INTERNATIONAL PRIMATE PROTECTION LEAGUE AND ITS MEMBERS, ET AL.,
PETITIONERS V. ADMINISTRATORS OF TULANE EDUCATIONAL FUND, ET AL.

   No. 90-89

   In The Supreme Court Of The United States

   October Term, 1990

   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

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A1-A15) is reported
at 895 F.2d 1056.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. A1-A15) was entered
on March 8, 1990.  A petition for rehearing was denied on April 13,
1990.  Pet. App. A24-A25.  The petition for a writ of certiorari was
filed on July 12, 1990.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioners' suit to enjoin research activities related
to privately owned laboratory animals was properly dismissed for lack
of standing.

   2. Whether federal agencies may remove cases pursuant to 28 U.S.C.
1442(a)(1).

                               STATEMENT

   This case concerns the care and custody of macaque monkeys that
were the subject of experiments to discern whether the monkeys
recovered use of limbs after nerves to the limbs were severed.  Pet.
App. A2.  The experiments were conducted during 1981 by a private
research facility -- then called the "Institute for Behavioral
Research, Inc.," later the "Institutes for Behavior Resources" (IBR)
-- under funding from the National Institutes of Health (NIH).  Ibid.
The purpose of the experiments was to gain information that could be
used in rehabilitating human patients with neurological damage.  Ibid.

   In September 1981, Maryland police executed a warrant at IBR and
seized the monkeys, acting upon allegations that the monkeys were
being mistreated.  Pet. App. A3.  Pursuant to a court order, NIH
assumed custody of the monkeys.  Ibid.  After that order expired, NIH
continued to act as the monkeys' principal custodian with the consent
and cooperation of the monkeys' owner, IBR.  Pet. App. A3-A4.

   In December 1988, NIH announced plans to perform euthanasia on
three of the monkeys pursuant to the recommendation of a panel of
independent experts.  Pet. App. A4.  These three monkeys were then
being kept at Tulane University's Delta Regional Primate Research
Center.  Ibid.  The euthanasia procedure, which would involve deep
surgical anaesthesia, was designed to be humane and painless and to
gain knowledge that could lead to improvements in rehabilitation
therapy for persons who have suffered brain or spinal cord damage, a
stroke, or similar injuries.  Ibid.

   Before NIH could carry out the euthanasia, petitioners sued NIH,
IBR, and the Administrators of Tulane Educational Fund (Tulane) in
Louisiana state court.  Pet. App. A4.  Petitioners sought an order
enjoining the euthanasia and granting custody of the monkeys to
petitioners or members of the U.S. Congress.  Pet. App. A38-A39.
After the state court granted petitioners' motion for a temporary
injunction barring respondents from performing euthanasia on the three
monkeys, NIH removed the case to the United States District Court for
the Eastern District of Louisiana pursuant to 28 U.S.C. 1442 (a)(1).
NIH then moved to dismiss the case on, among other grounds,
petitioners' failure to establish Article III standing to sue.

   Pending consideration of NIH's motion, the district court entered
an order that in effect continued the temporary restraining order
granted by the state court.  Pet. App. A16.  The district court later
refused to vacate its order when NIH objected that the order had
exceeded the twenty-day limit imposed by Federal Rule of Civil
Procedure 65(b).  Pet. App. A4.

   NIH and Tulane appealed the order, which they argued had become the
functional equivalent of a preliminary injunction appealable under 28
U.S.C. 1292(a)(1), to the United States Court of Appeals for the Fifth
Circuit.  Pet. App. A4.  On appeal, NIH and Tulane argued that the
injunction was improper because petitioners failed in their pleadings
to establish Article III standing and so had not proven likelihood of
success on the merits.  /1/

   The court of appeals agreed that none of the three bases for
standing alleged by petitioners satisfied Article III requirements;
it accordingly vacated the injunction and dismissed the case.  With
regard to the first basis asserted -- a "permanent disruption of
(petitioners') personal relationships with the monkeys" -- the court
observed that the Fourth Circuit had already rejected the "virtually
identical" claim when in previous litigation the claim was asserted
against IBR by two of the petitioners herein.  See International
Primate Protection League v. Institute for Behavioral Research, Inc.
(IPPL), 799 F.2d 934 (4th Cir. 1986), cert. denied, 481 U.S. 1004
(1987).  The court below adopted the reasoning of the Fourth Circuit,
which held that petitioners had not established a sufficient causal
connection between the alleged injury and the conduct complained of:
"(E)ven if the defendants were to comply with the laws putatively
violated, the plaintiffs would still lack any right to continue their
personal relationships with the monkeys." Pet. App. A6.  The court
below further held that petitioners' second and third allegations of
Article III injury -- asserting harm to their "long-standing, sincere
commitment to preventing inhumane treatment of animals" and to their
"mission as advocates for the rights" of the monkeys -- did not state
cognizable injuries.  For this holding, the court below relied
principally 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).  Pet. App. A8-A11.  /2/

