INTERNATIONAL PRIMATE PROTECTION LEAGUE AND ITS MEMBERS, ET AL., PETITIONERS V. ADMINISTRATORS OF TULANE EDUCATIONAL FUND, ET AL. No. A-770 (90-89) In The Supreme Court Of The United States October Term, 1990 On Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Opposition Of Respondent National Institutes Of Health To Application To Stay Mandate Of United States Court Of Appeals For The Fifth Circuit And To Reinstate District Court Injunction Pending Disposition Of The Case Petitioners apply to this Court for relief blocking plans by respondent National Institutes of Health (NIH) to perform euthanasia on two of four research monkeys in NIH's custody. All four monkeys are privately owned, by respondent Institutes for Behavior Resources (IBR), and are currently housed at Tulane University's Delta Regional Primate Research Center in Covington, Louisiana (Delta Center). Three of the four monkeys have been "deafferented," i.e., they have limbs the nerves to which have been severed as part of a research procedure designed to gain medical knowledge for use in rehabilitating human victims of stroke and other persons with central nervous system damage. The relief that petitioners request, or substantially similar relief, has been sought in this and a related proceeding from three lower federal courts on six prior occasions. /1/ Only one court, the district court below, has ever granted the relief for any longer than needed to consider the request for it. Since then, the Fifth Circuit has vacated the district court's order and refused to stay its mandate pending review by this Court. Most recently, on April 10, 1991, (1) the district court below refused to "restore" the vacated injunction, holding, as had the Fifth Circuit, that petitioners lack Article III standing; and (2) the Fifth Circuit denied petitioners' application to recall its mandate pending final disposition of this case. This Court should also deny relief because of petitioners' lack of Article III standing. The Fifth Circuit, following the Fourth Circuit's decision on the same facts, has held that petitioners lack Article III standing to litigate this case in federal court. While this Court decided to review the Fifth Circuit's other holding -- that this case was properly removed from state court to federal court -- this Court chose not to review the court of appeals' holding on standing. Petitioners thus lack standing to make their present application. Petitioners have also failed to demonstrate their entitlement to the extraordinary relief sought here. On one side, petitioners cannot show that they will suffer irreparable injury. In contrast, the National Institutes of Health and the other respondents confront significant injury from further delay in the planned euthanasia, as does the public. NIH, and in turn the public, stand to gain uniquely valuable neurological data from the research protocol developed for euthanizing the monkeys. The data is expected to lead to new procedures for rehabilitating human victims of stroke, among others. Further delay may well prevent NIH from conducting the research protocol and thereby deny the public this benefit. Further delay will surely prolong the pain that the two research monkeys are now experiencing. STATEMENT A complete discussion of the facts and proceedings leading up to the petition for certiorari filed in this case is set forth in the brief on the merits for NIH (NIH Br. 2-6) and in the Fourth Circuit's opinion in International Primate Protection League v. Institute for Behavioral Research, 799 F.2d 934, 937-940 (1986), cert. denied, 481 U.S. 1004 (1987). The pertinent facts and proceedings, as well as subsequent events and related proceedings, will be summarized below. 1. This case arose when petitioners filed suit in the Civil District Court for the Parish of Orleans, Louisiana. Petitioners sought to prevent the planned euthanasia of certain macaque monkeys housed at Tulane University's Delta Regional Primate Research Center. Pursuant to the recommendation of a panel of independent experts, NIH had announced plans to perform the euthanasia in conjunction with a research protocol designed to gain knowledge applicable to rehabilitating persons with neurological injuries such as stroke. /2/ The euthanasia procedure involves deep surgical anaesthesia and is painless. Declaration of William F. Raub (Raub Dec.), Attachment A, paras. 5, 10-14. See also NIH Br. 2-4; IBR Br. 6-7. NIH removed the case from state court to the United States District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. 