U.S. 1043 (1975); Texas v. National Bank of Commerce of San

Antonio, 290 F.2d 229, 231 (5th Cir.), cert. denied, 368 U.S.

832 (1961). |

** Local Rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases

on the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession.”

Pursuant to that Rule, the court has determined that this opin-

ion should not be published.

NO pe he EE Re TO EE, ae GP EME OR TN OF RE a cee eee a PR Me RS ee ath et aS me Ne PES Ont ee Cee 7 eee

exe. tne ee

A-3

Next, we must determine whether Tulane was “act-

ing under” a federal officer. While we review the propri-

ety of the removal de novo, we review the court's findings

of fact relating to the jurisdictional issue for clear error.

See MDPhysicians & Assc. [sic], Inc. v. State Board of Ins.,

957 F.2d 178, 180-81 & n.2 (5th Cir.), cert. denied, 113 S. Ct.

179 (1992); Williamson v. Tucker, 645 F.2d 404, 412-17 (5th

Cir.), cert. denied, 454 U.S. 897 (1981). “Acting under” as

used in § 1442 (a)(1) means the federal officer directs or

exercises substantial control over the party’s actions. See

Camacho v. Authoridad de Telefonos de Pureto [sic] Rico, 868

F.2d 482, 486 (1st Cir. 1989); Ryan, 781 F. Supp. at 947-50;

Noble v. Employers Ins. of Wausau, 555 F.2d 1257,- 1258-59

(Sth Cir. 1977); see e.g., Peterson, 508 F.2d at 57; Bank of

Commerce, 290 F.2d at 231.

The National Institute of Health (NIH) and Tulane

entered into a letter agreement that specifically sets forth

Tulane’s duties as an “aide to NIH,” and it states that

Tulane must obtain NIH’s permission before performing

any activity other than the custodial care of the monkeys.

Further, NIH officials participated in and directed the

euthanasia of the monkeys; Tulane provided the facilities

and support staff. Based upon the letter agreement and

NIH’s participation in the euthanasia of the monkeys, we

cannot say that the court clearly erred. See Bank of Com-

merce, 290 F.2d at 231 (holding that detailed letter agree-

ment showed that bank was “acting under” a federal

officer). Removal was proper under §1442(a)(1).

*

II. Standing

Appellants argue that because they have standing

under state law, they should be accorded standing to

pursue their claim in federal court. In the previous

appeal, the Supreme Court noted that this was an open

question, which was not before the Court. Primate Protec-

tion, 111 S. Ct. at 1074-75 n.4. The Supreme Court

reversed our judgment on a federal agency's right to

remove under § 1442(a)(1), but left intact our ruling on

standing. We are, therefore, bound by our previous hold-

ing under the “law of the case” doctrine. See Falcon v.

General Tel. Co., 815 F.2d 317, 319-20 (5th Cir. 1987) (“[I]t

would not do well for the morale or credibility of the

judiciary to have one panel of Circuit Judges second-

guessing another panel from the same circuit on the same

question of law in the same case.”). Appellants lack

standing and the district court properly dismissed the

suit.

AFFIRMED.

A-5

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

INTERNATIONAL CIVIL ACTION

PRIMATE

NO. 91-2966

PROTECTION LEAGUE, is

ET AL SECTION: L(2)

VERSUS

ADMIN. OF THE

TULANE EDUCATIONAL

FUND

JUDGMENT

(Filed Nov. 3, 1992)

The defendants’ motion for summary judgment hav-

ing been granted dismissing the plaintiffs’ case; accord-

ingly,

IT IS ORDERED, ADJUDGED AND DECREED that

there be judgment in favor of the defendants and against

the plaintiffs dismissing plaintiffs’ suit with costs.

New Orleans, Louisiana, this 3rd day of November,

1992.

/s/ Veronica D. Wicker

VERONICA D. WICKER

UNITED STATES DISTRICT

JUDGE

MINUTE ENTRY

WICKER, J

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

INTERNATIONAL PRIMATE CIVIL ACTION

PROTECTION LEAGUE ET AL NO. # 91-2966

VERSUS SECTION “L” (2)

ADMIN. OF THE

TULANE EDUC. FUND (Filed

Nov. 2, 1992) -

The Fifth Circuit has directed this Court to decide

whether the Administrators of the Tulane Educational

Fund [“Tulane”] satisfied the two requirements of

removal under 28 USC §1442(a)(1). In re Administrators of

Tulane Educational Fund, 954 F. 2d 266, 270 (5th Cir. 1992).

Thereafter the defendants filed a Motion for Summary

Judgment on the grounds of standing, sovereign immu-

nity, the supremacy doctrine, and the absence of valid

causes of action under Louisiana’s animal cruelty and tort

laws.

After considering the briefs of counsel, the record,

and the applicable law, this Court finds that removal by

Tulane was proper under 28 USC §1441(a)(1) and that the

defendants’ motion for summary judgment has merit.

