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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 1032

## Text

No. 94-381

<aename

IN THE
Sipreme Court of the United States

OcTOBER TERM, 1994

INTERNATIONAL PRIMATE PROTECTION LEAGUE
AND ITS MEMBERS, et al.,
Petitioners,
Vv.

ADMINISTRATORS OF TULANE EDUCATIONAL FUND, et al.,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

BRIEF FOR RESPONDENTS ADMINISTRATORS OF

TULANE EDUCATIONAL FUND AND INSTITUTES

FOR BEHAVIOR RESOURCES, INC. IN OPPOSITION
TO PETITION FOR A WRIT OF CERTIORARI

GREGORY C. WEISS * EDGAR H. BRENNER *

LASTRAPES & WEISS The Behavioral Law Center

203 Carondelet Street 4820-B, South 31st Street

New Orleans, Louisiana 70130 Arlington, Virginia 22206

(504) 593-9026 (703) 820-3393

Attorney for Respondent Attorney for Respondent
Administrators of Tulane Institutes for Behavior
Educational Fund Resources, Inc.

October 31, 1994 * Counsel of Record

WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

COUNTER STATEMENT OF QUESTIONS PRESENTED

l.

Should this Court review the decision below to an-
nounce a new rule never articulated by any court that
plaintiffs in cases removed to federal court pursuant
to 28 U.S.C. § 1442(a)(1) do not have to satisfy
Article III standing requirements?

Should this Court review the trial court’s factual find-
ing that Tulane was “a person acting under an officer
of the United States” and that its acts were “under
color of such office” when that finding was reviewed
and approved by a Court of Appeals?

(i)

ii

LIST OF PARTIES

Respondent Institutes for Behavior Resources, Inc.
(“IBR”), formerly Institute for Behavioral Research, Inc.,
accepts petitioners’ listing of the parties and notes that
it is a not-for-profit District of Columbia corporation. IBR
has no parents, subsidiaries or affiliates.

TABLE OF CONTENTS

COUNTER STATEMENT OF QUESTIONS PRE-
I aa inci secssesesssscvnesensecencesonensesonecanesvenovenesenee ;

LIST OF PARTIE .............-.-....-..2-c...cc-sesenacsrecsecccororeecseee
TABLE OF AUTHORITIES ..................----ec--ceeeceeceeeeeeees
CONSTITUTIONAL PROVISION INVOLVED ...........

COUNTER STATEMENT OF THE CASE

A. Background

B. The Appeal to the Fourth Circuit .....................--.---.
C. Prior Proceedings in Louisiana

D. Proceedings in the Supreme Court ...................-------
E. Proceedings After the Supreme Court Decision..

REASONS FOR DENYING THE WRIT ......................-

I. PETITIONERS, WITHOUT ANY LEGAL
BASIS, CONTEND THAT AS PLAINTIFFS
THEY DO NOT HAVE TO ESTABLISH
THEIR OWN ARTICLE III FEDERAL COURT
STANDING BECAUSE, PRIOR TO THE RE-
MOVAL BY TULANE, THEY ASSERTED
EXCLUSIVELY STATE LAW CAUSES OF
ACTION IN STATE COURT. ARTICLE III
STANDING REQUIREMENTS, THEY IN-
CORRECTLY CONTEND, ARE SATISFIED
BY THE ASSERTION OF A FEDERAL DE-
FENSE IN THE REMOVAL PETITION
FILED BY TULANE IN ACCORDANCE
WITH 28 U.S.C. § 1442(a) (1) .........-.---..---0------2

Il. THE “LAW OF THE CASE” RULE WAS
PROPERLY APPLIED ...............2.00+..-c--<-ecsees0-s-

(iii)

Page

onan *§ NW W

10

10

iv

TABLE OF CONTENTS—Continued

Page
III. THE COURT OF APPEALS PROPERLY AP-
PLIED THE “CLEAR ERROR” STANDARD
IN REVIEWING THE TRIAL COURT’S FAC-
TUAL DETERMINATION THAT TULANE
WAS “ACTING UNDER” A FEDERAL OFFI-
CER, AND THUS ENTITLED TO REMOVE
THE CASE TO FEDERAL COURT ................... 19

EIEN ianissnsnicccrecenipenthianpiieemnienindassenspepsuinsaenestintints 21

Se I hart ctascnrsnnensescosienicsanieiciiviniintabeanacibpminitaibinijeamis la

v

TABLE OF AUTHORITIES

Cases: Page
Asarco, Inc. Vv. Kadish, 490 U.S. 605 (1988) .......... 16
Camacho v. Autoridad de Telephonos de Puerto

Rico, 868 F.2d 482 (1st Cir. 1989)...0.000222. 20

Erie Railway Co. v. Tompkins, 304 U.S. 64 (1938).. 16, 17
Falcon V. General Telephone Co., 815 F.2d 317 (5th

CORR I sinisicinsectssccsbeak sid Riedie tae em es 18
Ferency v. Austin, 493 F. Supp. 683 (W.D. Mich.
5 __, NCE AST RS RRO OR OT HP ET Ns SRBE Mim hN TON See 15

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949).. 21
International Primate Protection League v. Insti-
tute for Behavorial Research, Inc., 799 F.2d
934 (4th Cir. 1986), cert. denied, 481 U.S. 1004
£: : | RRO mR MMR Me ie MM Renee ke EEO BONA st 3, 5,14
International Primate Protection League Vv. Tulane
Educational Fund, 895 F.2d 1056 (5th Cir.
ID scicitishs siccnicssiteshedebaialniabeabiuinicanandthamdindamameaieamanaee: 5
International Primate Protection League v. Ad-
ministrators of Tulane Educational Fund, 500

Ula Fees GR Se Ce eae 5, 8, 17,19
Maine Assn. of Independent Neighborhoods V.

