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 Writ Of Certiorari To The United States Court Of Appeals For The
Fifth Circuit
   Brief For Respondent National Institutes Of Health
            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statutory provision involved
   Statement
   Summary of argument
   Argument:
    I. Federal agencies may remove state court actions
       to federal court pursuant to 28 U.S.C. 1442(a)(1)
       A. The language of Section 1442(a)(1) may
          fairly be read to authorize removal by federal
          agencies
       B. Interpreting Section 1442(a)(1) to authorize
          removal by federal agencies is consistent
          with legislative history
       C. An interpretation of Section 1442(a)(1)
          that precluded removal by federal agencies
          would produce absurd results and should
          therefore be rejected
       D. Interpreting Section 1442(a)(1) to authorize
          removal by federal agencies accords with
          this Court's decisions concerning suits
          against the federal government
   II. Petitioners' arguments regarding res judicata
       and NIH's interest in this case are not before
       this Court and are in any event without merit
       A. The Fourth Circuit's decision in IPPL v.
          Institute for Behavioral Research does not
          preclude litigation of the removal issue in
          this case.
       B. NIH had a sufficient interest in this case to
          remove it
   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 was enterd on March 8, 1990
(Pet. App. A1-A15).  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, and was granted on November 26, 1990, limited
to the question whether 28 U.S.C. 1442(a) permits a federal agency to
remove a civil action from state court to federal court.  The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).
                     STATUTORY PROVISION INVOLVED
   28 U.S.C. 1442(a) provides, in pertinent part:
      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 revenue. STATEMENT
                          QUESTION PRESENTED
   Whether federal agencies may remove state court actions to the
federal courts pursuant to 28 U.S.C. 1442(a)(1).
   This case concerns the care and custody of macaque monkeys that
were the subject of experiments to determine whether the monkeys
recovered use of limbs after nerves to the limbs were severed.  The
experiements were conducted during 1981 by a private research facility
-- then called the "Institute for Behavioral Research," later the
"Institute for Behavior Resources" (IBR) -- under funding from the
National Institutes of Health (NIH).  The purpose of the experiments
was to gain information that could be used in rehabilitating human
patients with neurological damage.  Pet. App. A2.
   In September 1981, Maryland police officers executed a warrant at
the facility where the monkeys were then being kept and seized the
monkeys, acting upon allegations that the monkeys were being
mistreated.  Pet. App. A3.  Shortly thereafter, pursuant to a court
order, NIH assumed custody of the monkeys pending resolution of a
criminal complaint against Dr. Edward Taub, chief of IBR's Behavioral
Biology Center.  Id. at A3-A4;  IBR App. 6a-7a.  /1/ After that order
expired, NIH continued to act as the monkeys' principal custodian with
the consent and cooperation of IBR, the monkeys' owner.  Pet. App. A4;
 IBR App. 7a.  Throughout this period, NIH at its own expense housed
and fed the monkeys and provided them with routine veterinary care.
IBR App. 7a, 8a;  NIH App. 3a.
   In December 1981, petitioners and other plaintiffs filed an action
against IBR and NIH, among others, in the Circuit Court for Montgomery
County, Maryland.  The complaint alleged that the defendants had
violated Maryland animal cruelty laws and the federal Animal Welfare
Act, 7 U.S.C. 2131 et seq., and asked the court to grant plaintiffs
custody of the monkeys.  See International Primate Protection League
v. Institute for Behavioral Research, Inc., 799 F.2d 934, 937-938 (4th
Cir. 1986), cert. denied, 481 U.S. 1004 (1987).  NIH removed the case
to federal court without opposition, and then IBR moved to dismiss the
complaint for lack of standing.  799 F.2d at 938, 940.  The district
court granted the motion to dismiss on grounds of standing, and the
Fourth Circuit affirmed.  Id. at 937.
   In June 1986, while the Fourth Circuit case was pending, NIH
transferred the monkeys to Tulane University's Delta Regional Primate
Research Center in Covington, Louisiana (Delta Center).  Under NIH's
letter of agreement with the University, the Delta Center was to
"act() strictly as an aide to NIH in its role as . . . custodian (for
the monkeys)." IBR App. 8a;  NIH App. 1a.  NIH paid the Delta Center
for housing the monkeys and was reimbursed by IBR for a portion of
these costs.  IBR App. 8a;  NIH App. 3a.
   In December 1988, NIH announced plans to euthanize three of the
monkeys pursuant to the recommendation of a panel of independent
experts.  As part of the euthanasia procedure, which would involve
deep surgical anaesthesia, NIH planned to conduct humane, nonpainful
procedures by which it hoped to gain knowledge that could lead to
improvements in rehabilitation therapy for persons who have suffered
brain or spinal cord damage, strokes, or similar injuries.  Pet. App.
A4.
   Before NIH could carry out the euthanasia, petitioners sued NIH,
IBR, and the Administrators of the Tulane Educational Fund (Tulane) in
the Civil District Court for the Parish of Orleans in Louisiana.  Pet.
App. A30-A31.  Petitioners sought an order enjoining the enthanasia
and granting custody of the monkeys to petitioners or members of the
U.S. Congress.  Id. at A38-A39.  After the state court granted
petitioners' motion for a temporary injunction barring euthanasia of
the three monkeys (IBR App. 1a), 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).  J.A. 1, 16, 17.  /2/
   Petitioners moved to remand the case, arguing that the case had
been improperly removed.  J.A. 1-2.  NIH filed motions to dismiss the
case on the grounds that petitioners lacked Article III standing and
that their suit was barred by res judicata, the Supremacy Clause, and
sovereign immunity.  The district court denied both NIH's and
petitioners' motions.  Pet. App. A17, A18.
   Pending consideration of those motions, the district court issued a
temporary restraining order "enjoining the Administrators of the
Tulane Educational Fund, the National Institutes of Health, and their
agents, attorneys and servants, from inhumane treatment towards, or
euthanasia or other destruction" of the monkeys.  Pet. App. A16.  The
district court later refused to vacate its order when NIH objected
that the order had exceeded the twenty-day limit on temporary
restraining orders imposed by Federal Rule of Civil Procedure 65(b).