1442(a). The district court entered a temporary restraining order preventing Tulane and NIH from carrying out the euthanasia. Pet. App. A16. When that order remained in effect after the 20-day limit imposed by Fed. R. Civ. P. 65(b) expired, respondents appealed to the United States Court of Appeals for the Fifth Circuit. Pet. App. A4. While the Fifth Circuit appeal was pending, NIH successfully moved the Fifth Circuit to vacate the district court's injunction with respect to one of the primates. The basis for NIH's motion was similar to the present situation: the primate's health had seriously deteriorated, to the point that veterinarians employed by Delta recommended immediate euthanasia. Attachment C. Euthanasia was necessary to spare the animal further grave pain and to preserve the valuable medical knowledge that would be lost if he expired before the protocol could be carried out. The Fifth Circuit granted NIH's motion and vacted the preliminary injunction as that primate on January 11, 1990. See Attachment D. On January 12, 1990, however, another case involving the monkeys at Tulane was initiated by the Physicians Committee for Responsible Medicine (PCRM) in the United States District Court for the District of Columbia. PCRM filed suit against the Secretary of Health and Human Services, alleging that the research protocol designed for euthanizing the monkeys was fraudulent. See PCRM v. Sullivan, No. 90-0084 (D.D.C.). The district court in PCRM enjoined the planned euthanasia pending a hearing on January 14, 1990. At that hearing, however, all parties agreed that euthanizing the failing primate was the best course, and that course was then taken. Attachment H. On April 13, 1990, the Fifth Circuit in the instant case vacated the preliminary injunction and dismissed the case. The Fifth Circuit held that petitioners lacked Article III standing. Pet. App. A5-A11, A15. The court further held that the case was properly removed from state court pursuant to 28 U.S.C. 1442 and that NIH had sufficient interest in the case to remove it. Id. at A12-A15. Petitioners then asked the Fifth Circuit to stay its mandate pending a petition for certiorari in this Court. In support of this request, they recognized the possiblity that the present situation might come to pass, but argued that, if "one of the animals' condition markedly deteriorate(d), (respondents) could apply for relief from the stay, as was granted in the past." Attachment E, at 2. The Fifth Circuit denied petitioners' motion for a stay on May 2, 1990, and the mandate issued. Attachment D. Petitioners did not then seek a stay of the Fifth Circuit's mandate from this Court. Instead, plaintiffs in PCRM moved for a temporary restraining order in that proceeding to enjoin euthanasia of any of the monkeys. On June 28, 1990, the district court in PCRM denied that motion. Attachment I. The court held that the plaintiffs there had not demonstrated a likelihood of success in proving that the research protocol was inadequate. Of greater relevance here, the district court also held that the public interest would be disserved if the euthanasia were enjoined. The court found a significant danger that "the monkeys may expire or reach a stage of extremis such that NIH would lose the ability to conduct the research protocol." Id. at 7. Subsequently, NIH performed euthanasia and the associated protocol on three of the monkeys at Tulane. The protocol yielded valuable research data. In particular, the experiments revealed an unexpected form of sensory reorganization, apparently a result of the extended period of deafferentation. Raub Dec. para. 14. This data is expected to aid ongoing efforts in developing new procedures to promote recovery of persons with damage to their central nervous system. Ibid. Thereafter, on July 12, 1990, petitioners filed their petition for certiorari in this Court, but still they did not seek from this Court a stay of execution of the Fifth Circuit's judgment pending consideration of their petition. Their petition presented three questions: whether the Fifth Circuit properly ruled that (1) an agency may remove an action under 28 U.S.C. 1442, (2) NIH had a sufficient interest in the action to remove it, and (3) petitioners lacked Article III standing. Pet. i. On November 26, 1990, this Court granted review limited to the removal issue. 111 S. Ct. 507 (1990). 2. At the time this Court agreed to review the removal issue, four monkeys from the original group remained at Tulane. Four remain today. However, since January 1991, the health of two of the monkeys has been deteriorating. An examination conducted on April 4, 1991, revealed that both monkeys have lost significant portions of their body weight over a short period: one had lost almost 25% in less than five months, and the other had lost almost 30% since January 1991. Declaration of Marion Ratterree (Ratterree Dec.), Attachment B, paras. 5, 9, 13. Neither monkey will accept enough nutrition to sustain life, and both have shown signs of muscle atrophy. Id. at paras. 