Commissioner, 876 F.2d 1055 (1st Cir. 1989) .... 18
Mesa V. California, 489 U.S. 121 (1989) ................. 12

Peterson Vv. Blue Cross/Blue Shield of Texas, 508
F.2d 55 (5th Cir. 1974), cert. denied, 422 U.S.

I SF criienacindedichsiiladassdiosbeemmannis 20
Taub v. State, 296 Md. 439, 463 A.2d 819 (19838).. 4
Texas V. National Bank of Commerce of San
Antonio, 290 F.2d 229 (5th Cir. 1961) —............. 20
Waller v. Georgia, 467 U.S. 39 (1984) .................--.- 11
Constitutional Provisions:
PAPER TE, I BF saiinicieisisscissscicecneccncacnnes 1, 6, 10, 11, 18, 15
Statutes:
Sm Baise iceic tector 20
The Animal Welfare Act, 7 U.S.C. § 2131 et seq..... 3
The Federal Arbitration Act, chapter 2, 9 U.S.C.
I, SI IONE © aaehcncecticinsdceineictenessncumaeseteenns 13

Fe icici steicerscitnicisnniccinetigpeninminnceaaiiiainiain 16

vi
TABLE OF AUTHORITIES—Continued

is He GID iin isce cscs ccciniteininpennesniininioninicesaainiiiiin

Fa rts BED eine ccnsssmntaninitcicenitnimmentainitiinsianini 3,
28 U.S.C. § 1442 (a) (1) ............ 6, 9, 10, 11, 13, 15, 18,

Article 27, Section 59 of the Maryland Code...........

Miscellaneous:

Pons, Massive Cortical Reorganization After Sen-
sory Deafferentation in Adult Macaques, Science
vol. 252, pp. 1861-56 (1991)) ..............................

Stern and Gressman, Supreme Court Practice, 707
) GRR pants Tisai aes Oe nee te er

Wright and Miller, Federal Practice and Proce-
dure: Jurisdiction 2d § 3581.14 _.........2..2222222.

Wright and Miller, Federal Practice and Proce-
dure: Jurisdiction 2d, Removal from State
GE Se CII icccticisnes serch ccensnnctioaaacentanes PaRAR EY OES

16
12,15
19, 20

2,4

In THE
Supreme Cut of the United States

OCTOBER TERM, 1994

No. 94-381

INTERNATIONAL PRIMATE PROTECTION LEAGUE
AND ITS MEMBERS, et al.,
- Petitioners,
ADMINISTRATORS OF TULANE EDUCATIONAL FUND, et al.,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

BRIEF FOR RESPONDENTS ADMINISTRATORS OF

TULANE EDUCATIONAL FUND AND INSTITUTES

FOR BEHAVIOR RESOURCES, INC. IN OPPOSITION
TO PETITION FOR A WRIT OF CERTIORARI

Respondents, Administrators of Tulane Educational
Fund (“Tulane”) and Institutes for Behavior Resources,
Inc. (“IBR”), respectfully request that the petition for
writ of certiorari be denied.

CONSTITUTIONAL PROVISION INVOLVED

Article III, Section 2. The Judicial Power shall ex-
tend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority;—to
all Cases affecting Ambassadors, other public Ministers

SS ee Se CT

2

and Consuls;—to all Cases of admiralty and maritime
jurisdiction;—to Controversies between two or more
States;—between a State and Citizens of another State;—
between Citizens of different States;—between Citizens of
the same State claiming Land under Grants of different
States, and between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.

COUNTER STATEMENT OF THE CASE

A. Background

In 1981, Dr. Edward Taub, the chief of the Behavioral
Biology Center of what is now called the Institutes for
Behavior Resources, Inc. (“IBR”), was studying the ca-
pacity of monkeys to learn to use a limb after sensory
nerves had been severed. Funded by the National Insti-
tutes of Health (“NIH”), the project amplified Dr. Taub’s
earlier research in this area and succeeded in discovering
significant benefits for the rehabilitation of human patients
suffering from serious neurological injury, such as stroke.

Plaintiff, Alex Pacheco, then an undergraduate student,
who, unknown to Dr. Taub, had founded People for the
Ethical Treatment of Animals (“PETA”), falsely claimed
to be interested in a laboratory science career and offered
to work as a volunteer for Dr. Taub at the IBR animal
laboratory facility in Silver Spring, Maryland. Dr. Taub
permitted Pacheco to work as a volunteer, and Pacheco
came regularly to the laboratory during the summer of
1981. Pacheco caused the Montgomery County Police
Department to charge Dr. Taub with animal cruelty under
Section 59 of the Maryland Code.

The police obtained a search warrant from the Circuit
Court for Montgomery County and on September 11.
1981, seized IBR’s 17 monkeys used in Dr. Taub’s experi-
ments. Pursuant to court order the monkeys were re-
turned to IBR. Subsequently, 17 criminal charges were
filed against Dr. Taub alleging 119 violations of the
Maryland animal cruelty statute.

A

i

3

On October 9, 1981, the Circuit Court for Mont-
gomery County, without opposition from IBR, the owner
of the monkeys, directed the monkeys’ transfer to an NIH
facility in Poolesville, Maryland. The order was to re-
main in effect “until further Order of this Court or the
termination of the pending criminal prosecution against
Dr. Taub, whichever occurs first”.

Dr. Taub stood trial in November 1981 in the District
Court for Montgomery County. After a bench trial, the
court entered orders of conviction for failure to provide
“necessary veterinary care” for six monkeys and acquitted
Dr. Taub of the other 113 charges.