Pet. App. A4.
   NIH and Tulane appealed the district court's order to the United
States Court of Appeals for the Fifth Circuit, arguing that the order
had become the functional equivalent of a preliminary injunction
appealable under 28 U.S.C. 1292(a)(1).  Pet. App. A4.  On appeal, NIH
and Tulane argued that petitioners had not demonstrated a likelihood
of success warranting preliminary injunctive relief because they (1)
lacked Article III standing, (2) had failed to state a cause of action
under Louisiana law, and (3) were barred by the Supremacy Clause from
securing injunctive relief under state law against NIH's planned
research activities.  Id. at A5.
   The court of appeals agreed that petitioners lacked Article III
standing and accordingly did not address respondents' other arguments.
 Pet. App. A5-A11, A15.  /3/ The court rejected petitioners' argument
that the case was improperly removed.  Relying on Fifth Circuit
precedent, the court held that federal agencies are entitled to remove
state court actions pursuant to 28 U.S.C. 1442(a)(1).  Pet. App.
A12-A13 (citing Smith v. City of Picayune, 795 F.2d 482 (1986)).  The
court further held that NIH had a sufficient interest in this case to
invoke that provision.  Pet. App. A13-A15.
   A petition for rehearing was denied, Pet. App. A24-A25, and
petitioners filed a petition for certiorari presenting 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 standing.  This Court granted certiorari limited to the first
question.  111 S. Ct. 507 (1990).
                        SUMMARY OF ARGUMENT /4/
   1.a. Section 1442(a)(1) authorizes removal by "any officer of the
United States or any agency thereof." That language may reasonably be
read to authorize removal by any agency of the United States as well
as by any officer of the United States.  Contrary to petitioners'
contention, neither the word "persons" nor the word "him" used
elsewhere in the provision plainly indicates an intention to limit
those entitled to remove to natural persons.
   Even if this Court were to read the opening clause of Section
1442(a)(1) more narrowly -- as authorizing removal only by an officer
of the United States or by an officer of an agency of the United
States -- the present action would still be removable under a natural
reading of the second clause of Section 1442(a)(1).  That clause goes
on to authorize removal by a "person acting under" the federal
officer.  NIH is a "person acting under" such an officer, and
therefore properly invoked this provision in removing the action
brought against it in state court.
   Moreover, interpreting Section 1442(a)(1) to authorize removal by
federal agencies accords with the overall structure of the statute.
Section 1442 was designed to afford a comprehensive right of removal
in cases challenging the conduct of the federal government.  This
Court has accordingly recognized that Section 1442(a)(1) embodies
Congress's decision that "federal officers, and indeed the federal
government itself, require the protection of a federal forum."
Willingham v. Morgan, 395 U.S. 402, 407 (1969) (emphasis added).
Because the federal government acts largely through its agencies,
Section 1442(a)(1) should be construed to authorize them to remove
state court actions to the federal courts.
   b. The legislative history, though not decisive, supports our
construction of Section 1442(a)(1).  Although earlier removal
provisions were drafted with reference to federal officers, this
merely reflects the fact that, at the time of enactment, federal
officers, and not federal agencies, were being sued.  The significant
aspect of the history of these various removal provisions is that each
was founded on the need to "maintain the supremacy of the laws of the
United States." Colorado v. Symes, 286 U.S. 510, 517 (1932).  In
contrast to earlier provisions, Section 1442 was enacted at a time
when numerous federal agencies could be sued in state courts.  The
extension of the right of removal to federal agencies in the language
of Section 1442(a)(1) reflected a logical response to this
development.
   c. Construing Section 1442(a)(1) to authorize removal by federal
agencies is necessary to avoid absurd results that would flow from a
contrary interpretation.  In this case, for example, the officers of
NIH would be prevented from removing this case even though they were
expressly subject to the injunctive relief sought and obtained by
petitioners.  Congress could not have intended the availability of a
federal forum to turn on petitioners' selection of NIH as a defendant,
rather than its officers, particularly when petitioners sought relief
against the officers.  Petitioners have suggested no plausible reason
why Congress would have wanted to afford a right of removal to federal
officers, while denying such a right to federal agencies.  Their
particular brand of literalism ultimately makes no sense.
   d. As this case also shows, in many contexts there is no meaningful
distinction between actions by an agency and actions by an officer of
the agency.  This Court has recognized as much on at least two
occasions.  Both cases, like this one, concern the circumstances under
which federal agencies can be sued.  Similarly, Congress in several
statutes has waived sovereign immunity to certain actions brought in
state court and expressly permitted such actions to name either
agencies or officers as defendants.  Congress certainly did not intend
the removal of these suits to turn on the fortuity of which entity was
named.
   2. Petitioners' arguments that (1) the issue of removal in this
case is res judicata and (2) NIH lacked a sufficient interest in this
case to remove it are beyond the scope of this Court's grant of
certiorari and in any event are without merit.  The removal issue
under Section 1442(a)(1) was neither raised nor decided in the Fourth
Circuit decision on which petitioners' res judicata argument relies.
Their insufficient-interest argument is defeated by their own decision
to name NIH as a defendant and to base their entire complaint on
alleged misconduct by NIH.  In addition, both the record in this case
and NIH's statutory mandate show that NIH has a vital interest in this
case.
                               ARGUMENT
   I. FEDERAL AGENCIES MAY REMOVE STATE COURT ACTIONS TO FEDERAL COURT
PURSUANT TO 28 U.S.C. 1442(a)(1)
   A. The Language of Section 1442(a)(1) May Fairly Be Read to
Authorize Removal by Federal Agencies
   NIH invoked Section 1442(a)(1) to remove to federal court the suit
that petitioners brought against it in Louisiana state court
challenging NIH's care and custody of a group of macaque monkeys.
Section 1442 provides in relevant part:
         (a) 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 * * *.
The question is whether this provision may be invoked by federal
agencies.