6-13; Raub Dec., para. 8. One has had repeated episodes of self-mutilation, resulting in severe lesions, and also is anemic. Ratterree Dec., para. 7, 8, 10. The other has shown signs of catabolism (a destructive metabolic process), and has become less responsive to his caretakers. Id. at paras. 12, 14. Both monkeys exhibit symptoms of pain, such as gritting their teeth and (in one case) self-mutilation. Based on these facts, Dr. Marion Ratterree, a clinical veterinarian at the Delta Center, recommended that the two monkeys be euthanized. Ratterree Dec., paras. 10, 14. The Director of NIH adopted Dr. Ratterree's recommendation on April 8, 1991. Raub Dec., para. 9. NIH's decision is based in part on concern for the monkey's welfare and in part on the knowledge that these animals need not die in vain. Raub Dec., para. 9. The monkeys have great scientific value because of the long period of time they have spent in a deafferented state and because of the comparatively large portions of their bodies that have been deafferented. Raub Dec., paras. 10, 13. As explained, past procedures have yielded highly valuable data, which NIH expects will significantly aid efforts to promote recovery in persons with neurological damage. Raub Dec., paras. 13, 14. That data will be irretrievably lost, however, if the monkeys expire before the euthanasia can begin, or if the monkeys do not remain stable enough to undergo the process. Id. at paras. 12, 13. NIH advised counsel for petitioners of its decision and the basis for it on April 8, 1991. 3. Also on April 8, 1991, petitioners returned to the district court in Louisiana. Petitioners asked the district court for a "restoration of (its) injunction." There was no "legal impediment" to such an ruling, petitioners maintained; in fact, they asserted, this Court's pending consideration of the case "argues strongly in favor of preservaton of the status quo." In opposition, NIH pointed out that the district court plainly lacked jurisdiction to "restore" its injunction, for any one of several reasons: (1) the Fifth Circuit's holding that they lacked Article III standing, a holding as to which this Court did not grant further review; (2) the Fifth Circuit's refusal to stay its mandate -- under which the injunction to be "restored" had been vacated -- thereby terminating the district court's power to enter injunctive relief (see, e.g., Newton v. Consolidated Gas Co., 258 U.S. 165, 177 (1922); Rakovich v. Wade, 834 F.2d 673, 674 (7th Cir. 1987)); and (3) the Fifth Circuit's vacatur of the prior injunction when virtually the same situation prevailed -- a ruling that, in NIH's view, bound the lower court in the present situation. NIH argued, in addition, that the balance of equities tipped sharply against ordering further delay in the euthanasia. After a hearing on April 10, 1990, the Louisiana district court denied petitioner's injunction request. Attachment J. The court held that it was "bound by the holding of the Fifth Circuit Court of Appeals that (petitioners) lack standing to litigate in Federal Court." Id. at 2. The court noted that, despite the prior Fifth Circuit rulings, "(n)o application for stay has been made to the United States Supreme Court." Ibid. The court concluded: "Even if -- and the if is a big one -- this court would find that (petitioners) are otherwise entitled to the restraining order they seek, this court has no authority to grant that relief at this time." Id. at 2-3. 4. At the same time petitioners were resorting to the Louisiana district court for injunctive relief, plaintiffs in PCRM were seeking identical relief -- namely, an injunction halting the euthanasia pending examination of the monkeys by an "expert" selected by plaintiffs -- in the District of Columbia district court. That court, like the Louisiana court, denied the relief on April 10, 1991. /3/ 5. Later on April 10, petitioners sought the same relief they had sought in Louisiana district court, by filing papers (simultaneously, we are advised) in the Fifth Circuit and in this Court. On the evening of April 10, the Fifth Circuit denied petitioners' application to recall its mandate or, in the alternative, to grant a temporary restraining order pending final disposition of the case in this Court. Attachment K. That same evening, Justice Kennedy entered an order directing recall of the Fifth Circuit's mandate, enjoining respondents from performing the planned euthanasia and from inhumane treatment of the monkeys at Tulane, and directing the Solicitor General to file a response. ARGUMENT 1. Petitioners' application to this Court should be denied because petitioners lack Article III standing to seek relief from this or any other federal court in this case. That petitioners lack Article III standing has now been decided by three lower courts. Most recently, the district court below held that petitioners lack standing and for that reason denied the relief petitioners now seek from this Court. Prior to the district court's ruling, the Fifth Circuit had