Fearing that the court order on custody of the monkeys
would expire with an acquittal, PETA sought to prevent
the return of any animals to IBR. The International
Primate Protection League (“Primate League”), PETA
and others filed a bill of complaint on December 3, 1981,
in the Circuit Court of Montgomery County in which
they purported to speak for “their own and class interests
and as the next friends of seventeen (17) non-human
primates”. PETA alleged that a civil inquiry would dem-
onstrate that IBR had violated the federal Animal Wel-
fare Act, 7 U.S.C. § 2131 et seq. PETA asked the court
to designate it and the other plaintiffs as guardians of the
monkeys, and to preclude IBR from regaining possession
of them. International Primate Protection League v. In-
stitute for Behavioral Research, Inc., 799 F.2d at 934,
936 (4th Cir. 1986), cert. denied, 481 US. 1004
(1987).

On the basis of the federal question presented, NIH
removed the case to the U.S. District Court for the Dis-
trict of Maryland pursuant to 28 U.S.C. § 1441(b).

Dr. Taub appealed his six state court convictions to the
Circuit Court for Montgomery County, Maryland, where
a jury, after a “trial de novo,” returned a guilty verdict
against Taub on one count (failure to provide necessary
veterinary care to one monkey). The Court of Appeals

2 evo

4

of Maryland granted a writ of certiorari and reversed the
conviction, holding that Article 27, Section 59 of the
Maryland Code did not apply to IBR, an institution con-
ducting medical research pursuant to a federal program.
Taub v. State, 296 Md. 439, 463 A.2d 819 (1983).

After Dr. Taub was acquitted of all criminal charges,
NIH continued to act as custodian of the monkeys with
the consent of their owner, IBR.

B. The Appeal to the Fourth Circuit

In 1985, on motion of IBR, the Maryland federal dis-
trict court dismissed the case for lack of standing on the
part of the plaintiffs.

PETA (and the other plaintiffs) appealed the dismissal
of their case to the Fourth Circuit. (While the appeal
was pending, NIH transferred the remaining 15 monkeys
to the Delta Regional Primate Research Center in Cov-
ington, Louisiana. Five of the monkeys, which had not
been surgically altered, were later transferred to the San
Diego Zoo. For the care of the surgically altered animals,
and one control animal, NIH entered into a contract with
Tulane University through its School of Medicine (“Tu-
lane”), which operates the Delta Center. Under the con-
tract, the Delta Center assists NIH in its role as custodian
of the monkeys. )

In 1986, the Fourth Circuit affirmed the district court’s
dismissal of the complaint, stating in part:

In this case we must decide whether a group of pri-
vate individuals may challenge a medical researcher’s
compliance with federal standards for the care of
laboratory animals. Because we find that the plain-
tiffs lack standing to bring such a lawsuit, we affirm
the judgment of the district court in its dismissal of
this action.

To imply a cause of action in these plaintiffs might
entail serious consequences. It might open the use of

5

animals in biomedical research to the hazards and
vicissitudes of courtroom litigation. It may draw
judges into the supervision and regulation of labora-
tory research. It might unleash a spate of private
lawsuits that would impede advances made by medi-
cal science in the alleviation of human suffering. To
risk consequences of this magnitude in the absence
of clear direction from the Congress would be ill-
advised. In fact, we are persuaded that Congress
intended that the independence of medical research
be respected and that the administrative enforcement
govern the Animal Welfare Act. 799 F.2d at 935
(emphasis added).

PETA’s petition to the Supreme Court of the United
States for a writ of certiorari was denied in 1987. 481
U.S. 1004 (1987).

C. Prior Proceedings in Louisiana

In 1988, based on the recommendation of a panel of
independent experts in veterinary care, primate behavior,
and neurology, NIH determined that three of the monkeys
should be euthanized because of the amount of distress
they were experiencing. Plans were made to euthanize
them humanely on December 28-31, 1988. In furtherance
of its statutory research mission, NIH hoped to gain,
through the autopsy of the animals, knowledge that might
lead to improvements in rehabilitation therapy for individ-
uals who have suffered brain or spinal cord damage. See
International Primate Protection League v. Tulane Edu-
cational Fund, 895 F.2d 1056, 1058 (Sth Cir. 1990).

To preclude the euthanasia and experimentation, on
December 28, 1988, PETA, Primate League and others
filed suit in the Civil District Court for the Parish of
Orleans in the State of Louisiana, again seeking custody
of all the surviving Silver Soring Monkeys, and injunctive
relief against the named defendants, the Administrators
of the Tulane Educational Fund, the National Institutes
of Health, and the Institutes for Behavior Resources, Inc.

6

The Louisiana state court issued a temporary restrain-
ing order against Tulane, the only party then served.

The United States Attorney on behalf of NIH removed
the case, under the authority of 28 U.S.C. § 1442(a)(1),
to the United States District Court for the Eastern Dis-
trict of Louisiana. After the removal, petitioners moved
for and secured a temporary restraining order.

The Court of Appeals for the Fifth Circuit concluded
that the removal was proper, the federal interest was ade-
quately established, and that petitioners did not meet the
standing requirement of Article III. Accordingly, the
Fifth Circuit vacated the district court order and dismissed
the entire case. PPL at 1058-61 (1990).

After a motion by plaintiffs to Stay the Mandate was
denied, on July-6, 1990, NIH performed the euthanasia
and the experimental protocol on the three monkeys.
Earlier, another monkey had been euthanized and two
had died.

On November 26, 1990, this Court granted Plaintiffs’
Petition for a Writ of Certiorari. However, review was
limited to the first question presented; namely, the propri-
ety of the removal of the case by NIH from the state
court to the federal court.

In January 1991, the health of two of the monkeys,
Titus and Allen, deteriorated. As a result, NIH decided
to euthanize the two animals.