   We believe that a natural reading of the statutory language leads
to the conclusion that Section 1442(a)(1) may be relied upon by
federal agencies as well as federal officers.  There are two routes to
this destination.  The first route relies on the opening clause of
Section 1442(a)(1), which authorizes removal by "(a)ny officer of the
United States or any agency thereof." 28 U.S.C. 1442(a)(1) (emphasis
added).  NIH is an agency of the United States, see 42 U.S.C. 202,
281(a);  28 U.S.C. 451, and therefore may remove an action brought
against it in state court.  See, e.g., IMFC Professional Servs. of
Florida, Inc. v. Latin American Home Health, Inc., 676 F.2d 152, 156
(5th Cir. 1982).
   We fully recognize that this is by no means the only possible
reading of the opening clause.  The phrase "or any agency thereof" may
alternatively be read as part of the prepositional phrase that
precedes it, so that the clause authorizes removal by an "officer of
the United States" or by an "officer of * * * any agency thereof."
See, e.g., Lovell Mfg. v. Export-Import Bank, 843 F.2d 725, 733 (3d
Cir. 1988).  For the reasons set forth below, we believe that the
Fifth Circuit correctly resolved this ambiguity in favor of the former
reading, which is consistent with the statute's purpose of affording
"the federal government * * * the protection of a federal forum."
Willingham, 395 U.S. at 407.
   If this Court disagrees with that interpretation, a natural reading
of the second clause of Section 1442(a)(1) still permits NIH to remove
this action.  By its terms, the second clause authorizes removal by a
"person acting under" an officer of the United States.  The activities
of NIH are subject to the direction and control of the Director of
NIH, an officer of the United States, see 42 U.S.C. 282(a), who in
turn answers to the Secretary of Health and Human Services (ibid.) NIH
is thus a "person acting under" a federal officer, and accordingly is
expressly authorized to remove an action under Section 1442(a)(1).
   Since every executive agency acts under some officer of the United
States, this reading of Section 1442(a)(1) would lead to the general
conclusion that such agencies -- as well as their officers -- may rely
on the statute to remove actions to federal court.  This result does
not prove too much, but instead proves just enough.  It is the result
suggested by the purpose of the statute, see pp. 16-21, infra;  since
it also rests on a natural reading of the statutory text, that reading
should be adopted by this Court.
   Contrary to petitioners' contention (Pet. Br. 9-10), Congress's use
of the word "persons" to refer to those entitled to remove does not
indicate that only natural persons may invoke Section 1442(a)(1).  In
fact, the general rule is that the meaning of "person" is not confined
to natural persons.  See 1 U.S.C. 1.  The precise scope of the term
depends on its context:  "The word 'person' * * * is not a term of art
with a fixed meaning wherever it is used." Pfizer Inc. v. India, 434
U.S. 308, 315 (1978).  /5/ Thus, the Court has interpreted the word
"person" in the United States Code to include governmental agencies.
See, e.g., Jefferson County Pharmaceutical Ass'n Inc. v. Abbott
Laboratories, 460 U.S. 150, 154-170 (1983) (purchases by state public
corporation and other state instrumentalities subject to
Robinson-Patman Anti-Discrimination Act, 15 U.S.C. 13(a) and (f));
see also Estate of Wycoff v. Commissioner, 506 F.2d 1144, 1151 (10th
Cir. 1974) (United States a "person" for purposes of federal tax code
provision);  Ruhl v. Railroad Retirement Bd., 342 F.2d 662, 666 (7th
Cir.) (Department of Army and other "governmental bodies" are
"person(s)" under Railroad Retirement Act of 1937, 45 U.S.C. 228b(a)),
cert. denied, 382 U.S. 836 (1965).  /6/ In other settings, the Court
has reached a contrary conclusion.  See, e.g., Will v. Michigan Dep't
of State Police, 109 S. Ct. 2304 (1989).  The point is this:  the use
of the word "persons" in Section 1442(a) does not, as petitioners
beguilingly suggest, inexorably limit the scope of the statute to
individuals.  /7/
   Indeed, the remainder of Section 1442(a) strongly suggests that the
"persons" who may remove an action under that Section are not limited
to natural persons.  Included among the listed "persons" who may
remove an action under Section 1442(a) is "(a) property holder whose
title is derived from (an officer of the United States)." 28 U.S.C.
1442(a)(2).  Such property holders are obviously not limited to
natural persons, but include other entities that might hold property,
such as corporations, partnerships, and trusts.  The same word
"persons" in Section 1442(a) surely cannot mean one thing when read
with subsection 1442(a)(2) (where it plainly includes non-natural
persons) and another when read with subsection 1442(a)(1).
   Petitioners similarly err in relying on the presence in Section
1442(a)(1) of the pronoun "him." See Pet. Br. 10.  /8/ The masculine
form of the pronoun is commonly used to refer to entities denominated
elsewhere in a statute as "persons." For example, Section 4(a) of the
Clayton Act authorizes private actions by "any person who shall be
injured in his business or property" and provides for recovery of
"threefold the damages by him sustained," 15 U.S.C. 15(a) (emphasis
added).  /9/ Any argument that this wording limits those entitled to
sue to natural persons is defeated by Section 1(a) of the Act, which
defines "person" to include corporations and associations, 15 U.S.C.
12(a), and by this Court's holding in Pfizer, supra, that the term
"person" also includes a foreign government.  See also Chattanooga
Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 396-397 (1906).
   Petitioners' final argument in support of the "plainness" of their
reading of Section 1442(a)(1) is that Congress could have drafted the
provision more clearly to permit removal by federal agencies.  Pet.
Br. 9.  This argument is self-defeating.  Congress likewise could have
drafted the provision more clearly to prohibit such removal, for
example, by using the term "individuals" instead of "persons" to
describe those entitled to removal under the provision.  Petitioners'
argument that Congress could have drafted the statute more clearly
merely confirms the ambiguity of the language that Congress did enact.
 Cf. Young v. Community Nutrition Institute, 476 U.S. 974, 980-981
(1986).
