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

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No. 94-381 OCT 3 1 1994

UFrick oF tHe CLERK

Jn the Supreme Court of the Giuted States

OCTOBER TERM, 1994

INTERNATIONAL PRIMATE PROTECTION LEAGUE,

ET AL., PETITIONERS

ADMINISTRATORS OF TULANE EDUCATIONAL

FUND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR

THE NATIONAL INSTITUTES OF HEALTH

IN OPPOSITION

DREW S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

BARBARA L. HERWIG

MATTHEW M. COLLETTE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the plaintiff in an action removed under 28

U.S.C. 1442(a)(1) must have Article III standing.

2. Whether respondent Administrators of the Tulane

Educational Fund (Tulane) was entitled to remove this

action to federal court as a “person acting under” a

federal officer within the meaning of 28 U.S.C. 1442(a)(1).

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Administrators of Tulane Educ. Fund, In re, 954

I 2, 5

Anderson v. Occidental Life Ins. Co., 727 F.2d 855

AERTS ee ee 18

Arizona v. Manypenny, 451 U.S. 232 (1981) cecccccccccecc----.. 12, 17

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) ................ 10

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

I Bie Weal istdiibiceakancsdiiseedcebubaboutesiedcebcanicstitesioensiceocesee 19

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

TASES Siena Sonar dee 18, 19

Camacho v. Autoridad de Telefonos de Puerto Rico,

OD WO GES (IGE Clr, 1GBD) occa ccececscsccecoseseessesesesss 17-18, 21

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

BR GREE STEER Ee 20

Fung v. Abex Corp., 816 F. Supp. 569 (N.D. Cal. 1992) ... 19

Gensplit Fin. Corp. v. Foreign Credit Ins. Ass’n, 616

F’. Supp. 1504 (E.D. Wis. 1985) ...........ccccccecccossecceoseoseee. 20

Group Health, Inc. v. Blue Cross Ass’n, 587 F. Supp.

wk SE eee 19

Havens Realty Crop. v. Coleman, 455 U.S. 363 (1982) ..... i)

International Primate Protection League v. Administra-

tors of Tulane Educ. Fund:

SOO F.20 1OGG (Gth Cir. 1990) ......ccscccccccceseseooececces. 2,4, 6,8

A ID cto cacissseeetocessocesesnesionsonenncsesebacs 5

I Te cil siicinrincedeteeees 2, 3, 4, 5, 8, 11, 18, 20

Cases—Continued:

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

F.2d 934 (4th Cir. 1986), cert. denied, 481 U.S. 1004

CABG) svcsonntatasisnciaiansintekieininrsdiobivteeaiininskeieniiaiesaitinngsviees 3

Krangel v. Crown, 791 F. Supp. 1436 (S.D. Cal.), appeal

denied, 968 F.2d 914 (9th Cir. 1992)... eeessesseeees 19, 20

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992) .... 8 9,10

M.A.I.N. v. Commissioner, Maine Dep’t of Human

Servs., 876 F.2d 1061 (Ist Cir. 1989) ..........cccccccsssscceeees 10, 11

Mesa v. California, 489 U.S. 121 (1989) ....... ee eesseesteees 9

Monell v. Department of Social Servs., 436 U.S. 658

(SIPC snevesrnsnitsheoninnincsmncbbapumesebinheeisanlanetiviowendinceainiiecis 14

Neurological Assocs. v. Blue Cross/Blue Shield, 632 F.

SU. NS a Rs RUUD cersenstircnitbipstgrnitinrsiscteiecstnsins 19

Northeastern Florida Chapter of Associated Gen.

Contractors v. City of Jacksonville, 113 S. Ct. 2297

CRITE scecensiccnmstesnsnéopetonensentinipddenskintabberiantlntiniabheisninenes 10

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

Peterson v. Blue Cross/Blue Shield, 508 F.2d 55 (5th

Cir.), cert. denied, 422 U.S. 1043 (1975) ............... 17, 18 19, 21

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ..... 9 |

Rochester Methodist Hosp. v. Travelers Ins. Co., 728

Fae UE GRRE Ge TIED vcninsccinedinsecacbincsinshecidapniasinicies 18

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

FITEE epvcdihnsseccigubveppcsbievunuietehevsmmnisdaiidncsstaanibideieeiiatees 18, 19

Rowland v. California Men’s Colony, 113 8S. Ct. 716

CTIIOUE .sincniascdeuseioniaimpnigpadsbaniiddcceidiadalebisiideaniietsviateciscers 14, 15

Sullivan v. Stroop, 496 U.S. 478 (1990) ...........sscccccceeseeees 14

Tennessee v. Davis, 100 U.S. 257 (1880) .0.........ceceeeseeeeseees 9,17

Texas ex rel. Falkner v. National Bank of Commerce,

290 F.2d 229 (5th Cir.), cert. denied, 368 U.S. 832

CRUE dicccnnitateininsbingedutintintarnncithddietetdmasestxieptuiesnadetiekwees 19

Waller v. Georgia, 467 U.S. 39 (1984) ..........cececcesssseeeeeeees 9

Will v. Michigan Dep’t of State Police, 491 U.S. 58

REET vacurdesiianicvapanaatdiieceupangudskidbiiaaktdmapaainuitananennessceewen 20

