Syllabus

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 pre- pared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.

Syllabus

PRIMATE PROTECTION LEAGUE et al. v. ADMINISTRATORS OF TULANEEDUCATIONAL 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 Insti- tutes 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. 1442(a)(1), which per- mits 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 equiva- lent of a preliminary injunction barring NIH from euthanizing, and com- pleting 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 1442(a)(1).

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 pro- tection 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.

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 re- moval 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" de- scribed 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 offi- cer is necessarily an officer of the United States. However, when 1442(a)(1) was enacted in 1948, the relationship between certain inde- pendent 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 1442(a)(1)'s legislative history for the argument that Congress' intent to extend removal authority to agencies can be inferred from contempo- rary changes it made to the federal administrative structure that cre- ated, and selectively waived the sovereign immunity of, several inde- pendent agencies. Pp. 9-11.

(c) This construction of 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 offi- cers as defendants. The removal statute's nine incarnations preceding 1442(a)(1)'s 1948 enactment clearly reflect Congress' belief that even hostile state courts could make the determination of an agency's sover- eign 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. 1447(c), which declares that a removed case over which a dis- trict 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 1442(a)(1). Similarly, whether Tulane will be able to re- move the case as a "person acting under" an NIH officer is a mixed ques- tion 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.