This decision by NIH was based both on a concern
for the monkeys’ welfare and the significance of the ex-
perimental protocol. The monkeys had great scientific
value because of the long period of time they had spent
in a deafferented state and the comparatively large por-
tions of their bodies that had been deafferented. NIH
expected that the experimentation following euthanasia
would significantly aid efforts to promote recovery in
persons with neurological damage. However, that data
would be irretrievably lost if the monkeys expired before

7

the euthanasia could begin, or if they did not remain
stable enough to undergo the experimental process. NIH
advised counsel for plaintiffs of its decision and the rea-
sons for it on April 8, 1991.

D. Proceedings in the Supreme Court

On April 8, 1991, plaintiffs, in an effort to preclude
any experiments on the monkeys, moved the district court
for a “restoration of [its] injunction”. The district court
denied plaintiffs’ motion.

On the same day, April 10, plaintiffs sought the same
relief they had sought in the district court, in the Fifth
Circuit and in the Supreme Court of the United States.
On the evening of April 10, 1990, Justice Kennedy en-
tered an order directing the recall of the Fifth Circuit’s
mandate, enjoining NIH and Tulane from performing the
planned euthanasia and directing the Solicitor General to
file a response.

After receiving briefs in opposition from NIH and IBR,
this Court denied plaintiffs’ motion on April 12, 1991.
The euthanasia and terminal experiments on the two
primates were completed promptly thereafter.

Data obtained from these experiments were published
in prestigious scientific journals. See, e.¢., Pons, Massive
Cortical Reorganization After Sensory Deafferentation in
Adult Macaques, Science (vol. 252, pp. 1851-56 (1991)).

On May 20, 1991, the Supreme Court held that the
removal by NIH from state court to federal court was
improper and directed a remand to the Civil District
Court for the Parish of Orleans, Louisiana. In Footnote
4 of its opinion, the Supreme Court stated in part:

Our grant of certiorari did not extend to the Court
of Appeals’ determination that petitioners lacked
standing to protect the monkeys. We therefore leave
open the question whether a federal court in a
§ 1442(a)(1) removal case may require plaintiffs to

8

meet Article III’s standing requirements with respect
to the state-law claims over which the federal court
exercises pendent jurisdiction.

International Primate Protection League v. Administra-
tors of Tulane Educational Fund, 500 U.S. 72, 111
S. Ct. 1700, 1705 n.4 (1991).

The Court also stated:

“(W)hether Tulane will be able to remove the re-
manded case requires a determination whether it is
a ‘person acting under’ the Director of N.I.H. 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 appro-
priate record”. Jd. at 1710.

E. Proceedings After the Supreme Court Decision

After the remand to state court, Tulane removed the
action to the federal district court under § 1442(a)(1)
as a “person acting under” an officer of the United States.
The district court granted a motion by the plaintiffs to
remand the case to state court, whereupon Tulane filed
a petition for a Writ of Mandamus with the Fifth Circuit
seeking to reverse the district court’s remand order.

The Court of Appeals concluded that the district
court did not base its remand on jurisdictional grounds
and that, accordingly, the Court of Appeals had juris-
diction to review the remand order.

In vacating the remand order, the Fifth Circuit in the
mandamus action stated in part:

“That the Supreme Court declined to speculate on
whether Tulane is a ‘person acting under’ the Di-
rector of NIH within the meaning of § 1442(a)(1)
on the record before it, does not mean that the dis-
trict court may remand these issues to the state court.
Although it is not perfectly clear to us that any in-
terpretation of state law is necessary, even if it is,

9

a district court does not enjoy the luxury of remand-
ing a case to a state court to interpret state laws or
to make a record. The district court must decide for
itself whether Tulane satisfied the two requirements
of § 1442(a)(1), i.e., that Tulane is a ‘person act-
ing under’ an officer of the United States and that
its acts are ‘under color of such office’. See James
Wm. Moore and Brett A. Ringle, 1A Moore’s Fed-
eral Practice 4 0.164{2] at 398 (Matthew Bender,
1991). (emphasis supplied).

We conclude that the district court expressly and
affirmatively based its decision to remand on non-
§ 1447(c) grounds. We therefore have jurisdiction
to review the remand order under the Thermtron
exception to § 1447(d). We conclude that the peti-
tion has merit. Accordingly, we GRANT the peti-
tion for mandamus and VACATE the remand order.”

After the remand order was vacated the parties en-
gaged in extensive discovery, both on the merits and on
the jurisdictional issues. Depositions were taken, docu-
ments produced, interrogatories were propounded and
answered.

Defendants then moved for summary judgment. The
district court in its decision granting the motion referred
to parts of the record it reviewed. See Pet. App. A-7. The
Court concluded:

“On that basis, the Court finds sufficient facts have
now been submitted to establish that Tulane satis-
fies the two requirements of [1442](a)(1), namely
that, at all material times, Tulane was and is a ‘per-
son acting under’ the Director of the NIH, an officer
of the United States, and that its acts are ‘under
color of such office’. Accordingly, Tulane’s removal
under [1442](a)(1) was proper and this Court has
jurisdiction over this case and controversy”.

The Court of Appeals agreed that Tulane, a corporate
entity, was a “person” within the meaning of § 1442
(a)(1). Pet. App. A-2.

Calan
;

10

In reviewing the trial court’s determination that Tulane
was “acting under” a federal officer, the Court of Appeals
reviewed the trial court’s “findings of fact relating to the
jurisdictional issues for clear error”. Jd. at A-3. The
standard of review issue was the subject of supplementary
post oral argument briefing. See Respondents’ App. A-1.