Willingham v. Morgan, 395 U.S. 402 (1969) ............ eee 17

Constitution, statutes and rule: Page

SF as SPOR Ts BOE dakichcdincdsswicavbbeiaiiais 3, 4, 7, 8, 9, 10, 11, 12, 18

FD .: ‘ndeghidaenaneaneapasteiabessehnid diheubibdenadbaaiih pisteuadainiadelecsuits 8

Act of Feb. 25, 1871, ch. 68, § 2, 16 Stat. 431 wu. 16

Act of June 25, 1948, ch. 645, § 6, 62 Stat. 859 ............ 16

Animal Welfare Act, 7 U.S.C. 2131 et seq. ..........cccceeseseees 3

EA Ts BRERA A. inictoemiseenicnescabecameccnsotinnin 13, 15, 16, 20

Be SIE seiitasiiisathnnccdicinteskabicionsctnsbebasebilcabiaaiirssdncadaiiahatia 12

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Bee eG SNE acdhdviepnscntilidsnisdnbiaracnnihiislaninii a aase ei 9)

Sy ar UE Sildniibdilisidininstnomsdusddbcainin easetesaiaiiehctaaiaie tales. 10, 11

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Be is I dhistcancdaskasactlodindiagestclaesintendnloueiacidmnaaiaaie 14

Se SII dicaccsisinisscéutecianeneipapeotmeusmmsaddenianepaaie passim

Fa Re EI kinins cothieinnsndcnsbinieadinkdeendimmaniamatas 14

Be ME Ge. IEEE didecidesndinbsnddebbervnshivaibecmedoenbintiaanaiahaanasin 5

RE Fes SES re IEEE | cidsciintiintodinecteabienaneciiavasiandeameinedeabed 4

Miscellaneous:

13A C. Wright, A. Miller & C. Cooper, Federal Practice

core: FOR GOR GSO wiivniivndsisdcdesateccticnicsnstvcacnncses 13

H.R. Rep. No. 308, 80th Cong., Ist Sess. (1947) ............... 15

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-381

INTERNATIONAL PRIMATE PROTECTION LEAGUE,

ET AL., PETITIONERS

Vv.

ADMINISTRATORS OF TULANE EDUCATIONAL

FUND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR

THE NATIONAL INSTITUTES OF HEALTH

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A4) is

unpublished, but the decision is noted at 22 F.3d 1094

(Table). The opinion of the district court (Pet. App. A5-

A12) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 9, 1994. A petition for rehearing was denied on June

9, 1994. Pet. App. A13-A14. The petition for a writ of

(1)

certiorari was filed on August 31, 1994. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

The background of this case is described in the prior

opinions of this Court, International Primate Pro-

tection League (IPPL) v. Administrators of Tulane

Educ. Fund, 500 U.S. 72 (1991), and the Fifth Circuit, Jn

re Administrators of the Tulane Educ. Fund, 954 F.2d

266 (1992); JPPL v. Administrators of the Tulane Educ.

Fund, 895 F.2d 1056 (1990). The case concerns the care

and custody of macaque monkeys that were the subject of

experiments concerning the ability of the monkeys to

recover the use of a limb after sensory nerves in the limb

had been “deafferented” (severed). The experiments

were first conducted in 1981 by a private research

facility, respondent Institutes for Behavior Resources

(IBR), under a grant from respondent National Insti-

tutes of Health (NIH). The present petition seeks

review of the Fifth Circuit’s holding that the case was

properly removed from state court under 28 U.S.C.

1442(a)(1) by respondent Administrators of the Tulane

Educational Fund (Tulane), and properly dismissed

because petitioners lack Article III standing. Pet. App.

Al-A4.

1. In September 1981, the State of Maryland seized 17

monkeys from IBR’s laboratory in Silver Spring and

initiated criminal proceedings against Dr. Edward Taub

based on alleged mistreatment of the monkeys. NIH took

temporary custody of the monkeys under an order of a

Maryland state court. JPPL, 500 U.S. at 75 n.1. After

Dr. Taub was cleared of all state criminal charges, the

custody order terminated, but NIH kept custody of the

monkeys under an agreement with IBR, the owner of the

monkeys. Jbid. That agreement remains in effect. See

ibid.

In December 1981, several petitioners and other

plaintiffs sued IBR, NIH, and other defendants in a

Maryland state court. The plaintiffs alleged that the

defendants had violated state animal welfare laws and the

federal Animal Welfare Act, 7 U.S.C. 2131 et seq. See

IPPL v. Institute for Behavioral Research, Inc., 799 F.2d

934, 937 (4th Cir. 1986), cert. denied, 481 U.S. 1004 (1987).

NIH removed the action to federal court under 28 U.S.C.

1441(b), and then IBR moved to dismiss the action on the

ground that the plaintiffs lacked Article III standing. 799

F.2d at 937. The district court dismissed the action for

lack of standing, and the Fourth Circuit affirmed. [bid.

2. In 1986, while the Fourth Circuit case was pending,

NIH sent several of the monkeys to Tulane University’s

Delta Primate Research Center in Covington, Louis-

iana. NIH also entered into a contract with Tulane

under which Tulane agreed to assist NIH in its role as

custodian of the monkeys. /PPL, 500 U.S. at 75.