   Petitioners' arguments as to the purported "plainness" of Section
1442(a)(1) suffer from a more fundamental deficiency.  While we
certainly agree that plain language should be given its plain meaning,
the proper construction of Section 1442(a)(1) is not readily apparent
from the text alone.  In such a case, the statute must be read as a
whole and in light of its purpose.  E.g., K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988).  In the context of this very statute,
the Court has specifically warned that the statutory purpose "should
not be frustrated by a narrow, grudging interpretation of section 1442
(a)(1)." Willingham, 395 U.S. at 407.  See also Symes, 286 U.S. at 517
(Section 1442 should be "liberally construed to give full effect to
the purposes for which it was enacted").  Under these principles,
Section 1442(a)(1) should be interpreted -- as a natural reading of
its text permits -- to authorize removal by federal agencies.
   Despite its title, the scope of Section 1442 clearly is not limited
to actions against federal officers.  /10/ Section 1442 expressly
allows former officers and persons who hold title under federal
officers to invoke the provision.  28 U.S.C. 1442(b), 1442(a)(2).
Beyond this, subsections (a)(1), (a)(3), and (a)(4) broadly authorize
removal of state court suits challenging actions of the Executive, the
Judiciary, and the Legislature.  The comprehensive reach of Section
1442 -- covering all three branches, former officers, and persons
acting under officers -- strongly suggests that Congress intended to
allow removal of the broad array of governmental actions taken under
color of office.  /11/
   That intention has guided this Court's decisions construing Section
1442 and its statutory predecessors.  The Court's definitive
description of the purpose of such provisions remains that set forth
in Tennessee v. Davis, 100 U.S. 257, 263 (1880):
      (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 government is
      powerless to interfere at once for their protection, -- if their
      protection must be left to the action of the State courts, --
      the operation of the general government may at any time be
      arrested at the will of one of its members.
A century later, the Court relied on this same passage in
reemphasizing "the need to safeguard the exercise of legitimate
federal authority." Arizona v. Manypenny, 451 U.S. 232, 241 n.16
(1981).  See also Mesa v. California, 489 U.S. 121, 126 (1989)
(quoting Tennessee v. Davis, supra).
   Section 1442(a)(1) should not, consistent with the comprehensive
scope of Section 1442 as a whole, be read to exclude removal of
actions against federal agencies.  Agencies, as they are defined for
purposes of title 28, constitute a significant portion of the
government and virtually the entire executive branch.  /12/ Thus, most
"officers of the United States" within the meaning of Section
1442(a)(1) are also "officers of an() agency." /13/ Since an agency
can act only through its members, every action of an agency officer
under color of office is in some sense "agency action," and therefore
arguably affords the basis for a suit against the agency.
Interpreting Section 1442(a)(1) to preclude removal of state court
challenges to such actions would defeat the obvious purpose of the
provision.
   Petitioners nonetheless argue (Pet. Br. 16-17) that reading Section
1442(a)(1) to permit removal by federal agencies would "broaden
removal jurisdiction far beyond original jurisdiction." This is both
incorrect and irrelevant.  It is incorrect because agencies, like
officers, may invoke Section 1442(a)(1) only if they can allege a
federal defense to the action sought to be removed.  Mesa, 489 U.S. at
125-134.  This requirement ensures that cases removed by agencies will
normally require resolution of a federal issue, thereby fulfilling the
purpose for which the right to removal was conferred.  Moreover,
petitioners' assumption that the scope of removal jurisdiction must be
coextensive with original jurisdiction is belied by the existence of
Section 1442.  Under 28 U.S.C. 1441, federal courts already have
removal jurisdiction over any suit as to which they could assert
original jurisdiction.  Section 1442 "serves to overcome the
'well-pleaded complaint' rule which would otherwise preclude removal
(under Section 1441) even if a federal defense were alleged." Mesa,
489 U.S. at 136.  /14/
   Similarly beside the point is petitioners' argument (Pet. Br.
17-19) that "(t)his case presents issues of state law that are within
the peculiar province of the Louisiana state courts." Every case
removed under Section 1442 is based on state law;  otherwise, it would
have been removable under Section 1441.  This is as true for cases
removed by federal officers as it is for those removed by federal
agencies.  Petitioners' argument thus provides no basis for
interpreting Section 1442(a)(1) to preclude removal by agencies.  That
was made clear by this Court long ago:  "Nor is it any objection that
questions are involved which are not all of a Federal character.  If
one of the latter exist, if there be a single such ingredient in the
mass, it is sufficient.  That element is decisive upon the subject of
(removal) jurisdiction." The Mayor v. Cooper, 73 U.S. (6 Wall.) 247,
252 (1868) (quoted in Mesa, 489 U.S. at 129).
   B. Interpreting Section 1442(a)(1) to Authorize Removal by Federal
Agencies Is Consistent with Legislative History
   The current version of Section 1442 was enacted in 1948 as part of
a comprehensive revision and codification of the Judicial Code.
Willingham, 395 U.S. at 406.  As the Revision Notes to Section 1442
indicate, subsection (a)(1) derived from Section 76 of the prior Code,
28 U.S.C. 76 (1940), which was "limited to revenue officers engaged in
the enforcement of the criminal or revenue laws." 28 U.S.C. 1442
Revision Notes.  The earlier provision, according to the Notes, was
"extended to apply to all officers and employees of the United States
or any agency thereof." Ibid.  This description, which represents the
only legislative history that specifically addresses the scope of
Section 1442(a)(1), suffers from the same ambiguity as the statutory
language to which it refers.  /15/ The historical context in which
Section 1442(a) was enacted, however, supports interpreting that
provision to allow removal by federal agencies.
   Section 1442(a) is the latest of a series of removal provisions
applicable to suits challenging the conduct of the federal government.
 In 1815, Congress enacted a temporary measure to enforce a trade
embargo with England over the opposition of the New England states.