   The court of appeals also held that the case was properly removed
under 28 U.S.C. 1442(a)(1).  Pet. App. A11-A15.  Relying on prior
decisions of the Fifth Circuit, the court rejected petitioners'
argument that Section 1442(a)(1) does not authorize removal by federal
agencies.  Pet. App. A12-A13.  The court also rejected petitioners'
argument that, although they had named NIH as a defendant, NIH's
interest in the monkeys was insufficient to permit removal under
Section 1442(a)(1).  Pet. App. A13-A15.  The court concluded that "the
only prerequisite to removal of a civil action under Section 1442 is
that it be brought against a federal officer or agency." Pet. App. A13
(quoting IMFC Professional Services v. Latin American Home Health,
Inc., 676 F.2d 152 (5th Cir. 1982)).  The court further concluded that
"NIH's possessory, financial and research interests" in the monkeys
were sufficient to warrant the protection of a federal forum afforded
by the removal statute.  Pet. App. A13-A15.

   After the court of appeals issued its ruling and denied
petitioners' motion for a stay of mandate pending certiorari (Pet.
App. A26), respondents performed the euthanasia procedure previously
planned for three of the monkeys.  Earlier, upon the court's granting
petitioners' motion for partial immediate resolution of the appeal,
NIH had also performed euthanasia on a fourth monkey that was in
severe pain and danger of imminent death.  The case is not moot,
however, because four monkeys of the original group of seventeen are
still alive and are being housed at the Delta Regional Primate
Research Center in Louisiana.  Pet. 4.

                               ARGUMENT

   The decision of the court of appeals is correct and presents no
issue meriting review by this Court.

   1. The court of appeals' ruling that petitioners' pleadings did not
establish Article III standing is correct and does not conflict with
any decision of this Court or any court of appeals.  /3/

   Petitioners' complaint alleged three forms of injury:  (1)
"permanent disruption of their personal relationships with the
monkeys," Pet. App. A37;  (2) impairment of their "sincere commitment
to preventing inhumane treatment of animals, especially as concerns
the monkeys now at Delta," Pet. App. A37-A38;  and (3) impairment of
their "mission as advocates for the right of the Silver Spring
Monkeys, who have no means of protecting themselves," Pet. App. A38.
None of these allegations demonstrates Article III standing.  /4/

   a. Petitioners' first allegation of injury was addressed by the
Fourth Circuit in a case that this Court declined to review.
International Primate Protection League, Inc. v. Institute for
Behavioral Research, Inc. (IPPL), 799 F.2d 934 (1986), cert. denied,
481 U.S. 1004 (1987).  In IPPL, two of the petitioners in this case
alleged that the same conduct complained of here caused "disruption of
their personal relationship" with the same group of monkeys involved
in this case.  799 F.2d at 938.  The Fourth Circuit held that these
allegations did not demonstrate standing because the asserted injury
was not fairly traceable to the challenged conduct:  "(T)hese
plaintiffs could not see the monkeys in the IBR laboratory if the
defendants satisfied all requirements of care." Ibid.  Petitioners now
concede (Pet. 21) that this holding was correct.

   The holding denying standing in IPPL is fully applicable in this
case, as the court below recognized.  Here, as in IPPL, any
relationship between petitioners and the monkeys has come about
largely in the course of litigation.  Ibid.  To this extent, any
disruption flows from the vicissitudes of litigation and is not
cognizable injury in fact.  See, e.g., Valley Forge Christian College
v. Americans United for Separation of Church & State, Inc., 454 U.S.
464, 486 (1982).  Any other ties that may exist are jeopardized, not
by the conduct complained of, but by the fact that these monkeys are
privately owned research animals.  It is the fact of private
ownership, about which petitioners do not and could not complain, that
causes the alleged injury.  /5/ In short, petitioners' assertion (Pet.
21) of a "right of future contact" with the monkeys suffers from the
same "traceability" defect identified in IPPL.  /6/

   Petitioners cannot cure this defect by asserting that they sought
broader relief in this case than they did in IPPL.  See Pet. 21.  /7/
The scope of relief requested may affect the "redressability"
component of the standing inquiry;  it is irrelevant, however, to the
"fairly traceable" component.  Allen v. Wright, 468 U.S. 737, 746-747
(1984).  "Cases such as this, in which the relief requested goes well
beyond the violation of law alleged, illustrate why it is important to
keep the ("'fairly traceable' and redressability") inquiries
separate." Id. at 753 n.19.  Petitioners thus offer no reason why the
Fourth Circuit's admittedly correct ruling in IPPL should not apply
here.