In 1988, NIH announced plans to “euthanize three of

the remaining monkeys and, in the process, to complete

some of the medical research by performing surgical

procedures.” 500 U.S. at 76. Petitioners then filed this

action in the Civil District Court for the Parish of

Orleans, Louisiana. They alleged that respondents’

treatment of the monkeys violated Louisiana law. They

also sought preliminary and permanent injunctive relief,

including an order giving custody of the monkeys to

petitioners or certain members of the United States

Congress. :

Respondent NIH removed the action to the United

States District Court for the Eastern District of

Louisiana under 28 U.S.C. 1442(a)(1).' See JPPL, 500

U.S. at 75. The district court issued a temporary

restraining order barring NIH from performing euthan-

asia and medical research on the three monkeys. 7d. at

75-76. After the court extended the order beyond the 20-

day limit for temporary restraining orders specified in

Fed. R. Civ. P. 65(b), NIH appealed the order as a pre-

liminary injunction under 28 U.S.C. 1292(a)(1). See

IPPL, 500 U.S. at 76.

The Fifth Circuit vacated the preliminary injunction

and dismissed the case. It first held that plaintiffs lack

Article III standing. 895 F.2d at 1062. It rejected

petitioners’ contention that they have standing because

of their “personal relationships” with the monkeys, their

“long-standing, sincere commitment to preventing in-

humane treatment of animals,” or their asserted role as

“{aldvocates for * * * the monkeys.” Jd. at 1059-1061.

The court further held that NIH was entitled to remove

the action under 28 U.S.C. 1442(a)(1), because that pro-

vision authorizes removal by federal agencies. 895 F.2d

at 1061-1062.

This Court granted certiorari to review the Fifth

Circuit’s holding on the removal issue, but the Court

1 28 U.S.C. 1442(a)(1) provides:

A civil action or criminal prosecution commenced in a State

court against any of the following persons may be removed by

them to the district court of the United States for the district

and division embracing the place wherein it is pending:

(1) Any officer of the United States or any agency

thereof, or person acting under him, for any act under

color of such office or on account of any right, title or

authority claimed under any Act of Congress for the

apprehension or punishment of criminals or the collection

of the revenue.

declined to grant certiorari to review the Fifth Circuit’s

holding on the standing issue. 498 U.S. 980 (1990). The

Court subsequently reversed the Fifth Circuit’s

judgment, holding that, while a federal officer may

remove a case under 28 U.S.C. 1442(a)(1), a federal

agency may not. 500 U.S. at 88-89. In light of its

conclusion that NIH was not entitled to remove the

action, the Court ordered the case remanded to state

court. Jd. at 74, 89; see 28 U.S.C. 1447(c).

3. On remand to the state court, Tulane removed the

action to district court under Section 1442(a)(1) as a

“person acting under” a federal officer: namely the

Director of NIH. 954 F.2d at 268.” The district court

remanded the case to state court, however, holding that

Tulane could remove the action under Section 1442(a)(1)

only if the state court first determined that NIH was an

indispensable party under Louisiana law. 954 F.2d at 268.

Tulane petitioned the Fifth Circuit for a writ of

mandamus directing the district court to vacate its

remand order. The Fifth Circuit granted the petition,

holding that the district court “must decide for itself

whether Tulane satisfies the two requirements of

§ 1442(a)(1), 2.e., that Tulane is a ‘person acting under’ an

officer of the United States and that its acts are ‘under

color of such office.’” 954 F.2d at 270. Thereafter, the

district court allowed extensive discovery on whether

Tulane met those requirements.

2 After removing the case, Tulane moved to have the Director

of NIH and the Secretary of the Department of Health and

Human Services added as parties, and petitioners moved to dismiss

NIH as a defendant and to remand the case to state court. 954

F.2d at 268. The district court found it unnecessary to rule on

those motions in light of its holding that Tulane was entitled to

remove the case. Pet. App. All n.2.

On respondents’ motion for summary judgment, the

district-court held that “removal by Tulane was proper

under 28 U.S.C. § 1442(a)(1) and that the [respondents’]

motion for summary judgment has merit.” Pet. App. A6.

With respect to removal, the court determined that

“sufficient facts have now been submitted to establish

that Tulane satisfies the two requirements of [Section

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.’” Pet. App. A7. The district

court explained that 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.” /d. at

A10.

With respect to standing, the district court stated

that, 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.” Pet. App. A10.

The district court determined that the facts relevant to

standing “have not changed since the Fifth Circuit

handed down [J PPL, 895 F.2d 1056 (1990)], 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.” Pet. App. A10-A11.

The district court accordingly granted summary

judgment for respondents and dismissed the case. Id. at

All.

4. The Fifth Circuit affirmed. Pet. App. A1l-A4. It

held, first, that Tulane was entitled to remove the action

under Section 1442(a)(1). It determined that Tulane is a

“person” for purposes of Section 1442(a)(1), because the

term “person,” as used in that provision, is not limited to

natural persons but also includes corporations and

similar legal entities. Pet. App. A2. It further deter-

mined that Tulane was “acting under” the Director of

NIH, an officer of the United States, in carrying out its

contract with NIH to care for the monkeys. Id. at A3.

The Fifth Circuit next held that petitioners were re-

quired to establish Article III standing but had failed to

do so. The court said: “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 holding under the

‘law of the case’ doctrine.” Pet. App. A4.