/16/ This provision was followed by passage of the Force Act of 1833
in response to South Carolina's attempt to thwart enforcement of
federal revenue laws.  /17/ The Force Act was gradually expanded
during the Civil War, Reconstruction, and on into the twentieth
century to authorize removal by a broadening range of federal
officials.  Willingham, 395 U.S. at 404-405.  /18/
   In drafting these removal provisions, Congress referred to federal
officers because they, and not federal agencies, were the ones being
sued in state courts.  Throughout this period, state court suits
against federal officers were commonplace, while suits against
government agencies were rare.  /19/ As a formal matter, these suits
often named the officers in their personal capacity, even though they
typically complained of conduct carried out under color of office.
See, e.g., United States v. Lee, 106 U.S. 196, 210 (1882);  cf.
Stanley v. Schwalby, 147 U.S. 508, 512, 518 (1893).  The purpose of
this practice was to circumvent the doctrine of sovereign immunity,
which generally barred suits that named the United States or one of
its instrumentalities as a defendant.  /20/
   By 1948, when the current version of Section 1442 was enacted, the
legal landscape had changed.  Opportunities now existed to sue federal
agencies in state courts, since, by this time, numerous federal
agencies and federally controlled corporations were empowered "to sue
and be sued," often in either federal or state court.  /21/ Congress's
use of "sue and be sued" provisions, in turn, contributed to a
judicial "climate of opinion which * * * brought governmental immunity
from suit into disfavor." Keifer & Keifer v. Reconstruction Fin.
Corp., 306 U.S. 381, 391 (1939);  see also, e.g., Reconstruction Fin.
Corp. v. J.G. Menihan & Co., 312 U.S. 81 (1941);  Federal Housing
Admin. v. Burr, 309 U.S. 242, 246-250 (1940);  Federal Land Bank v.
Priddy, 295 U.S. 229, 235 (1935).  /22/
   Against this backdrop, it is not surprising that the scope of
Section 1442(a)(1) was expanded beyond officers of the United States
to include "any agency thereof" -- a logical response to the increased
exposure of federal agencies to state court suits.  Such an expansion
was necessary, moreover, in light of the historical purpose of Section
1442(a)(1).  That provision, like its "statutory forebears" (Mesa, 489
U.S. at 125), was "enacted to maintain the supremacy of the laws of
the United States." Symes, 286 U.S. at 517.  Though originating in
times of national crises, each provision reflected the broader
judgment that "federal officers, and indeed the federal government
itself, require the protection of a federal forum." Willingham, 395
U.S. at 407 (emphasis added).  Section 1442(a)(1) can only afford that
protection if it is construed -- as a natural reading of the text
permits -- to authorize removal by federal agencies.
   C. An Interpretation of Section 1442(a)(1) That Precluded Removal
By Federal Agencies Would Produce Absurd Results and Should Therefore
Be Rejected
   In deciding whether our reading or petitioners' reading of Section
1442(a)(1) is to be preferred, it is significant that petitioners'
reading would produce results squarely at odds with the purpose
underlying that provision.  See United States v. Brown, 333 U.S. 18,
27 (1948).
   For example, petitioners' interpretation would preclude removal in
this case merely because petitioners named NIH as a defendant rather
than the individuals against whom they sought and were granted relief.
 Although petitioners named NIH as the only federal defendant, they
requested, and obtained, an injunction against both NIH and its
"agents, attorneys, and servants" (Pet. App. A16).  The injunction
thus restrained actions by officers and employees of NIH "under color
of * * * office" (28 U.S.C. 1442(a)(1)), and exposed these individuals
to contempt sanctions if they took the prohibited actions.  Despite
its caption, therefore, petitioners' suit was "(a) civil action * * *
commenced in a State court against * * * officer(s) of the United
States" (28 U.S.C. 1442(a)(1)).  Congress surely did not intend
removal of this case to be precluded solely by virtue of petitioners'
artful pleading.
   Moreover, petitioners' naming of NIH as defendant was improper.
The general rule is that an agency cannot be sued in its own name
absent congressional authorization.  Blackmar v. Guerre, 342 U.S. 512,
514-515 (1952).  Congress granted no such authority here.  In
addition, petitioners' state court action was plainly barred by
sovereign immunity.  See, e.g., Dugan v. Rank, 372 U.S. 609 (1963).  A
waiver of sovereign immunity in the Administrative Procedure Act 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.  /23/ For these
reasons, interpreting Section 1442(a)(1) to bar removal in this and
similar case would reward plaintiffs for challenging actions of the
federal government through suits brought in the wrong court against
the wrong party.  Such an absurd result tips sharply against adopting
such an interpretation.
   The incongruous results that would flow from such an interpretation
are not limited to cases challenging agency activities that are immune
from state court review.  There are numerous governmental bodies --
many of which are "agenc(ies)" as that term is defined for purposes of
Section 1442(a)(1), see 28 U.S.C. 451, supra note 12 -- whose
operations may be the subject of state court attack pursuant to "sue
and be sued" clauses.  Some of these clauses provide for suits naming
the agency, others for suits against the head of the agency.  /24/
Nothing in the text of these various provisions suggests that Congress
intended to allow removal only with respect to suits of the latter
type.  /25/ Nor would such a result be logical.  As in this case,
state court suits for injunctive relief under any of these
sue-and-be-sued clauses would, if successful, bind both the agencies
and their officers.  Cf. Fed. R. Civ. P. 65(d).  /26/
   There is a third category of cases in which interpreting Section
1442(a)(1) to preclude removal by federal agencies would produce
absurd results.  In several major environmental statutes, Congress
has, under certain circumstances, waived the federal government's
sovereign immunity from state environmental laws.  /27/ These
provisions clearly contemplate state court suits against federal
"agenc(ies)" within the meaning of Section 1442(a)(1).  Many such
suits will no doubt allege exclusively state-law claims and therefore
fall outside the general removal provision, 28 U.S.C. 1441.
