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- Subject: PRIMATE PROTECTION LEAGUE v. TULANE ED. FUND, Syllabus
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-
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-
- NOTE: Where it is feasible, a syllabus (headnote) will be released, as
- is being done in connection with this case, at the time the opinion is
- issued. The syllabus constitutes no part of the opinion of the Court but
- has been prepared by the Reporter of Decisions for the convenience of the
- reader. See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
- SUPREME COURT OF THE UNITED STATES
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-
- Syllabus
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- INTERNATIONAL PRIMATE PROTECTION LEAGUE et al. v. ADMINISTRATORS OF TULANE
- EDUCATIONAL FUND et al.
-
- certiorari to the united states court of appeals for the fifth circuit
-
- No. 90-89. Argued March 20, 1991 -- Decided May 20, 1991
-
- Petitioners, organizations and individuals seeking the humane treatment of
- animals, filed suit in a Louisiana court to enjoin respondents, the
- Institutes for Behavior Resources (IBR), the National Institutes of Health
- (NIH), and the Administrators of the Tulane Educational Fund (Tulane), from
- using certain monkeys for federally funded medical experiments and to
- obtain custody over the animals. NIH removed the case to the Federal
- District Court pursuant to 28 U. S. C. MDRV 1442(a)(1), which permits
- removal when the defendant is "[a]ny officer of the United States or any
- agency thereof, or person acting under him, [in a suit challenging] any act
- under color of such office . . . ." The court granted the equivalent of a
- preliminary injunction barring NIH from euthanizing, and completing medical
- research on, some of the monkeys. However, the Court of Appeals vacated
- the injunction and dismissed the case, finding that petitioners lacked
- Article III standing to seek protection of the monkeys and that federal
- agencies have the power to remove cases under MDRV 1442(a)(1).
-
- Held:
-
- 1. Petitioners have standing to challenge the removal of the case.
- They have suffered an injury -- the lost right to sue in the forum of their
- choice -- that can be traced to NIH's action -- the removal. And, if they
- prevail, their injury will be redressed because the federal courts will
- lose subject matter jurisdiction and the case will be remanded. Although
- the Court of Appeals ruled that petitioners lacked standing to seek
- protection of the monkeys, the adverseness required for standing to contest
- the removal is supplied by petitioners' desire to prosecute their claims in
- state court. Pp. 3-5.
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- 2. Section 1442(a)(1) excludes agencies from the removal power. Pp.
- 5-14.
-
- (a) The section's grammar and language support the view that removal
- power is granted only to an "officer" either "of the United States" or of
- one of its agencies. If the phrase "or any agency thereof" described a
- separate category of entities endowed with removal power, it would have
- been separated from the preceding phrase by a comma in the same way that
- the subsequent "person acting under him" clause is set apart. In addition,
- the "acting under" clause makes little sense if the immediately preceding
- words -- which should contain the antecedent for "him" -- refer to an
- agency rather than to an individual. Nor would an agency normally be
- described as exercising authority "under color" of an "office." IBR
- mistakenly contends that the "agency thereof" language is redundant unless
- it signifies the agency itself because any agency officer is necessarily an
- officer of the United States. However, when MDRV 1442(a)(1) was enacted in
- 1948, the relationship between certain independent agencies and the United
- States Government was often disputed. Thus, it is more likely that
- Congress inserted the language to eliminate any doubt that officers of
- entities like the Tennessee Valley Authority had the same removal authority
- as other officers of the United States. Pp. 5-9.
-
- (b) Also unpersuasive is NIH's alternative basis for agency removal
- power. Reading the phrase "person acting under him" to refer to an agency
- acting under an officer is rather tortured. Moreover, in common usage the
- term "person" does not include the sovereign, especially where such a
- reading is decidedly awkward. And there is no support in MDRV 1442(a)(1)'s
- legislative history for the argument that Congress' intent to extend
- removal authority to agencies can be inferred from contemporary changes it
- made to the federal administrative structure that created, and selectively
- waived the sovereign immunity of, several independent agencies. Pp. 9-11.
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- (c) This construction of MDRV 1442(a)(1) does not produce absurd
- results. Congress could rationally have intended to have removability turn
- on the technicality of whether plaintiffs named an agency or only
- individual officers as defendants. The removal statute's nine incarnations
- preceding MDRV 1442(a)(1)'s 1948 enactment clearly reflect Congress' belief
- that even hostile state courts could make the determination of an agency's
- sovereign immunity, and, hence, agencies would not need the protection of
- federal removal. By contrast, the question of federal officers' immunity
- was much more complicated, since the determination whether a federal
- officer had acted ultra vires was fraught with difficulty and subject to
- considerable manipulation. Thus, even in 1948, Congress could have
- concluded that officers needed the protection of a federal forum in which
- to raise their federal defenses. Pp. 11-14.
-
- 3. This case must be remanded to state court under the terms of 28 U.
- S. C. MDRV 1447(c), which declares that a removed case over which a
- district court lacks subject matter jurisdiction "shall be remanded." The
- barriers to a state-court suit that NIH anticipates are not sufficiently
- certain to render a remand futile. Louisiana law will determine whether
- either NIH or an NIH officer will be deemed an indispensable party. Thus,
- it is not certain that the suit will be dismissed on the ground that NIH
- cannot be sued in state court or be removed by an NIH officer under MDRV
- 1442(a)(1). Similarly, whether Tulane will be able to remove the case as a
- "person acting under" an NIH officer is a mixed question of law and fact
- that should not be resolved in the first instance by this Court. Pp.
- 14-16.
-
- 895 F. 2d 1056, reversed and remanded.
-
- Marshall, J., delivered the opinion of the Court, in which all other
- Members joined, except Scalia, J., who took no part in the decision of the
- case.
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