   This is not to say that petitioners fare any better in satisfying
Article III's requirement that they show their alleged injury "is
likely to be redressed by a favorable decision." Simon v. Eastern
Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41 (1976).  On
the contrary, as the court below held (Pet. App. A8) -- a holding that
petitioners do not challenge -- petitioners' complaint failed to
allege that they had met the statutory prerequisites to removal of the
primates from NIH's custody under Louisiana law.  /8/ This failure, as
the court below correctly observed, distinguishes this case from those
in which plaintiffs have included officials authorized by state law to
prosecute violations of animal cruelty laws.  Compare Humane Society
v. Lyng, 633 F. Supp. 480 (W.D.N.Y. 1986).  Moreover, none of
petitioners' other state law causes of action entitled them to
continue their relationships with the monkeys or to be granted custody
of them.  See Pet. App. A35-A37.

   b. The court of appeals was correct when it held that plaintiffs'
second and third allegations of injury were insufficient to create
Article III standing.  In Sierra Club, this Court addressed an
allegation substantially similar to petitioners' second allegation,
which asserts a long-standing commitment to preventing inhumane
treatment of animals.  See 405 U.S. at 735-740.  The Cout concluded
that assertion of such an interest does not satisfy the "require(ment)
that the party seeking review be himself among the injured." Id. at
735.  Just as an interest in conservation was not enough in Sierra
Club to establish standing in the absence of a link to the particular
lands at issue, so too here an interest in humane treatment of animals
is not enough to establish standing in the absence of a link to the
particular animals at issue here.  See Lujan v. National Wildlife
Federation, 110 S. Ct. 3177, 3187-3189 (1990).

   In Valley Forge, the Court addressed an allegation substantially
similar to plaintiffs' third allegation, which asserts their role as
advocates for the primates.  The Court in Valley Forge expressly
rejected the notion that standing should be granted simply because
judicial review otherwise would be unavailable.  454 U.S. at 489.  The
court of appeals' application of Sierra Club and Valley Forge to
conclude that petitioners' second and third allegations of injury were
insufficient was clearly correct.

   c. In any event, the court of appeals would have been justified to
dismiss this case on Supremacy Clause grounds.  U.S. Const. Art. VI,
Cl. 2.  The Supremacy Clause plainly bars petitioners' attempt to use
the state law causes of action alleged in their complaint to regulate
the federal government's custody of the monkeys.  See, e.g., Goodyear
Atomic Corp. v. Miller, 486 U.S. 174, . . . n.1 (1988);  Hancock v.
Train, 426 U.S. 167, 178 (1975).  The Supremacy Clause required
dismissal of the private defendants as well as NIH in this action,
because the state law causes of action petitioners asserted would have
effectively prohibited NIH from carrying out its plans to perform
euthanasia on the monkeys.  So applied, state law would directly
conflict with the federal policy against interference with federally
funded research that employs laboratory animals.  See 7 U.S.C.
2143(a)(6)(A)(i) and (ii);  see also, e.g., Public Utilities Comm'n v.
United States, 355 U.S. 534, 544 (1958);  Leslie Miller, Inc. v.
Arkansas, 352 U.S. 187 (1956) (per curiam).  Thus, the Supremacy
Clause argument, which was raised below but not reached, provided an
independent ground upon which this case was properly dismissed.

   2. This Court should not grant certiorari to decide whether NIH was
entitled to remove this case to federal court under 28 U.S.C.
1442(a)(1).  The decision below does conflict with the Third Circuit's
decision in Lovell Mfg., Div. of Patterson-Erie Corp. v. Export-Import
Bank of United States, 843 F.2d 725, 733 (1988), but that court is the
only other court of appeals to have directly addressed the question
whether Section 1442(a)(1) is available to federal agencies, as well
as federal officers.  /9/ The issue would benefit from "further study"
in the lower courts "before it is addressed by this Court," McCray v.
New York, 461 U.S. 961, 963 (1983) (Stevens, J.), and accordingly
certiorari should not be granted at this time.