Relying in part on the letter agreement between Tulane
and NIH, and the central role of NIH officials, the Fifth
Circuit concluded that it could not say that the trial court
“clearly erred”. Pet. App. A-3.

REASONS FOR DENYING THE WRIT

I. PETITIONERS, WITHOUT ANY LEGAL BASIS,
CONTEND THAT AS PLAINTIFFS THEY DO NOT
HAVE TO ESTABLISH THEIR OWN ARTICLE III
FEDERAL COURT STANDING BECAUSE, PRIOR
TO THE REMOVAL BY TULANE, THEY AS-
SERTED EXCLUSIVELY STATE LAW CAUSES
OF ACTION IN STATE COURT. ARTICLE IiIl
STANDING REQUIREMENTS, THEY INCOR-
RECTLY CONTEND, ARE SATISFIED BY THE
ASSERTION OF A FEDERAL DEFENSE IN THE
REMOVAL PETITION FILED BY TULANE IN
ACCORDANCE WITH 28 U.S.C. § 1442(a)(1).

1. This is a different argument than the one Peti-
tioners made to the district court where they asserted
that “plaintiffs can satisfy the standing requirements of
either state or federal court”. Memorandum in Opposi-
tion to Defendants’ Motion for Summary Judgment, at 72
(Oct. 21, 1992). Plaintiffs below also contended that the
first Fifth Circuit decision was erroneous in concluding
that plaintiffs had not established federal court standing.
Pet. App. 11.

2. The argument, upon which Petitioners relied in the
Court of Appeals—that as plaintiffs asserting exclusively
state law causes of action their lack of federal court stand-
ing is irrelevant—ignores the purpose of Article III, which

11

requires that parties seeking affirmative relief must always
establish their federal court standing.

As stated in Stern and Gressman, Supreme Court Prac-
tice, 707 (6th ed.), to satisfy Article III a plaintiff
must establish: 1) that he personally suffered some actual
or threatened injury, 2) that the injury can be traced to
the action of the defendant, and 3) that the injury can
be redressed by a favorable decision.

Stern and Gressman also summarize the “prudential
considerations” supplementing the Article III standing
requirements “directed toward avoiding unnecessary and
inappropriate constitutional adjudications”. Jd. at 708.
They point out that “in state court cases, the Court is not
bound by the state law of standing * * * for the Article
III concerns are particularly federal in nature”. Jdem.
Stern and Gressman also cite Waller v. Georgia, 467 U.S.
39, 43 n.3 (1984) for the proposition that “state court
standing determination is not controlling as to the Su-
preme Court’s duty to avoid advisory opinions”. Stern
and Gressman, id. at 709. These constitutional and pru-
dential considerations are, or course, equally applicable
to United States District Courts and Courts of Appeal.

The Constitution of the United States in Article III thus
confines the federal judiciary to deciding “cases and con-
troversies”. If a plaintiff were not required to establish
his own standing, there would be no means to insure that
the “case or controversy” requirement is satisfied. The
removal by the federal officer, or person acting under him,
though providing federal question jurisdiction, does not
speak to the standing issue.

3. Were Petitioners’ novel and unsupported constitu-
tional interpretation accepted, i.e., that plaintiffs in cases
filed in state court under state law and removed to fed-
eral court pursuant to § 1442(a)(1) by virtue of fed-
eral officer involvement or direction need not establish

12

federal court standing, the jurisdiction and case load of
the federal courts would be radically expanded.

If Petitioners’ approach were implemented, any law
school student in the United States could file suit in state
court against a federal government officer, attacking under
state law federal government policies he found objection-
able. The removal petition and the officer’s assertion of
a federal defense would, in Petitioners’ view, satisfy Ar-
ticle I1I—even if the law student had no personal stake
in the litigation. In such circumstances, though the fed-
eral court would have jurisdiction to hear the federal de-
fense, the “case or controversy” requirement of Article
III would not have been satisfied. Without a direct per-
sonal stake on the part of the hypothetical law school
student plaintiff, there would not be a “case or contro-
versy” because the law student lacked standing to chal-
lenge government policy.

Petitioners advocate a pernicious doctrine of constitu-
tional interpretation which could cause great mischief in
federal courts.

4. An additional weakness in Petitioners’ novel theory
is that “the removal statute merely serves to overcome
the ‘well-pleaded complaint’ rule which would otherwise
preclude removal even if a federal defense were alleged”.
Mesa v. California, 489 U.S. 121, 136 (1989). Federal
officer removal cases are, nevertheless, cases arising under
“the laws of the United States” for Article III purposes.
Are Petitioners by implication contending that federal
question removals under 28 U.S.C. § 1441(b) can go for-
ward even if the plaintiff lacks Article III standing?

In a federal-question removal, the federal issue must
appear on the face of a well-pleaded complaint. In
federal-officer removals, the federal issue is asserted de-
fensively in the removal petition. However, either form
of federal question case can call into question important
federal government programs. On what conceivable basis

13

should the standing requirement apply only when the fed-
eral question is asserted offensively, but be waived in
cases when it is asserted defensively? Petitioners might
just as well assert that in all federal-question litigation
the presence of the federal issue, however asserted, satis-
fies Article I1I—even in the absence of a plaintiff with
a personal stake in the litigation sufficient to create a
case or controversy.’

Nor would it make sense for a federal court to hear
state law claims in the absence of a plaintiff with Article
III standing in federal-officer removal case (as Petitioners
advocate), when such pendent state law claims cannot, in

1 The federal officer removal statute is not the only instance in
which the federal basis for removal need not appear on the face
of the complaint but can be established in the removal petition.