Nonetheless, these suits will invariably raise important and sensitive
issues regarding, for example, the scope of the waiver and the extent
to which state requirements have been preempted.  It is inconceivable
that Congress intended to confide the resolution of such issues
largely to the courts of the 50 States.  Cf. NLRB v. Nash-Finch Co.,
404 U.S. 138, 147 (1971) ("For the Federal Government and its
agencies, the federal courts are the forum of choice.").  /28/
   Moreover, in two of these environmental statutes -- the Clean Air
Act (42 U.S.C. 7418(a)) and the Clean Water Act (33 U.S.C. 1323(a)) --
Congress expressly subjected to state requirements not only every
"department, agency, or instrumentality" of the federal government but
also every "officer, agent, or employee thereof." If Section
1442(a)(1) were read to preclude removal by federal agencies, the
removability of most state court actions under these statutes would
rest exclusively in the hands of plaintiffs, since they would have the
choice of naming the agency or its head.  /29/
   In sum, interpreting Section 1442(a)(1) to authorize removal only
be federal officers would lead to results that are "at war" with the
purpose of the statute.  Cf. United States v. Campos-Serrano, 404 U.S.
293, 298 (1971).  The results of such an interpretation, moreover,
would be far-ranging, affecting every aspect of the government's
operation that is carried out through federal agencies.  Finally, such
an interpretation could significantly alter the balance of
federal-state relations and contribute to divisiveness in those
relations.  For these reasons, that interpretation should be rejected.
   D. Interpreting Section 1442(a)(1) To Authorize Removal By Federal
Agencies Accords With This Court's Decisions Concerning Suits Against
the Federal Government
   At bottom, the interpretation of Section 1442(a)(1) championed by
petitioners rests on a distinction between actions by officers of an
agency and actions by the agency itself -- a wholly artificial
distinction in this context.  As explained above, Congress has
eschewed such a distinction in certain statutes prescribing the
circumstances under which the operation of the federal government can
be judicially challenged.  This Court has likewise refused to draw
such a distinction where, as here, doing so would clearly thwart
congressional purpose.
   In Loeffler v. Frank, 486 U.S. 549, 551 (1988), the Court held that
"prejudgment interest may be awarded in a suit against the United
States Postal Service brought under Title VII of the Civil Rights Act
of 1964, * * * 42 U.S.C. 2000e et seq." The Court based this holding
on 39 U.S.C. 401(1), which empowers the Postal Service "to sue and be
sued in its official name." See Loeffler, 486 U.S. at 554-558.  The
Court rejected the argument that this provision did not apply in Title
VII suits, in which Congress required that "the head of the
department, agency, or unit * * * shall be the defendant" (42 U.S.C.
2000e-16(c)) (emphasis added).  486 U.S. at 562 n.8.  The fact that
the plaintiff properly named the head of the Postal Service did not
preclude him from enjoying the benefits of the provision authorizing
suits against the Postal Service "in its official name." Ibid.
   In rejecting the distinction between suits against an agency and
suits against the head of the agency, the Court in Loeffler relied on
FHA v. Burr, 309 U.S. 242 (1940).  In Burr, the Court interpreted the
"sue and be sued" clause applicable to the Administrator of the FHA to
authorize garnishment of the agency's assets.  Id. at 249-250.
Although Burr presented the "inverse situation" of that presented in
Loeffler -- i.e., the agency was the named defendant, and the statute
at issue referred to the agency head -- "the same logic applies.  * *
* (T)he acts of the named defendant are always chargeable as acts of
the person or entity" subject to the statute.  Loeffler, 486 U.S. at
563 n.8.
   A similar approach is warranted here.  The Court in Loeffler and
Burr was guided by the principle that the statute before it in each
case was to be construed broadly in light of its purpose.  Loeffler,
486 U.S. at 556;  Burr, 309 U.S. at 245.  So too here, the purpose of
Section 1442(a)(1) to afford the federal government the protection of
a federal forum "should not be frustrated by a narrow, grudging
interpretation." Willingham, 395 U.S. at 407.  As we have explained,
that purpose would clearly be thwarted by an interpretation that made
the availability of a federal forum depend on whether the suit named
the agency or its officers.  The distinction rejected in Loeffler and
Burr should also be rejected here.  /30/
   II. PETITIONERS' ARGUMENTS REGARDING RES JUDICATA AND NIH'S
INTEREST IN THIS CASE ARE NOT BEFORE THIS COURT AND ARE IN ANY EVENT
WITHOUT MERIT
   Petitioners advance two arguments that are unrelated to the
question on which this Court granted review and that are in any event
without merit.  They argue first (Pet. Br. 17-19) that the issue of
removal in this case is res judicata and, second (Pet. Br. 19-23),
that the court of appeals below improperly held that NIH had a
sufficient interest in this case to remove it.
   A. The Fourth Circuit's Decision In IPPL v. Institute for
Behavioral Research Does Not Preclude Litigation Of The Removal Issue
In This Case
   Petitioners contend (Pet. Br. 17-19) that litigation of the removal
issue in the present case is barred by the Fourth Circuit's decision
in IPPL v. Institute for Behavioral Research, 799 F.2d 934 (1986),
cert. denied, 481 U.S. 1004 (1987).  While petitioners invoke the
doctrine of res judicata, their contention -- that the issue of
removal jurisdiction was implicitly decided in IPPL -- actually rests
on the doctrine of collateral estoppel, or issue preclusion.  See
Kremer v. Chemical Construction Corp., 456 U.S. 461, 467 n.6 (1982).
True res judicata, or claim preclusion, does not apply in actions
dismissed for lack of jurisdiction, for in such actions the merits of
the claims are not addressed.  Hughes v. United States, 71 U.S. (4
Wall.) 232, 237 (1866);  18 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure Section 4436 (1981).  In any event,
petitioners' contention that litigation of the removal issue in the
present case is precluded is incorrect.
   The preclusive effect of a prior decision extends only to issues
that were "actually litigated and determined" and "essential to (the
prior) judgment." Cooper v. Federal Reserve Bank, 467 U.S. 867, 874
(1984).  Thus, a prior judgment deciding one issue of jurisdiction
does not preclude later litigation of a different jurisdictional
issue.  See, e.g., GAF Corp. v. United States, 818 F.2d 901, 913 (D.C.