held that petitioners lacked standing and accordingly dismissed the case. Pet. App. A15 ("As federal court jurisdiction is limited by the constitution, the plaintiffs' failure to allege injury sufficient to satisfy Article III standing requirements is fatal to their suit."). In so holding, the Fifth Circuit properly adopted the reasoning of the Fourth Circuit in an earlier case that concerned the same facts and in which petitioners, among others, sought the same relief as they sought in their original complaint in this case. International Primate Protection League v. Institute for Behavioral Research, Inc. (IPPL), 799 F.2d 934, 937-938 (1986), cert. denied, 481 U.S. 1004 (1987). As NIH explained in its brief opposing certiorari in this case, the Fifth Circuit's holding on standing was correct and fully accorded with the decisions of this Court. NIH Br. in Opp. 6-10. Although this Court granted review of the Fifth Circuit's holding that this case was properly removed, the Court did not grant review of the Fifth Circuit's holding that petitioners lack standing to seek relief on behalf of the monkeys. That ruling precludes petitioners from seeking the relief they now seek. Petitioners are no doubt dissatisfied with the Fifth Circuit's holdings in this case, and they were clearly entitled, and did, seek review of the holding that they lacked Article III standing. This Court chose to limit its grant of review to the removal issue, leaving the holding on standing undisturbed. In this posture, plaintiffs' application should be denied for lack of standing. 2. For reasons set forth above and in NIH's brief on the merits, petitioners have not demonstrated a likelihood of success in prevailing on the merits of this case. But even if it were otherwise, denial of petitioners' application would be compelled. "An applicant's likelihood of success on the merits need not be considered * * * if the applicant fails to show irreparable injury from denial of the stay." Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317 (1983) (Blackmun, J.). Moreover, even if an applicant shows irreparable injury, a stay is not warranted if the injury is outweighed by injury to other parties or to the public. Beame v. Friends of the Earth, 434 U.S. 1310, 1312 (1977); Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1305 (1974). Petitioners fall far short of demonstrating irreparable injury, while both respondents and the public face a substantial risk of irreparable injuy if petitioners' application is granted. a. Petitioners cannot establish that irreparable injury will flow from the denial of their application. In fact, as both the Fifth Circuit here and the Fourth Circuit in IPPL held, petitioners cannot show any injury at all. Since petitioners cannot meet the threshold requirement of Article III injury in fact, a fortiori they cannot establish injury sufficient to warrant the extraordinary relief they now pursue. /4/ In contrast to petitioners' allegations of injury, which have been repeatedly rejected by the lower courts, the injury that respondents confront is imminent and concrete. Since NIH originally funded experimentation on the monkeys in 1981, NIH has invested substantial time and public funds in the care and custody of these research animals, and in designing a research protocol that will be performed in conjunction with the euthanasia. That is what NIH's statutory mandate ordains. See NIH Br. 36-37. NIH's efforts have proven worthwhile to the extent that euthanasia has proceeded. As explained, the limited experimentation that has been permitted has produced medical information that it is hoped will lead to improvement in rehabilitation therapy and pharmaceutical treatment of human patients with brain or spinal cord injury. Raub Dec., paras. 10-14. The results of the research conducted on the monkey that was euthanized in January 1990 (see supra, at 4-5) show its importance to the public. According to one recent publication: David Hubel, Nobel Laureate and Professor of Neurobiology at Harvard Medical School, describes the result as "clearly important" * * *. He adds that it would have been "almost criminal to let the monkey simply die, when you could conduct an experiment without the least suffering on the part of the animal." A. Anderson, Valuable Data: Claim, Nature, vol. 343 (Feb. 15, 1990). Further delay in the euthanasia of the monkeys that are now failing may well deprive NIH and the public forever of the valuable medical information stored in these animals' brains. Petitioners are wrong in asserting that no such risk exists. As Dr. William Raub has explained, there is a risk not only that the monkeys will die, but also that they will become too unstable for the euthanasia procedure. Raub Dec., para. 12. In either event, the uniquely valuable information otherwise to be gained will be irretrievably lost. Notwithstanding petitioners' claims (Pet. Application 9) that they are advocates for the monkeys, euthanasia plainly serves the best interests of the two monkeys at this point. Both monkeys show symptoms of pain. Raub Dec., para. 8. Their condition has grown steadily and rapidly worse, in spite of diligent efforts by their caretakers at the Delta Center. This is why Dr. Ratterree, a clinical veterinarian who has been monitoring the monkeys' health since July 1987 (Ratterree Dec., para. 1), has recommended euthanasia (id. at paras. 