For example, chapter 2 of the Federal Arbitration Act, 9 U.S.C.
§ 201-08 (1982 ed.), provides in section 205:

Where the subject matter of an action or proceeding pending
in a State court relates to an arbitration agreement or award
falling under the Convention, the defendant or the defendants
may, at any time before the trial thereof, remove such action
or proceeding to the district court of the United States for the
district and division embracing the place where the action or
proceeding is pending. The procedure for removal of causes
otherwise provided by law shall apply, except that the ground
for removal provided in this section need not appear on the
face of the complaint but may be shown in the petition for
removal. For the purposes of Chapter 1 of this title any action
or proceeding removed under this section shall be deemed to
have been brought in the district court to which it is removed.
(Emphasis supplied.)

Were Petitioners’ arguments to be accepted the removal petition
itself would establish Article III standing requirements even if
the state court plaintiff lacked any economic interest in the inter-
national contract containing the arbitration clause. If this is not
the implication of Petitioners’ argument, on what conceivable basis
should standing requirements be different for cases removed from
state court to federal court under 28 U.S.C. § 1442(a)(1) rather
than 9 U.S.C. § 205? Clearly, in both instances the removal to
federal court does not establish that there is a case or controversy.

14

the absence of standing, be heard in federal-question re-
moval cases.

In 19815 Petitioners (PETA and International Primate
Protection League) sued Respondents (National Institutes
of Health and Institutes for Behavior Resources) in a
Maryland state court, asserting claims under the federal
Animal Welfare Act with respect to the same Silver
Spring Monkeys at issue in this case. As plaintiffs therein
they also asserted pendent state law causes of action. The
case was removed to federal district court on the basis
of federal-question jurisdiction. A motion to dismiss for
lack of standing was granted. The Court of Appeals for
the Fourth Circuit upheld the dismissal of the federal
claims because the plaintiffs lacked standing. IJnterna-
tional Primate Protection League v. Institute for Behav-
ioral Research, Inc., 799 F.2d 934 (4th Cir. 1986),
cert. denied, 481 U.S. 1004 (1987).

The Fourth Circuit also dismissed the pendent state
law claims, holding that “without a justiciable case or
controversy, federal courts cannot address claims of state
Taw”. Id. at 941.

It would indeed be anomalous if essentially the same
state law claims in federal-question cases were to have
different standing requirements, depending on whether
the removal was based on a federal question (as in the
Fourth Circuit case), or removal on the basis of federal
officer involvement, as in this case. Yet this is the result
Petitioners advocate.

5. Petitioners seek to impart an aura of respectability
to their argument by suggesting that there is treatise and
case law support for their theories. At pages 11-12 of the
Petition, they state:

“Fer this reason, Wright, et al. have opined that
where questions of state law are presented to federal

courts, state standing law applies. 13A Federal Prac-
ticeand Procedure: Jurisdiction 2d § 3531.14 at 84.

Ov Ae ted BONIS PAS

15

See also, Ferency v. Austin, 493 F. Supp. 683, 690
(W.D. Mich. 1980)”.

Neither of the two cited authorities remotely supports
Petitioners’ contention that the plaintiffs’ lack of standing
can be ignored in federal officer removal cases.

Wright and Miller state in 13A Federal Practice and
Procedure: Jurisdiction 2d § 3531.14 that “standing in
federal court is a matter of federal law”. They also state
in the same section:

“Of course, state rules that recognize standing need
not be honored if Article III requirements are not
met”. p. 91.

Nowhere do Wright and Miller say or Suggest that, in
federal officer removal cases, the plaintiff does not have
to establish Article III standing. -

Nor does the district court case of Ferency v. Austin,
493 F. Supp. 683, 690 (W.D. Mich. 1980) support
Petitioners’ assertions.

Ferency was not a federal officer removal case under
28 U.S.C. § 1442(a)(1). It was a run-of-the-mill federal
question removal under 28 U.S.C. 1441(b). The case
was an attack on the State of Michigan’s election law as
applied to the Democratic party. Violations of the United
States Constitution were alleged in the complaint and the
defendant removed on that basis.

The defendant argued that Ferency did not have state
court standing under the Michigan APA. This was a
critical issue because if the state court lacked jurisdiction,
which it would if Ferency lacked state court standing,
the federal court could not acquire jurisdiction by vir-
tue of the removal, even if it would have had original
jurisdiction of such an action. Wright and Miller, Federal
Practice and Procedure, Removal from State Courts,
§ 3722.

16 7

There is not the slightest suggestion that if Ferency
had state court standing, he would not also be required
to establish federal court Article II] standing. Such a
standing requirement was assumed, but not even discussed
in this opinion.

Nor does the case of Asarco, Inc. v. Kadish, 490 U.S.
605 (1988) advance Petitioners’ argument. Though the
state court plaintiffs lacked federal court standing, a case
or controversy developed in the process of state court
adjudication. Thus the original defendants acquired
standing to invoke the jurisdiction of the Supreme Court.
There is no suggestion in Asarco that federal court stand-
ing requirements can be waived for select classes of claim-
ants. Indeed the Asarco court stated,

“We determined that the Petitioners have standing to
invoke the authority of a federal court and that this
dispute now presents a justiciable case or controversy
for resolution here. * * * We also conclude that the
record shows the existence of a genuine case or con-
troversy essential to invoke exercise of the jurisdiction
of this court.” Jd. at 618-19.

6. Petitioners’ argument that “the imposition of Article
III requirements on state law claims” is improper, and
serves no federal purpose, suggests that the import of
their argument is that federal court standing should not
even be required of plaintiffs in diversity cases, either filed
in a district court pursuant to 28 U.S.C. § 1332 or re-
moved to a federal court pursuant to 28 U.S.C.
§ 1441 (a).