Cir. 1987);  Dozier v. Ford Motor Co., 702 F.2d 1189, 1191 (D.C. Cir.
1983) (relitigation barred "at least to the extent appellant seeks to
base jurisdiction on (28 U.S.C. 1332).");  Stewart Securities Corp. v.
Guaranty Trust Co., 597 F.2d 240, 241 (10th Cir. 1979) ("the doctrine
of res judicata precludes a subsequent relitigation of the same
jurisdictional issue between the parties.") (emphasis added).
   The issue presented here -- whether NIH could remove a state court
suit under Section 1442(a) -- was neither raised nor necessarily
decided in IPPL.  In IPPL, petitioners presented a federal claim as
well as state-law claims.  The case was therefore removable under 28
U.S.C. 1141, and NIH removed it without opposition.  799 F.2d at 937.
Neither party raised the issue of removal under Section 1442, and the
court of appeals did not discuss it.  Rather, after dismissing
petitioners' federal claim, the court merely declined to exercise
pendent jurisdiction over the state law claims on the ground that
"state claims should usually be dismissed if the federal claims have
been dismissed before trial." Id. at 941 (citing United Mine Workers
of America v. Gibbs, 383 U.S. 715, 726 (1966)).  The Fourth Circuit's
decision to deny pendent jurisdiction cannot reasonably be interpreted
as an implicit ruling on an entirely separate issue of removal
jurisdiction that was not presented to the court.
   B. NIH Had A Sufficient Interest In This Case To Remove It
   Petitioners contend that NIH's interest in this case was too
attenuated for it to remove this case.  But petitioners do not dispute
that this suit was "commenced against" NIH for purposes of Section
1442(a)(1).  Nor do they dispute that NIH alleged federal defenses
that satisfied the "under color of * * * office" requirement of that
provision.  See Mesa, 489 U.S. at 129-134.  Thus, the legal basis for
petitioners' view that something more is required to invoke Section
1442(a)(1) is obscure;  they cite no statutory provision or case law
to support this view.  In any event, NIH plainly has a substantial
interest in this case.
   Petitioners' own conduct in this case defeats their contention that
NIH's interes in this case is insufficient.  They voluntarily named
NIH as a defendant in this case.  They devoted their complaint to
allegations of misconduct by NIH with regard to the care and custody
of the monkeys.  They repeat these allegations in the statement
section of their brief to this Court.  Finally, they have sought
injunctive relief directly against NIH, its employees, and its agents.
   In addition, NIH's interest in this case is clear from its
statutory mandate.  42 U.S.C. 281-284c, 289-290a.  The research by IBR
that sparked the present controversy was "research * * * supported by
(NIH)" (42 U.S.C. 241, 282(b)(3)) that must comply with regulations
and guidelines promulgated by the Director of NIH governing, among
other things, the care and custody of research animals (42 U.S.C.
289-289b, 289d).  The planned euthanasia that petitioners have sought
to enjoin likewise is subject to these guidelines and is designed to
provide the type of scientific information that NIH was created to
foster.  NIH clearly has a vital interest in any suit that, like this
one, seeks to prevent it from carrying out its statutory mission.
/31/
                              CONCLUSION
   The judgment of the court of appeals should be affirmed.
   Respectfully submitted.
   KENNETH W. STARR
      Solicitor General
   STUART M. GERSON
      Assistant Attorney General
   JOHN G. ROBERTS, JR.
      Deputy Solicitor General
   RICHARD H. SEAMON
      Assistant to the Solicitor General
   BARBARA L. HERWIG
   MATTHEW M. COLLETTE
      Attorneys
   FEBRUARY 1991
   /1/ "IBR App." refers to the appendix to the brief in opposition to
certiorari filed by respondent Institutes for Behavior Resources.
"NIH App." refers to the appendix to the brief in opposition to
certiorari filed by respondent National Institutes of Health.
   /2/ Petitioners sought injunctive relief against the "agents and
officers of NIH, IBR, and the administrators of the Tulane Education
Fund." Pet. App. A30-A32.  The state court's temporary restraining
order named only the administrators, "their agents, attorneys and
servants" (IBR App. A), because at the time of issuance the other
defendants had not been served.
   /3/ The appendix to the petition omits several lines from the
relevant portion of the court of appeals' decision.  Compare Pet. App.
A8 with 895 F.2d at 1060 (text accompanying note 4).
   /4/ As an initial matter, it is not clear that the Court can
properly decide the only question on which it granted certiorari.  The
court of appeals below ruled -- correctly, in our view -- that
petitioners lacked Article III standing to maintain their suit.  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.");
see id. at A5-A11.  Although petitioners sought review of that
question, see Pet. i, this Court limited its grant of certiorari to
the court of appeals' ruling on removal.  111 S. Ct. 507 (1990).  In
the present posture of the case, therefore, petitioners lack Article
III standing.  If they lack Article III standing, then they lack
Article III standing to litigate further before this or any other
federal court, except to seek review of the standing ruling and until
they have secured such review.  See Bender v. Williamsport Area School
Dist., 475 U.S. 534, 541 (1986);  United States v. Corrick, 298 U.S.
435, 440 (1936).  In particular, given that petitioners lack Article
III standing, they have no standing to litigate and secure a decision
from this Court on the propriety of removal, since this Court must
satisfy itself that the requirements of Article III -- including
standing -- have been met.  See Bender, 475 U.S. at 541.
   This is not an academic quibble.  One purpose of standing is to
ensure the concrete adverseness necessary to proper presentation of
issues, see Bender, 475 U.S. at 542.  Yet here the Court would be
resolving the removal question in a context in which the court below
specifically found the injury in fact necessary to such adverseness to
be lacking, Pet. App. A5-A11;  see Valley Forge Christian College v.
Americans United for Separation of Church & State, 454 U.S. 464, 486
(1982) -- a finding this Court has declined to review.  Given the
unreviewed decision on standing by the court below, any decision by
this Court on removal will be rendered in the context of a case that
is outside the bounds of Article III.  While this Court has
jurisdiction to decide that cases are not properly within Article III,
it is difficult to see how the Court can accept the proposition that a
case before it is not within Article III -- the effect of leaving the
standing decision below unreviewed -- and nonetheless go on to issue
an opinion on some other ground.