The history of this lawsuit is ably set forth in the two

earlier Fifth Circuit decisions. In re Administrators, supra

and International Primate Protection League v. Administra-

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

1990).

A-7

The removal statute at issue, 28 USC §1442(a)(1),

provides in pertinent part:

A civil action . . . 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:

Any officer of the United States or any

agency thereof, or person acting under him,

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

In connection with the issue of Tulane’s removal, the

court reviewed Tulane’s petition for removal, along with

the allegations in plaintiff’s complaint; the various Decla-

rations of William F. Raub, Phd., [“Raub”] Acting Direc-

tor of the National Institutes of Health [“NIH”] setting

forth the terms of a 1986 agreement with Tulane for care

of the monkeys and NIH’s custodial, financial and

research interest in the monkeys; an affidavit of Peter

Gerone, Director of Tulane’s Delta Regional Primate

Research Center; the June 23, 1986, letter from Raub to

John J. Walsh, Chancellor of the Tulane School of Medi-

cine, confirming the agreement for care of the primates;

and those portions of Dr. Raub’s deposition concerning

the 1986 agreement for care of the monkeys at the Delta

Primate Center (Raub deposition at pp. 360-367.)

On that basis, the Court finds sufficient facts have

now been submitted to establish that Tulane satisfies the

two requirements of §1441(a)(1), namely that, at all mate-

rial times, Tulane was and is a “person acting under” the

Director of the NIH, an officer of the United States, and

that its acts are “under color of such office.” Accordingly,

A-8

Tulane’s removal under §1441(a)(1) was proper and this

Court has jurisdiction over this case and controversy.

Of the several grounds that defendants advanced in

their motion for summary judgment, the Court finds the

issue of the plaintiffs’ lack of standing dispositive.

In International Primate Protection League v. Adminis-

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

1990), the Fifth Circuit found that the plaintiffs lacked

Article III standing either to assert an interest to enjoin

Tulane from experimenting on or euthanizing the surviv-

ing monkeys, or to seek custody of the monkeys. Speci-

fically, the court found that plaintiffs failed to allege an

injury sufficient to meet the second prong of the Article

III standing requirements.! The U. S. Supreme Court

reversed International Primate Protection League, supra,

only on the issue of whether NIH’s removal of this matter

from state court was proper under 28 USC §1442(a)(1).

International Primate Protection League v. Administrators of .

Tulane Educational Fund,, __ U.S. __, 111 S. Ct. 1700

(1991). It specifically pointed out at 111 S. Ct. 1705, foot-

note 4, that its grant of certiorari did not extend to the

1 The Fifth Circuit explained that the plaintiff must demon-

strate two things to meet the standing requirements under Arti-

cle III.

First “that he personally has suffered some actual or

threatened injury as a result of the putatively illegal

conduct of the defendant[;],” . .. and second, a causal

connection between the injury and the conduct such

that the injury is “likely to be redressed by a favorable

decision.” (Citations omitted.) International Primate

Protection League v. Administrators of Tulane Educa-

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

See ne eee ee

A-9

Fifth Circuit’s decision that petitioners lacked standing to

protect the monkeys.

In bringing this motion to dismiss, the defendants

contend that the Fifth Circuit decision on the plaintiffs’

lack of standing to sue applies through the doctrine of

collateral estoppel. See generally Greenhouse Patio Apart-

ments v. Aetna Life Ins. Co., 868 F. 2d 153 (5th Cir. 1989);

Witherspoon v. United States, 838 F. 2d 803 (5th Cir. 1988);

Estevez v. Nabers, 219 F. 2d 321 (5th Cir. 1955). In Estevez,

supra, the first judgment was dismissed for lack of juris-

diction and the Fifth Circuit commented:

Even if regarded as a decision not on the merits,

the first action precludes a new adjudication of

the question actually decided although it does

not “bar the cause of action.” . . . The Restate-

ment calls this effect of a non-merits judgment

‘direct estoppel.’ Restatement Judgments Sec.

49, Comment b. This terminological distinction

seems valuable to show that such a judgment

does not bar the cause of action. But whether the

first decision was on the merits or not is not

important here, since we regard the two actions

as not materially different, and the question

actually decided in the first action disposes of

the present one as well. Id. .

In opposing this motion, the plaintiffs argue that they

have standing under Louisiana state law, that the Fifth

Circuit decision on Article III standing has been vacated

and is not binding on this Court, and that there is no

federal interest presented in this controversy so the case

should again be remanded.

“Standing to sue in any Article III court is... a

federal question which does not depend on the party’s

A-10

prior standing in state court. (Citations omitted.)” Phillips

Petroleum Co. v. Shutts, 472 U. S. 797, 804, 105 S. Ct. 2965,

2970 (1985).