5. NIH has informed us of the following: Only two

monkeys are now housed at Tulane’s Primate Research

Center. One is a member of the control group of

monkeys and thus has never undergone deafferentation.

NIH does not plan to use that monkey in any experi-

ments on neural functions. The other monkey had a

forelimb deafferented and later amputated. When

euthanasia becomes the humane course for that monkey,

NIH plans to conduct the same experimental protocol on

it that NIH performed on the other monkeys.

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or that of any

other court of appeals. Further review therefore is not

warranted.

1. The court of appeals correctly held that petitioners

must have Article III standing to assert their claims in

federal court. Pet. App. A4.*° The Constitution limits the

power of the federal courts to deciding “[c]ases” and

“{cjontroversies.” U.S. Const. Art. III, § 2. Standing “is

an essential and unchanging part of the case-or-

controversy requirement.” Lujan v. Defenders of Wild-

life, 112 S. Ct. 2130, 2136 (1992). Thus, if the party

seeking relief from a federal court does not have Article

III standing, there is no “case” or “controversy” with re-

spect to which the federal court has power to grant such

relief.

Petitioners argue, however, that a plaintiff whose case

is removed to federal court under 28 U.S.C. 1442(a)(1)

need not have Article III standing to assert state-law

claims. This Court in JPPL v. Administrators of

Tulane Educ. Fund, 500 U.S. 72, 78 n.4 (1991), found it

unnecessary to decide that issue. There is likewise no

need to decide the issue at this point, because it is not

the subject of a conflict among the lower courts.

In any event, there is no merit to petitioners’ claim

that a federal court, in a case removed under Section

1442(a)(1), may award relief to a plaintiff who lacks

3 In this Court, petitioners challenge only the Fifth Circuit’s

holding that they were required to satisfy Article III standing

requirements. They do not seek further review of the Fifth

Circuit’s holding that they did not satisfy those requirements.

Although petitioners object (Pet. 12-15) to the Fifth Circuit’s

grounding of that holding on the “law of the case” doctrine, they

correctly concede (Pet. 15) that the Fifth Circuit’s application of

that doctrine does not warrant further review. In any event, the

Fifth Circuit correctly held in its prior decision that petitioners

lack Article III standing, 895 F.2d at 1059-1061, and this Court

declined to review that holding, 500 U.S. at 78 n.4. There is no

reason for a different course here.

Article III standing. Section 1442(a)(1) does not dispense

with the requirement that a plaintiff have Article III

standing to obtain relief in a federal court. Indeed,

Congress cannot, by any statute, expand the Article III

jurisdiction of the federal courts. See Havens Realty

Corp. v. Coleman, 455 U.S. 363, 372 (1982). Further-

more, the fact that state law gives a plaintiff standing in

state court does not permit a federal court to award

relief if the plaintiff lacks Article III standing. See

Waller v. Georgia, 467 U.S. 39, 44 n.3 (1984); see also

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985)

(“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.”). -

Petitioners point out (Pet. 8) that, to remove an action

under Section 1442(a)(1), the defendant must assert a

colorable federal defense so that the case “arises under”

federal law, as required by Article III. See Mesa v.

California, 489 U.S. 121, 136 (1989); Tennessee v. Davis,

100 U.S. 257, 264 (1880). Petitioners reason that, because

“this was already an Article III case by virtue of the

federal defense, dispensing with Article III’s standing

requirement would have no jurisdictional consequence.”

Pet. 8.

Petitioners erroneously confuse the “arising under”

requirement of Article III with the “case or

controversy” requirement of Article III. Article III’s

standing requirement is an element of its “case or

controversy” requirement. Lujan, 112 S. Ct. at 2136.

Thus, although the assertion of a colorable federal

defense satisfies the “arising under” requirement of

Article III, it does not satisfy the standing requirement.

That is why, even if an action “arises under” federal law,

and is therefore within a federal court’s federal question

jurisdiction (28 U.S.C. 1331), the action is not one that

federal courts have power to entertain if the plaintiff

lacks Article III standing. See, e.g., Lujan v. Defenders

of Wildlife, 112 S. Ct. 2130, 2135-2136 (1992) (applying

Article III standing in federal question case); M.A.I.N. v.

Commissioner, Maine Dep’t of Human Servs., 876 F.2d

1051, 1052-1053 (1st Cir. 1989) (applying Article III

standing in case removed under 28 U.S.C. 1441).

Consequently, respondents’ assertion of a colorable

federal defense does not obviate the need for petitioners

to establish Article III standing to seek relief in federal

court. '

Petitioners also argue, relying upon ASARCO, Inc. v.

Kadish, 490 U.S. 605, 618 (1989), that they need not meet

Article III standing requirements because they were not

“the party attempting to invoke the federal judicial

power.” Pet. 9. Petitioners’ reliance upon ASARCO is

misplaced.

In ASARCO, the State’s highest court issued a judg-

ment in favor of plaintiffs who lacked Article III

standing, and the defendant sought review in this Court.

This Court held that review was appropriate, because the

adverse state judgment gave the defendant/petitioner

sufficient injury-in-fact to provide Article III standing.