   As evidenced by the fact that only two circuits have decided the
question, the issue of the applicability of Section 1442(a)(1) to
federal agencies does not arise with sufficient frequency to warrant
this Court's immediate attention.  The reason is clear:  Federal
agencies normally cannot be sued in their own name in state court.
This case is a good example.  Petitioners' state court suit against
NIH was plainly barred by sovereign immunity.  See, e.g., Dugan v.
Rank, 372 U.S. 609, 620-622 (1963).  There is a waiver of sovereign
immunity in the Administrative Procedure Act that might apply to the
activities of NIH, see 5 U.S.C. 702, but the waiver is expressly
limited to actions brought in federal court.  /10/ In addition, NIH --
like many federal agencies -- may not be sued in its own name.
Blackmar v. Guerre, 342 U.S. 512 (1952) (agency may not be sued eo
nomine in the absence of statute authorizing such suit).  /11/ Thus,
the question petitioners seek to present concerning Section 1442 has
arisen only because this suit was improperly filed in state court in
the first place, in violation of sovereign immunity, against the wrong
defendant.  Such a case is a peculiarly inappropriate vehicle in which
to attempt to address the question petitioners seek to raise.

   Finally, the court below correctly concluded that Section
1442(a)(1) authorizes federal agencies to remove cases to federal
court.  Section 1442(a)(1) has roots reaching back to 1815, when
Congress was concerned that States might interfere with enforcement of
a federally promulgated boycott of English goods.  /12/ See Willingham
v. Morgan, 395 U.S. 402, 405 (1969).  Thus, the statute is "an
incident of federal supremacy," and it protects "the very basic
interest in the enforcement of federal law through federal officials."
Id. at 406.

   Section 1442(a)(1) affords this protection by providing a federal
forum to rule on defenses raised in response to claims attacking
federal actions.  395 U.S. at 407.  As this Court stated in
Willingham, 395 U.S. at 407, "Congress has decided that federal
officers, and indeed the Federal Government itself, require the
protection of a federal forum.  This policy should not be frustrated
by a narrow, grudging interpretation of (Section) 1442(a)(1)."
(emphasis added).  See also NLRB v. Nash-Finch Co., 404 U.S. 138,
144-147 (1971) (extending to federal agency rule permitting suit by
the United States to enjoin enforcement of state court injunction).

   Section 1442(a)(1) would afford scant protection to the federal
government if it were read to preclude removal by federal agencies.
Such a narrow interpretation would enable plaintiffs to deprive the
government of a federal forum merely by naming only the agency, and
not its officials, as a defendant.  This expediency clearly would
contravene the policy enunciated in Willingham, for any relief granted
against the agency would bind its officials.  Cf. Fed. R. Civ. P.
65(d).  See also 14A C. Wirght, A. Miller & E. Cooper, Federal
Practice and Procedure Section 3727, at 457 (2d ed. 1985) (allowing
agencies to remove under Section 1442(a)(1) "is justified in terms of
the intent of Congress to protect the valid exercise of federal
authority;  a less inclusive construction would serve to frustrate
that end").

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   BARBARA L. HERWIG

   LOWELL V. STURGILL, JR.

      Attorneys

   SEPTEMBER 1990

   /1/ NIH and Tulane also argued that petitioners' suit was barred by
the Supremacy Clause and failed to state a cause of action under
Louisiana state law.  The court of appeals did not reach those
arguments.  Pet. App. A5.

   /2/ The court of appeals also rejected as irrelevant petitioners'
contention that they had met the requirements for standing under state
law, noting that the existence of Article III standing is governed by
federal law.  Pet. App. A11.

   /3/ The court of appeals correctly applied federal law to determine
whether petitioners had standing.  See Pet. App. A11 (citing cases).
See also Pennell v. City of San Jose, 485 U.S. 1 (1988) (applying
federal law to determine whether plaintiffs had Article III standing
to sue in federal court);  Secretary of State of Maryland v. Joseph H.
Munson Co., 467 U.S. 947, 953-54 n.2 (1984) (same);  Waller v.
Georgia, 467 U.S. 39, 43-44 & n.3 (1984) (same);  Tileston v. Ullman,
318 U.S. 44 (1943) (same).

   /4/ Petitioners improperly charge that in assessing their standing
the court of appeals ignored several of their claims.  Pet. 18.  This
charge is misguided, for it confuses allegations regarding legal
theories of recovery with allegations regarding the injury for which
recovery is sought.  The latter were properly the focus of the court
of appeals' analysis.  See Los Angeles v. Lyons, 461 U.S. 95, 103
(1983);  O'Shea v. Littleton, 414 U.S. 488, 499 (1974).