[T]he irreducible constitutional minimum of

standing contains three elements: First, the

plaintiff must have suffered an “injury in fact” —

an invasion of a legally-protected interest which

is (a) concrete and particularized, . . . and (b)

“actual or imminent, not ‘conjectural’ or ‘hypo-

thetical,’”. . . . Second, there must be a causal

connection between the injury and the conduct

complained of — the injury has to be “fair-

ly ... trace[able] to the challenged action of the

defendant, and not . . . thfe] result [of] the

independent action of some third party not

before the court. .. . Third, it must be “likely,” as

opposed to merely “speculative,” that the injury

will be “redressed by a favorable decision.”

(Citations omitted.) Lujan v. Defenders of Wildlife,

maw Ud» pg Aha & CO 2S, Seam thee)

Although there may no longer be an extant Fifth Circuit

decision on standing in this case, the Court cannot ignore

the fact that the Fifth Circuit has already decided in this

very case that there was a federal interest presented and

that these plaintiffs do not meet the constitutional

requirements for standing to act as advocates for the

monkeys’ interest. The depositions and exhibits amassed

since the appellate decisions flesh out the details of this

controversy but do not alter the conclusion that these

privately owned monkeys have been in federal custody

for over ten years and that the NIH and its officers have a

continuing custodial, financial and research interest in

these monkeys. Likewise, the facts presented by the

plaintiffs as to standing have not changed since the Fifth

A-11

Circuit handed down International Primates, supra, and

this Court has been presented with no reason why the

Fifth Circuit would now reach a different conclusion

upon those same allegations and those same facts.

Accordingly, defendants’ motion for summary judg-

ment, seeking to dismiss the above captioned case on the

ground that plaintiffs lack standing under Article III of

the United States Constitution to maintain this suit, IS

GRANTED.

The plaintiffs’ contention that the Fifth Circuit deci-

sion on the plaintiffs’ Article III] standing was erroneous

under such cases as Japan Whaling Asso. v. American Ceta-

cean Soc., 478 U. S. 221, 106 S. Ct. 2860 (1986), Animal

Welfare Institute v. Kreps, 561 F. 2d 1002 (D. C. Cir. 1977),

and Alaska Fish & Wildlife Federation v. Dunkle, 829 F 2d

933 (9th Cir. 1987) is more properly addressed to the Fifth

Circuit, not to the district court.

The Court having granted the defendants’ motion to

dismiss, the plaintiffs’ Appeal from the Magistrate’s

Order of September 4, 1992, and their motion to continue

trial are now MOOT.2

? In their motion to continue trial of CA #91-2966, the plain-

tiffs contend that there are several other outstanding motions,

namely a motion of Secretary of HHS and Director of NIH to be

joined as defendants, an earlier motion of Tulane to dismiss or

for summary judgment, plaintiffs’ motion to amend the com-

plaint, defendants’ motion to join federal officers as defendants,

and plaintiffs’ motion to remand.

Court records indicate that this Court denied Tulane’s ear-

lier motion to dismiss or for summary judgment in October,

1991, and granted the plaintiffs’ motion to remand in November

A-12

New Orleans, Louisiana, this 30 day of October, 1992.

/s/ Veronica D. Wicker

VERONICA D. WICKER

UNITED STATES DISTRICT JUDGE

1991 and no other motion to remand has been filed. The Court

notes further that the plaintiff’s motion to amend petition and

Tulane’s motion to join Sullivan were filed in #91-CV-1966 prior

to the Court’s granting the plaintiffs’ motion to remand and

have not been reurged since the case was reopened. Also the

court records indicate that the motiorvof the Secretary of HHS to

be joined as defendants was filed in the earlier closed proceed-

ing #CA 88-5713 and was not reurged in CA #91-2966. However,

even assuming arguendo that they were properly before this

Court in this proceeding, this Court’s dismissal of the plaintiffs’

complaint for lack of standing also makes those motions moot.

A-13

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-3067

INTERNATIONAL PRIMATE PROTECTION

LEAGUE, PEOPLE FOR THE ETHICAL TREATMENT

OF ANIMALS, and LOUISIANA

IN SUPPORT OF ANIMALS,

Plaintiffs-Appellants,

versus

ADMINISTRATORS OF THE TULANE

EDUCATIONAL FUND, NATIONAL INSTITUTES

OF HEALTH, and INSTITUTES FOR

BEHAVIOR RESOURCES, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion May 9, 1994, 2 ee

(Filed June 9, 1994)

Before REAVLEY, JOLLY, Circuit Judges, and PARKER,

District Judge.*

*Chief Judge of the Eastern District of Texas, sitting by designation.

A-14

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no mem-

ber of this panel nor Judge in regular active service on the

Court having requested that the Court be polled on

rehearing en banc, (Federal Rules of Appellate Procedure

and Local Rule 35) the Suggestion for Rehearing En Banc

is DENIED.

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members

of the Court and a majority of the Circuit Judges who are

in regular active service not having voted in favor of it,

(Federal Rules of Appellate Procedure and Local Rule 35)

the Suggestion for Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ Norman M. Reavley

United States Circuit Judge

Judge Duhé did not participate in the consideration of the

suggestion for rehearing en banc.

i?

+