ASARCO, 490 U.S. at 618. The fact that the plaintiffs

did not have standing did not prevent review because

“they [we]re not the party attempting to invoke the

federal judicial power.” Jbid.; see also Northeastern

Florida Chapter of Associated Gen. Contractors v. City

of Jacksonville, 113 S. Ct. 2297, 2303 n.4 (1993).

ASARCO is inapposite here. In ASARCO, the Court

was not called upon to award affirmative relief to a party

who lacked Article III standing. Rather, the Court’s

review was limited to the issue upon which the peti-

tioner/defendant had standing—whether the adverse

state court decision should be reversed. In a case

removed under Section 1442, by contrast, the federal

courts are called upon to award affirmative relief to the

plaintiff. Even though the plaintiff did not bring the case

in federal court initially, the fact remains that, if the

plaintiff lacks Article III standing, there is no federal

“case” or “controversy” with respect to the plaintiff's

request for affirmative relief.‘

Indeed, petitioners’ argument that Article III standing

is not required unless the plaintiff “invokes” the federal

judicial power would apply to every type of removal—

including federal question removal under 28 U.S.C.

1441°—because the defendant in a removed case will

always be the party who first invokes the federal judicial

power. Yet courts routinely, and properly, require that

the plaintiff in a federal question removal case have

Article III standing. See, e.g., M.A.I.N., 876 F.2d at 1052-

1053.

The application of Article III standing requirements

to plaintiffs in removed cases will not send state law

“into oblivion,” as petitioners assert (Pet. 10). A plaintiff

reinains free to bring state-law claims in state court

* In JPPL, this Court held that petitioners had standing to seek

review in this Court of the Fifth Circuit’s holding that NIH was

entitled to remove the case, without regard to whether petitioners

had standing to pursue their underlying state-law claims for

affirmative relief. 500 U.S. at 78 n.4. Accordingly, we do not

challenge petitioners’ standing to seek review of the Fifth Circuit’s

decision below holding that Tulane was entitled to remove the case.

Our submission, instead, is that petitioners were required to have

Article III standing to obtain relief on their underlying state-law

claims.

5 28 U.S.C. 1441 authorizes the removal of “any civil action

brought in a State court of which the district courts of the United

States have original jurisdiction,” 28 U.S.C. 1441(a), including civil

actions “founded on a claim or right arising under the Consti-

tution, treaties or laws of the United States,” 28 U.S.C. 1441(b).

against private parties who are not acting under a

federal officer, and to take advantage of any less

stringent standing requirements applicable in the state

court. When a plaintiff sues a federal officer or person

acting under a federal officer, however, the defendant has

a right to remove the case if the defendant asserts a

colorable federal defense. Arizona v. Manypenny, 451

U.S. 232, 242 (1981). Once the defendant exercises that

right, the federal court has the power to adjudicate the

case only within the constraints of Article III.°

Arizona v. Manypenny, supra, does not support a

contrary conclusion, as petitioners assert (Pet. 10-11).

The Court there held that “in a criminal proceeding

removed to federal court, a State may appeal under [28

U.S.C.] § 1291 from an adverse judgment if statutory

authority to seek such review is conferred by state law.”

Manypenny, 451 U.S. at 250. The Court emphasized

that the state law authorizing the State to appeal in a

criminal case was necessary, but not sufficient, to give

the State the right to appeal in a federal forum; instead,

“some independent federal basis,” which the Court found

in 28 U.S.C. 1291, “is required if a State is to perfect its

appeal.” Manypenny, 451 U.S. at 244. The Court

explained that state law “does not affect the exclusively

federal character of the forms of review available once

the state sovereign enters federal court,” id. at 249 n.26,

and thus federal review is available only “within

constitutional constraints,” id. at 249. So too here, it

was not sufficient for petitioners to establish standing

under state law to pursue their claims; rather, federal

6 Contrary to petitioners’ contention (Pet. 9), it is irrelevant

whether the application of Article III standing requirements would

serve the purposes of Section 1442, because those requirements are

imposed by the Constitution.

adjudication of those claims was available only “within

constitutional constraints,” including those imposed by

Article III.’

2. a. The Fifth Circuit correctly held that Tulane was

entitled to remove this case under 28 U.S.C. 1442(a)(1) as

a “person acting under” a federal officer. In so holding,

the court correctly rejected petitioners’ argument that

the term “person” in Section 1442(a)(1) is limited to

natural persons and does not include corporations and

similar legal entities such as Tulane. Moreover, the

Fifth Circuit’s holding accords with that of every other

court of appeals to address the issue, as petitioners

concede (Pet. 20).

i. The Dictionary Act, 1 U.S.C. 1, establishes a pre-

sumption that the term “person,” when used in a federal

statute, is not limited to natural persons:

In determining the meaning of any Act of

Congress, unless the context indicates otherwise—

* * * Kk *

the words “person” and “whoever” include

corporations, companies, associations, firms,

partnerships, societies, and joint stock companies,

as well as individuals.

Congress intended the rules of interpretation set forth

in the Dictionary Act to “apply across-the-board except

where the Act [to be interpreted] by its terms called for a

7 Petitioners err in citing Professors Wright and Miller for a

contrary proposition. Pet. 11-12. Professors Wright and Miller say

that “state rules that recognize standing need not be honored if

Article III requirements are not met.” 13A C. Wright, A. Miller &

C. Cooper, Federal Practice and Procedure § 3531.14, at 91 (2d ed.

1984) (emphasis added).

deviation from this practice.” Monell v. Department of

Social Servs., 436 U.S. 658, 689 n.53 (1978).