   /5/ This fact distinguishes this case from those involving feral
animals.  E.g., Japan Whaling Ass'n v. American Cetacean Soc'y, 478
U.S. 221 (1986).  The court of appeals was correct to conclude (Pet.
App. A6-A7) that such cases "provide scant support" for petitioners'
claim of injury.

   /6/ The court of appeals in this case was correct to focus, as did
the Fourth Circuit in IPPL, on petitioners' alleged interest in future
contact with the monkeys rather than on allegations of past injury.
Sierra Club v. Morton, 405 U.S. 727 (1972);  Animal Protection Inst.
of America v. Hodel, 860 F.2d 920, 923-924 (9th Cir. 1988);  Alaska
Fish & Wildlife Fed'n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933
(9th Cir. 1987), cert. denied, 485 U.S. 988 (1988);  Animal Welfare
Inst. v. Kreps, 561 F.2d 1002 (D.C. Cir. 1977).  This focus is
mandated by the Article III requirement that federal courts only
exercise jurisdiction when judicial relief would redress the injuries
alleged.  See, e.g., Duke Power Co. v. Carolina Environmental Study
Group, Inc., 438 U.S. 59, 74 (1978).

   /7/ Contrary to petitioners' assertion (Pet. 21), their request in
this case for custody of the monkeys does not distinguish the relief
sought here from that sought in IPPL.  Plaintiffs in IPPL also sought
custody of the monkeys.  799 F.2d at 937.

   /8/ Petitioners' Appendix omits several lines from this portion of
the court of appeals' opinion, which, as reported, reads as follows:

         The plaintiffs maintain that among their numbers are humane
      officers authorized under Louisiana law to remove animals being
      treated cruelly.  See La.Rev.Stat.Ann. Section 3:2431 (West
      1987).  The plaintiffs' complaint, however, makes no mention of
      this fact, does not assert a cause of action under Section
      3:2431, and fails to allege that any of statutory prerequisites
      to animal removal have been met.  See id. at Sections 3:2432-38.

895 F.2d at 1060.

   /9/ Contrary to petitioners' view (Pet. 11-13), the Fourth Circuit
did not "implicitly" hold in IPPL that agencies may not remove cases
to federal court under 1442(a)(1).  Plaintiffs in IPPL brought suit in
state court alleging both state and federal law causes of action.
IPPL, 799 F.2d at 936-937.  The case was therefore removable under
Section 1441, and NIH removed it without opposition.  Id. at 937.  The
Fourth Circuit dismissed the case, including the state law claims,
upon ruling that plaintiffs had not stated a federal claim.  Id. at
938-940.  The Court based dismissal not upon an interpretation of
Section 1442(a)(1), but rather on the fundamental principle of pendent
jurisdiction that "state claims should usually be dismissed if the
federal claims have been dismissed before trial." 799 F.2d at 941
(citing United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966)).

   /10/ See Aminoil, U.S.A., Inc. v. California State Water Resources
Control Bd., 674 F.2d 1227, 1233 (9th Cir. 1982) ("(T)he waiver of
sovereign immunity in section 702 is expressly limited to actions
brought 'in a court of the United States . . . .' The legislative
history demonstrates that section 702 was not intended to effect a
waiver of sovereign immunity for suits against the United States or
its officers in state courts.  'The consent to suit is also limited to
claims in the courts of the United States;  hence, the United States
remains immune from suit in state courts.' H.R. Rep. No. 94-1656, 94th
Cong., 2d Sess. 11 (1976) * * * .").

   /11/ Though improperly sued in its own name, NIH clearly had an
interest in this case sufficient to entitle NIH to remove it.  As the
court of appeals determined, NIH has "possessory, financial, and
research interests" in the monkeys that were threatened by this suit.
Pet. App. A13.  The court did not, in making this determination,
engage in impermissible factfinding.  See App. A and B, infra.  The
court had an ample factual basis to support its conclusion and did not
contradict any of the trial court's findings of fact.  Moreover, NIH's
interest in this case is clear from the provisions that establish
NIH's statutory mandate.  See 42 U.S.C. 281-284c.  In any event,
petitioners' fact-specific challenge to the court of appeals'
determination does not justify this Court's review.

   /12/ While earlier versions of the removal statute protected only
revenue officers, Section 1442(a)(1) was expanded during the 1948
recodification of Title 28 "to apply to all officers and employees of
the United States or any agency thereof." H.R. Rep. No. 308, 80th
Cong., 1st Sess. A134 (1947).

   APPENDIX