Since Erie Railway Co. v. Tomkins, 304 U.S. 64, 68
(1938), in diversity cases “the law to be applied in any
case is the law of the state”. Though a federal forum
is provided to diverse litigants as it is to federal question
litigants, that does not mean that federal constitutional
principles are superseded. As the Erie court noted, the
application of state law applies “except in matters gov-

17

erned by the Federal Constitution or by Acts of Con-
gress”. Idem.

It is clear, however, that federal court diversity liti-
gants must satisfy federal court standing requirements
if they are to assert their state law causes of action in
federal court. There is no apparent reason to require
federal court standing for diverse litigants asserting causes
of action under state law, whose actions are removed to
federal court by reason of diversity jurisdiction, but to
waive that standing requirement for state court litigants
similarly asserting state law causes of action, whose cases
are removed to federal court by federal officers, or those
acting under them, because of the existence of a federal
defense.

There is no reason for this Court to review the decision
below to establish a hitherto unknown exception to fed-
eral court standing requirements—either limited to federal-
officer removal cases, or more expansive. This is the
identical complaint that was previously before this Court
when the standing issue was not deemed suitable for re-
view. Though in Footnote 4 of its 1991 opinion this
Court left open the question of whether in federal-officer
removal cases plaintiffs may be required to meet federal
court standing requirements with respect to their state
law claims, that issue was neither decided nor considered
in depth. No court has ever held that there is an excep-
tion to the federal standing requirement in federal-officer
removal cases. In the absence of a single authority sup-
porting Petitioners, there is no reason to dignify Petition-
ers’ contentions by granting review of the decision below.

II. THE “LAW OF THE CASE” RULE WAS PROPERLY
APPLIED.

This Court in PPL, 111 S. Ct. at 1710, reversed but
did not vacate the first Fifth Circuit opinion; this Court
directed a remand to state court. Certiorari had not been
granted on the standing issue. Jd. at 1705 n.4.

18

When after the remand to state court, and Tulane’s
removal to federal court, the district court judge prop-
erly concluded that, were the Fifth Circuit to review the
identical complaint for the second time, there was no
reason to believe that the Court would rule differently
on the standing issue. Pet. App. A 10-11. Inasmuch as
the removal under 28 U.S.C. § 1442(a)(1) by Tulane
had been upheld, plaintiffs’ lack of federal court standing
required dismissal, not a remand. Cf. Maine Assn. of
Independent Neighborhoods v. Commissioner, 876 F.2d
1055 (ist Cir. 1989). The district court judge accord-
ingly granted summary judgment dismissing the case. Pet.
App. 11.

The Court of Appeals under Falcon v. General Tel.
Co., 815 F.2d 317, 319-20 (Sth Cir. 1987), followed
the previous panel’s ruling on the standing issue. As
Falcon notes, the law of the case doctrine “is not an
inexorable command by a rule of practice limited in
scope” and with a number of exceptions. 7d. at 320. If
any of the exceptions had been applicable, the panel
would have been free to reexamine the standing issue;
though, if they had, there is no reason to believe that
they would have decided differently. In any event, the
invocation of the “law of the case” rule, to follow a
previous panel’s decision on standing with respect to the
identical petition and parties, was proper. Indeed, there
was no reason for the Court to revisit the issue of whether
or not Petitioners had federal court standing because Peti-
titioners were no longer contending that they had stand-
ing, but rather that they did not need standing at all.
The latter argument was not accepted.

19

III. THE COURT OF APPEALS PROPERLY APPLIED
THE “CLEAR ERROR” STANDARD IN REVIEW-
ING THE TRIAL COURT’S FACTUAL DETERMI-
NATION THAT TULANE WAS “ACTING UNDER”
A FEDERAL OFFICER, AND THUS ENTITLED TO
REMOVE THE CASE TO FEDERAL COURT.

When this case was last before this Court, the removal
issue was considered but not resolved. As noted above,
this Court stated:

“(W)hether Tulane will be able to remove the re-
manded case requires a determination whether it is
a ‘person acting under’ the Director of N.L.H. 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 appro-
priate record.” JPPL, 111 S. Ct. at 1711.

Following the remand to state court, Tulane, as con-
templated, removed the case to federal court.

Thereafter, as previously noted, the parties engaged in
extensive discovery, both on the merits and the jurisdic-
tional issues. Depositions were taken, documents pro-
duced, and interrogatories propounded and answered.

Discovery came to a halt when the principals of Peti-
tioner PETA refused to answer discovery deposition ques-
tions, on the ground that they might incriminate them-
selves with respect to their association with a known ter-
rorist organization. They asserted that various federal
grand juries were looking into possible RICO violations
on their part.

Fortunately, a sufficient record had at that point been
developed to permit the defendants to move for summary
judgment on the standing issue, and to flesh out the
factual basis for the Tulane removal petition.

The district court in its decision referred to portions
of the record it reviewed. Pet. App. A-7. The Court
concluded:

20

“On that basis, the Court finds sufficient facts have
now been submitted to establish that Tulane satisfies
the two requirements of [1442](a)(1), namely that,
at all material 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, Tulane’s removal under
[1442](a)(1) was proper and this Court has juris-
diction over this case and controversy”.

The Court of Appeals agreed that Tulane, a corporate
entity, is a “person” within the meaning of § 1442(a)(1).
Pet. App. A-2. The result is consistent with, if not com-
pelled by, the Dictionary Act, 1 U.S.C. 1. No court of
appeals has ever held that a corporation cannot be a per-
son under 1442(a)(1), and the cases are legion in which
corporations have removed cases under 1442(a)(1) as “a
person” acting under a government officer. See, e.g.,
Peterson v. Blue Cross/Blue Shield of Texas, 508 F.2d
55, 58 (Sth Cir. 1974), cert. denied, 422 U.S. 1043 (1975).
Texas Vv. National Bank of Commerce of San Antonio,
290 F.2d 229, 231 (Sth Cir. 1961), cert. denied, 368
U.S. 832 (1961); Camacho v. Autoridad de Telephonos
de Puerto Rico, 868 F.2d 482, 486 (lst Cir. 1989).