Petitioners concede that the Dictionary Act’s rule

that a “person” includes entities other than natural

persons applies to Section 1442(a)(1) “unless the context

requires otherwise.” See Pet. 16-17. They contend, how-

ever, that a more restrictive interpretation is required

by the text, history, and purpose of Section 1442. That

contention is incorrect.

The text of Section 1442(a) strongly suggests that the

term “person” in Section 1442(a)(1) is not limited to

natural persons. The opening paragraph of Section

1442(a) authorizes removal by “any of the following

persons.” Included among the listed “persons” who may

remove an action is, under Section 1442(a)(2), “[a]

property holder whose title is derived from [an officer of

the United States].” 28 U.S.C. 1442(a)(2). Obviously,

property can be held by, and titled in, corporations,

partnerships, trusts, and other non-natural entities.

Therefore, the most natural interpretation is that the

term “persons,” for purposes of Section 1442(a)(2),

includes non-natural persons. The same word “persons”

refers to the entities entitled to remove under Section

1442(a)(1), the subsection under which this action was

removed; the term must, under well-settled canons of

construction, be construed to mean the same thing for

purposes of Section 1442(a)(1) as it means for purposes of

Section 1442(a)(2), and thus to include entities other than

natural persons. See, e.g., Sullivan v. Stroop, 496 U.S.

478, 484 (1990). Accordingly, Section 1442 provides

evidence “independently indicat[ing] the broad reading”

(Rowland v. California Men’s Colony, 113 S. Ct. 716,

725 (1993)) of the term “person” called for under the

Dictionary Act.

Petitioners err in resorting to the legislative history

of Section 1442 for evidence to overcome the Dictionary

Act’s rule that “person” is not limited to natural

persons. Because the Dictionary Act directs courts to

apply its rules of interpretation “unless the context

indicates otherwise” (1 U.S.C. 1), courts must limit their

examination to the statutory text in which the term at

issue is found. See Rowland, 113 S. Ct. at 720 (“If

Congress had meant to point further afield, as to

legislative history, for example, it would have been

natural to use a more spacious phrase, like ‘evidence of

congressional intent,’ in place of ‘context.’”). Thus,

petitioners’ reliance on legislative history is misplaced.

In any event, nothing in the legislative history of

Section 1442 suggests that the term “person” is limited

to natural persons. Congress adopted the modern

version of Section 1442 in the 1948 revision of the

Judicial Code. The legislative history of that recodifi-

cation contains only one brief paragraph concerning

Section 1442, which, not surprisingly, does not address

the question presented here:

The revised subsection (a)(1) is extended to apply to

all officers and employees of the United States or any

agency thereof. [The previous statute] was limited to

revenue officers engaged in the enforcement of the

criminal or revenue laws.

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

Petitioners simply misread that paragraph when they

assert that “[t]he 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 arrange-

ment.” Pet. 18. In fact, the paragraph does not contain

any reference whatsoever to the statutory phrase

“person acting under”; much less does it expressly

equate a “person acting under” a federal officer to a

federal employee, as petitioners would have it. Further-

more, assuming arguendo that the paragraph, though

not explicit on the matter, implies a similarity between

“person[s] acting under” a federal officer and federal

employees, it does not answer the question whether such

“person[s]” can only be natural persons. In sum, the

paragraph of the committee report upon which peti-

tioners rely, construed most favorably to petitioners, is

ambiguous with respect to the question presented here.

It therefore cannot overcome the Dictionary Act’s rule

and the text of Section 1442, both of which both establish

that the term “person” in Section 1442 is not limited to

natural persons. Fs

Nor can petitioners find support for their position in

the absence of case law concerning removal by non-

natural persons under prior versions of the federal

officer removal statute. See Pet. 17 n.4. The presump-

tion that the term “person” includes non-natural entities

is longstanding, as reflected by the fact that when the

Dictionary Act was enacted in 1871, it included the

presumption. See Act of Feb. 25, 1871, ch. 68, § 2, 16 Stat.

431. It therefore does not represent a “sweeping” change

in the law, as petitioners assert (Pet. 19), to apply that

presumption in interpreting Section 1442(a)(1).°

8 Moreover, when Congress enacted the current version of

Section 1442 in 1948, it also amended the Dictionary Act to ensure

that “person” includes “corporations, companies, associations,

firms, partnerships, societies, and joint stock companies, as well as

individuals.” See Act of June 25, 1948, ch. 645, § 6, 62 Stat. 859. If

Congress had intended to limit the reach of the phrase “person

acting under” in Section 1442(a)(1), it presumably would have

made that intention plain in the text of that statute.

Petitioners also err in suggesting that the purpose of

Section 1442 supports their restrictive interpretation of

“person.” See Pet. 19. To the contrary, the purpose of

Section 1442 and its predecessors, as described by this

Court, supports removal by non-natural persons acting

under federal officers:

(The government] can act only through its officers

- and agents, and they must act within the States. If,

when thus acting, and within the scope of their

authority, those officers can be arrested and brought

to trial in a State court, for an alleged offence against

the law of the State, yet warranted by the Federal

authority they possess, and if the general govern-

ment is powerless to interfere at once for their

protection,—if their protection must be left to the

action of the State court,—the operation of the

general government may at any time be arrested at

the will of one of its members.