10, 14), and why NIH has adopted her recommendation (Raub Dec., para, 12). The euthanasia procedure is painless (ibid.); the alternative is continued suffering, to no one's benefit. /5/ Contrary to petitioners' unsupported assertions, in reaching its decision to euthanize the monkeys, NIH has acted in good faith and with the support of experts in all relevant fields. An independent panel of experts performed a detailed analysis of the monkeys at Tulane in 1988, and developed criteria for euthanasia. Raub Dec., para. 5 and Exh. A. There is no doubt that both animals currently meet those criteria. Id. at para. 8. Petitioners have never adduced any evidence to suggest that the monkeys' care or the euthanasia criteria are inadequate. For this reason, the district court in PCRM held that a challenge to the criteria stands little chance of success. Attachment I. For the same reason, no further inquiry by a panel of petitioners' choosing is warranted. /6/ In sum, the balance of equities tips sharply against granting petitioners' application. There is nothing of weight on petitioners' side of the scale. On the other side are the compelling interests of NIH and the public in carrying out the planned research, and in ending the suffering of the two monkeys. CONCLUSION The application to stay the mandate of the Fifth Circuit and to reinstate the district court injunction should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General APRIL 1991 /1/ As discussed infra, the same or similar relief has been sought by petitioners twice from the district court below and twice from the Fifth Circuit, and twice by plaintiffs in a proceeding concerning the same facts in the District of Columbia, Physicians Committee for Responsible Medicine v. Sullivan, No. 90-0084 (D.D.C.). /2/ The research protocol is distinct from the euthanasia in that part of the protocol, microscopic examination of the central nervous system, is conducted after the euthanasia is completed. /3/ In PCRM, plaintiffs styled their request for injunctive relief as a discovery motion: They alleged that an examination of the monkeys' health would demonstrate NIH's bad faith in designing the research protocol. The district court (Boudin, J.) denied this request on the merits, considering it unrelated to discoverable information. /4/ The two courts of appeals held that petitioners lacked standing based on allegations of (1) a "permanent disruption of (petitioners') personal relationships with the monkeys"; (2) a "long-standing, sincere commitment to preventing inhumane treatment of animals" and (3) petitioners' "mission as advocates for the monkeys," whom, petitioners asserted, would otherwise lack a legal advocate. Pet. App. A37-A38; see also id. at A6-A11. The court of appeals found the first allegation inadequate because "even if the defendants were to comply with the laws putatively violated, (petitioners) would still lack any right to continue their personal relationships with the monkeys." Id. at A6. The courts rejected the second and third allegations relying, respectively, on Sierra Club v. Morton, 405 U.S. 727 (1972), and Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982). See Pet. App. A8-A11. /5/ Contrary to petitioners' contention (Pet. Application 9), delay in the planned euthanasia poses no substantial risk of depriving this Court of jurisdiction by mooting the case. Two monkeys will remain: one control animal that has not been deafferented, and one that has been deafferented. The latter animal, during an examination in March 1988, was rated among the four monkeys with the highest potential for resocialization, signifying his comparatively good health at that time. We are advised this animal has not experienced any deterioration in health similar to that experienced by the two for which euthanasia is planned. /6/ Petitioners mischaracterize (Pet. Application 10-11 & n.4) NIH's prior representations regarding NIH's plans to carry out the euthanasia. NIH has consistently advised petitioners that NIH would refrain from euthanasia only as long as the primates' condition remained stable. At the same time, NIH has repeatedly made clear that euthanasia would be considered if that course of action was recommended by the veterinarians. NIH promptly advised petitioners when the veterinarian advised NIH that the two monkeys should be euthanized.