In reviewing the trial court’s determination that Tu-
lane was “acting under” a federal officer, the Court of
Appeals reviewed the trial court’s “findings of fact relat-
ing to the jurisdictional issues for clear error”. Jd. at A-3.
The standard of review issue was the subject of supple-
mentary post oral argument briefing. See Respondents’
App. A-1.

Relying in part on the letter agreement between Tulane
and NIH, and the central role of NIH officials, the Fifth
Circuit concluded that it could not say that the trial
court “clearly erred”. Pet. App. A-3. Petitioners make
a generalized objection to the factual determination by
the district court, but none of this comes close to rising
to the level of “clear error”.

21

Nor is such a factual determination, approved by two

courts, a suitable subject for review by this Court. As
stated in Stern and Gressman, supra, at 217-18:

“The Court is even less likely to take a case to re-
view a factual issue—or to reverse on such an issue
if certiorari is granted for some other reason—where
the findings of fact made by the district court re-
ceive the concurrence of the court of appeals. In that
situation the Court has often held that ‘a court of
law, such as this Court is, rather than a court for
correction of errors in fact finding, cannot undertake
to review concurrent findings of fact by two courts
below in the absence of a very obvious and excep-
tional show of error’. Graver Mfg. Co. v. Linde Co.,
336 U.S. 271, 275 (1949), and cases cited * * *.”

CONCLUSION

For the reasons stated above, the Petition for Writ of
Certiorari should be denied.

Respectfully submitted,

GREGORY C. WEISS * EDGAR H. BRENNER *
LASTRAPES & WEISS The Behavioral Law Center
203 Carondelet Street 4820-B, South 31st Street
New Orleans, Louisiana 70130 Arlington, Virginia 22206
(504) 593-9026 (703) 820-8393
Attorney for Respondent Attorney for Respondent

Administrators of Tulane Institutes for Behavior

Educational Fund Resources, Inc.

October 31, 1994 * Counsel of Record

APPENDIX

Ray 2
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APPENDIX

U.S. Department of Justice

[DoJ Loco]
BLH:LVSturgill Telephone:
DJ# 145-16-3259 (202) 514-3427

Washington, D.C. 20530
April 14, 1994

Mr. Charles R. Fulbruge III

Clerk

United States Court of Appeals
for the Fifth Circuit

600 Camp Street

New Orleans, LA 70130

Re: International Primate Protection League v. Ad-
ministrators of the Tulane Educational Fund, No.
93-3067 (5th Cir. )

Dear Mr. Fulbruge:

On April 7, 1994, plaintiffs filed a letter seeking to
correct a misstatement by plaintiffs’ counsel during oral
argument of this case. The alleged misstatement con-
cerned the proper legal standard for reviewing the Dis-
trict Court’s finding that Tulane is acting under NIH
Officials with respect to Tulane’s care of the monkeys.
See Opinion at 2 (the Court “finds sufficient facts have
now been submitted to establish that Tulane” is a person
acting under the Director of NIH with respect to the
monkeys).

Defendants file this response because plaintiffs’ letter
incorrectly states the applicable law. Although the ulti-
mate conclusion regarding whether a case is removable
is a legal issue to be reviewed de novo, Garrett v. Com-
monwealth Mortgage Corp. of America, 938 F.2d 591,

2a

593 (Sth Cir. 1991), findings of fact that relate to ju-
risdictional issues are reviewed under the clearly erroneous
standard. See MDPhysicians & Associates, Inc. v. State
Board of Insurance, 957 F.2d 178, 180-181 & n.2 (5th
Cir.), cert. denied, 113 S. Ct. 179 (1992); Williamson
v. Tucker, 645 F.2d 404, 412-417 (Sth Cir.), cert.
denied, 454 U.S. 897 (1981). The only exception to that
rule is when jurisdictional issues cannot be separated from
the merits of a case. See Williamson, 645 F.2d at 416 &
n.10. This case does not present that situation. Whether
NIH officials have the right to control Tulane’s actions
regarding the monkeys is not inextricably intertwined
with plaintiffs’ state law claims or with NIH’s Supremacy
Clause and sovereign immunity defenses. Therefore, the
Court should review the District Court’s factual finding
that Tulane is acting under NIH officials with respect to
the monkeys under the clearly erroneous standard, and it
should review all related legal issues, including the ulti-
mate conclusion about whether the case was properly
removed, de novo.

We would appreciate it if you could distribute this
letter to the Judges on the panel in this case (Fifth Cir-
cuit Judges Jolly and Reavley and District Judge Parker,
sitting by designation) on behalf of all the Defendants-
Appellees.

Thank you for your assistance in this regard.

Sincerely,

LOWELL V. STURGILL Jr.
Attorney, Appellate Staff

Room 3617, Department of Justice
Washington, D.C. 20530

(202) 514-3427

CC:

3a

Margaret E. Woodward
610 Poydras Street, Suite 318
New Orleans, LA 70130

Edgar H. Brenner

The Behavioral Law Center
4820-B, South 31st Street
Arlington, VA 22206

Elaine W. Selle

Locke, Purnell, Rain & Harrell
501 Poydras Street

Pan American Life Center
New Orleans, LA 70130

Gregory C. Weiss

Lastrapes & Weiss

The Maritime Building

203 Carondelet Street, Suite 355
New Orleans, LA 70130

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0349%3A2. Public record. Not legal advice.