Tennessee v. Davis, 100 U.S. at 2638 (discussing

predecessor of Section 1442); see also Arizona v. Many-

penny, 451 U.S. at 241 n.16 (Section 1442 reflects “the

need to safeguard the exercise of legitimate federal

authority.”); Willingham v. Morgan, 395 U.S. 402, 406

(1969) (Section 1442 reflects “the very basic interest of

the enforcement of federal law through federal

officials”). The federal government carries out many

statutory functions through private entities—from

determining Medicare reimbursement, Peterson v. Blue

Cross/Blue Shield, 508 F.2d 55 (5th Cir.), cert. denied,

422 U.S. 1043 (1975), to conducting electronic sur-

veillance, see Camacho v. Autoridad de Telefonos de

Puerto Rico, 868 F.2d 482, 486-487 (1st Cir. 1989).° Those

functions are subject to the threat of state interference

whether carried out by natural persons or by the other

entities listed in the Dictionary Act. See Ryan v. Dow

Chemical Co., 781 F. Supp. 934, 946 (E.D.N.Y. 1992)."°

ii. The courts of appeals have uniformly held that

corporations and similar non-natural entities are

“persons” that, when sued in state court for actions

carried out under a federal officer, may remove such

suits to federal court under Section 1442(a)(1). In

Camacho v. Autoridad de Telefonos de Puerto Rico, 868

F.2d 482, 486-487 (1989), for example, the First Circuit

upheld removal under Section 1442(a)(1) by a telephone

company that had conducted electronic surveillance at

the direction of federal officers. In Peterson v. Blue

Cross/Blue Shield, 508 F.2d 55, cert. denied, 422 U.S.

9 Petitioners err in contending that the decision below, by

allowing non-natural persons to remove under Section 1442(a)(1),

will cause an undue “expansion of federal jurisdiction to embrace a

broad class of federal contractors.” Pet. 20. As discussed in the

next section, the decision below accords with all of the decisions by

other courts of appeals addressing the same issue. Under those

decisions, moreover, removal is limited to federal contractors who

poth act under the direction of a federal officer and assert a

colorable federal defense. When a contractor meets those

conditions, it does not represent an undue expansion of federal

jurisdiction to recognize that the contractor has the right to a

federal forum whether, for example, the contractor is a sole

proprietorship—7.e., a natura! person—or a non-natural entity,

such as a one-person corporation.

10 Moreover, the immunity defenses of private, non-natural

entities acting under federal officers present the same sort of

“manipulable complexities” as those of individuals. PPL, 500

U.S. at 87; see Rochester Methodist Hosp. v. Travelers Ins. Co.,

728 F.2d 1006, 1012-1015 (8th Cir. 1984); Anderson v. Occidental

Life Ins. Co., 727 F.2d 855, 856-857 (9th Cir. 1984); Bakalis v.

Crossland Sav. Bank, 781 F. Supp. 140, 148 (E.D.N.Y. 1991).

1043 (1975), the Fifth Circuit upheld removal under

Section 1442(a)(1) by a corporation that acted as a fiscal

intermediary on behalf of the Secretary of Health and

Human Services in the administration of the Medicare

program. 508 F.2d at 58; see also Texas ex rel. Falkner

v. National Bank of Commerce, 290 F.2d 229, 231 (5th

Cir.) (upholding removal under Section 1442(a)(1) by two

banks in action based on banks’ performance of functions

enumerated by Secretary of the Treasury), cert. denied,

368 U.S. 832 (1961).

The majority of district courts to address the issue

likewise have held that non-natural entities are

“persons” that may remove under Section 1442(a)(1).

See, e.g., Pack v. AC & S, Inc., 838 F. Supp. 1099, 1102-

1103 (D. Md. 1993) (manufacturer of turbine generators

for the Navy); Fung v. Abex Corp., 816 F. Supp. 569, 572

(N.D. Cal. 1992) (corporation); Bahrs v. Hughes Aircraft

Co., 795 F. Supp. 965, 968 (D. Ariz. 1992) (government

contractor); Ryan v. Dow Chemical Co., 781 F. Supp.

934, 941-947 (E.D.N.Y. 1992) (corporation); Bakalis v.

Crossland Sav. Bank, 781 F. Supp. 140, 143-144

(E.D.N.Y. 1991) (bank); Neurological Assocs. v. Blue

Cross/Blue Shield, 632 F. Supp. 1078, 1080 (S.D. Fla.

1986) (private insurance company); Group Health, Inc. v.

Blue Cross Ass’n, 587 F. Supp. 887, 890 (S.D.N.Y. 1984)

(same).

The few district court decisions to the contrary are

incorrect and unpersuasive. In Krangel v. Crown, 791 F.

Supp. 1436 (S.D. Cal.), appeal denied, 968 F.2d 914 (9th

Cir. 1992), the court recognized that the language of

Section 1442(a)(1) indicates that the term “person”

includes corporations, but the court held that “the

purpose of the statute suggests a different result than

its language.” 791 F. Supp. at 1446. The court deter-

mined that “the purpose of § 1442(a)(1) is to protect

individual officers,” and not to protect government con-

tractors. See id. at 1442. The Krangel court’s abandon-

ment of the text of the statute is indefensible, and its

understanding of the purpose of the removal statute is

flawed (see pp. 17-18, supra).

Two other district courts have erroneously relied on

decisions holding that federal agencies cannot remove

under Section 1442(a)(1) to conclude that non-natural

entities cannot do so. See Gensplit Fin. Corp. v.

Foreign Credit Ins. Ass’n, 616 F. Supp. 1504, 1508-1510

(E.D. Wis. 1985); C.H. v. American Red Cross, 684 F.

Supp. 1018, 1023-1024 (E.D. Mo. 1987) (adopting the

reasoning of Gensplit). When this Court held that a

federal agency cannot be a “person acting under” a

federal officer, 7PPL, 500 U.S. at 82-84, however, it did

not hold that “person” in Section 1442 is limited to

natural persons. Rather, the Court reasoned that if

Congress had intended to give removal authority to

federal agencies, it would not have expressed this intent

so obliquely, by referring to agencies merely as entities

“acting under” the agency heads. 500 U.S. at 82. The

Court also applied the rule of statutory interpretation

that the term “person” ordinarily does not include the

sovereign. Id. at 82-83; see also, e.g., Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 64 (1989). Neither of

those reasons supports the conclusion that the term

“person” cannot include the private, non-natural entities

listed in the Dictionary Act."

1! The Court in JPPL also reasoned that Congress could

rationally permit federal officers, but not federal agencies, to

remove actions against them because the immunity of agencies, in

contrast to that of officers, ordinarily is a straightforward issue.

500 U.S. at 85. As noted above (note 10, supra), that reasoning

does not justify treating natural persons acting under federal

officers differently from non-natural entities acting under federal!

b. Petitioners also argue (Pet. 20-27) that, even if

Tulane is a “person” for purposes of Section 1442(a)(1), it

could not remove this action because, with respect to the

conduct on which this action is based, it was not “acting

under” a federal officer, as required for removal under

that provision. A private party “act[s}] under” a federal

officer, for purposes of Section 1442(a)(1), if the officer

directs or otherwise exercises substantial control over

the private party’s actions. See, e.g., Camacho, 868 F.2d

at 486; Peterson, 508 F.2d at 57. In caring for the

monkeys, Tulane acted primarily under the direction of

NIH Deputy Director Dr. William Raub and therefore

satisfied the “acting under” requirement.

Petitioners do not take issue with the findings below

that Tulane could not act with respect to the monkeys

without the permission of NIH officials. See Pet. 21.

Nor do petitioners challenge the finding below (Pet. App.

A3) that Tulane acted “strictly as an aide to NIH in its

role as custodian” of the monkeys. Pet. 21. Instead,

petitioners argue that a person cannot “act under” a

federal officer unless that federal officer has “ultimate

control” over the relevant subject matter. Pet. 20-25.

Petitioners claim that NIH officials did not have such

control, because the monkeys belonged to IBR, and NIH

was only their custodian. Pet. 21. That fact-bound claim

has been rejected by both courts below and does not

warrant further review.

In any event, petitioners’ argument lacks merit.

Petitioners cite instances in the record in which IBR

reiterated its ownership rights over the monkeys and

NIH officials acknowledged those rights. See Pet. 21-22.

officers. Both sorts of “persons” may assert immunity defenses of

sufficient complexity that Congress could reasonably have

concluded that they should be resolved in a federal forum.

That evidence, however, does not support petitioners’

assertion that IBR “alone had the authority to decide the

course of action to be taken.” Pet. 22. Moreover, there is

ample evidence in the record that NIH has substantial

authority over the monkeys. The record shows that NIH

officials decided (in consultation with IBR) to transfer

the monkeys to Tulane. Joseph Brady Dep. 39. It also

shows that NIH officials played a major role in directing

the research on the monkeys, reviewing and editing the

research protocol, and convening a panel of independent

experts to make recommendations concerning the health

and physical status of the monkeys. Wm. Raub Dep. 225-

226. NIH also provided funds that supported the care of

and experiments on the monkeys from operating funds of

the Office of the Director of NIH. Jd. at 95.

ce. Finally, petitioners argue that Tulane has not

shown that it acted under a single federal “officer,”

rather than several federal officers. Pet. 26-27. That

fact-bound argument does not merit further review. As

noted above, and as the record upon which the district

court relied (Pet. App. A7) amply demonstrates, Tulane

acted primarily under one NIH officer, Dr. Raub. Dr.

Raub signed the agreement with Tulane for care of the

monkeys, approved the research protocol, and convened a

panel of experts to make recommendations on the health

and welfare of the monkeys. Dr. Raub also made the

decision to transfer the monkeys to Tulane. Raub Decl.

2; Raub Dep. 266, 390-391.

Moreover, petitioners offer no legal support for their

argument that Tulane had to identify one, and only one,

federal officer that it was “acting under.” Nor does

common sense support such a requirement. The heads of

federal agencies, like the heads of corporations, must

delegate duties to subordinates. Moreover, many such

duties require coordination among numerous federal

officials. It was therefore sufficient for Tulane to show

that it acted primarily under Dr. Raub to remove this

case under Section 1442(a)(1).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREw S. DAYS, III