   /5/ On some occasions, the Court has said "in common usage, the
term 'person' does not include the sovereign (and) statutes employing
the phrase are ordinarily construed to exclude it." United States v.
Cooper Corp., 312 U.S. 600, 604 (1941);  accord United States v. Mine
Workers, 330 U.S. 258, 275 (1947).  In so stating, however, the Court
has emphasized that there is "no hard and fast rule of exclusion,"
Cooper, 312 U.S. at 604-605.  In addition, the Court has more recently
indicated that the rule normally should apply only "where the statute
imposes a burden or limitation, as distinguished from conferring a
benefit or advantage," Wilson v. Omaha Indian Tribe, 442 U.S. 653, 667
(1979), and that "much depends on the context" (ibid.).  Accord 3 C.
Sands, Sutherland Statutes and Statutory Construction Section 62.02,
at 72 (4th ed. 1974).  The rule thus should not be applied in
interpreting Section 1442(a)(1), which does not impose a burden or
limitation but instead was enacted to afford the federal government
the benefit of a federal forum for challenges to actions "under color
of * * * office."
   /6/ See also Monell v. New York City Dep't of Social Servs., 436
U.S. 658 (1978) (municipality is a "person" under 42 U.S.C. 1983);
Georgia v. Evans, 316 U.S. 159, 161 (1942) (holding that State was a
"person" entitled to sue under Section 7 of Sherman Act and rejecting
argument that "the word 'person' * * * could not include a
governmental body");  Ohio v. Helvering, 292 U.S. 360, 370-371 (1934)
(state agencies are "person(s)" under federal liquor tax laws);
Stanley v. Schwalby, 147 U.S. 508, 517 (1893) (United States is a
"person" under state laws, even if otherwise immune from their
operation);  Employment Dev. Dep't v. United States Postal Serv., 698
F.2d 1029, 1032-1033 (9th Cir. 1983) (Postal Service a "person" under
state law provision);  cf. United States v. Yellow Cab Co., 340 U.S.
543, 553-556 (1951) (in Federal Tort Claims Act actions, United States
subject to being impleaded under Fed. R. Civ. P. 14, providing for
service of process upon a "person" not a party to main action).
   /7/ That Congress deemed it necessary in the Administrative
Procedure Act, 5 U.S.C. 551 et seq., expressly to exclude "an agency"
from the definition of "person" obviously does not indicate, as
petitioners would have it, that Congress drew a sharp "distinction
between 'persons' and 'agencies'" elsewhere in the Code (Pet. Br. 9).
On the contrary, it seems more reasonable to infer that Congress
believed that "person" otherwise would be construed to include an
agency, in the absence of Congress's expression of a contrary intent.
   /8/ Petitioners' argument on this score only applies to our reading
of the first clause of Section 1442(a)(1) as affording agencies a
right of removal.  Even if petitioners are correct in the significance
they ascribe to the use of the pronoun "him," an agency may still
remove an action under Section 1442(a)(1) as a "person acting under"
an officer of the United States.  Only if petitioners are correct both
in their limitation of "persons" and "him" to natural persons can they
prevail.
   /9/ See also, e.g., Robinson-Patman Anti-Discrimination Act, 15
U.S.C. 13(b) ("nothing herein contained shall prevent a seller
rebutting the prima-facie case thus made by showing that his lower
price or the furnishing of services or facilities * * * was made in
good faith") (emphasis added);  Federal Water Pollution Control Act,
33 U.S.C. 1321(b)(5) (requiring "(a)ny person in control of a vessel
or of an onshore facility or an offshore facility" to notify
government of oil spill "as soon as he has knowledge of" spill)
(emphasis added);  33 U.S.C. 1321(a)(7) (defining "person" to include
non-natural entities).
   /10/ Here, as is often the case, the statutory title is not a
reliable guide to interpretation.  See, e.g., United States v. Minker,
350 U.S. 179, 185 (1956);  Brotherhood of R.R. Trainmen v. Baltimore &
O. R.R., 331 U.S. 519, 528-529 (1947);  United States v. Union Pac.
R.R., 91 U.S. 72, 82 (1875).
   /11/ Considering only the structure of Section 1442(a), it might be
thought that subsection (a)(1) concerns solely the executive branch,
since subsections (a)(3) and (a)(4) address the judicial and
legislative branches, respectively.  From the history of Section 1442,
however, it is clear that "subsections (2)-(4) of Section 1442(a) are
largely the 'residue' of the pre-1948, more limited removal statutes
now entirely encompassed by the general removal provision of the first
clause of subsection (1)." Mesa v. California, 489 U.S. 121, 134
(1989).  The retention of earlier, essentially redundant provisions in
subsections (a)(2)-(a)(4) further suggests Congress's intention in
enacting Section 1442 to afford a comprehensive right of removal with
respect to state suits challenging all governmental actions.
   /12/ 28 U.S.C. 451 provides in relevant part:
   As used in this title:
                      * * * * *
         The term "agency" includes any department, independent
      establishment, commission, administration, authority, board or
      bureau of the United States or any corporation in which the
      United States has a proprietary interest, unless the context
      shows that such term was intended to be used in a more limited
      sense.
   /13/ Petitioners read Section 1442(a)(1) to permit removal by "an
officer of the United States or an officer of an agency of the United
States" (Pet. Br. 9).  Nowhere, however, do petitioners explain the
distinction they purport to discern between officers of the United
States and officers of agencies of the United States.  We are not
aware of any statute or case law that draws such a distinction.  By
the same token, numerous statutes addressing suits by or against the
Executive Branch draw no such distinction.  For example, 28 U.S.C.
1345 grants original jurisdiction to district courts of actions
"commenced by the United States, or by any agency or officer thereof."
Other provisions throughout the U.S. Code employ the same or similar
language and do not distinguish officers of the United States from
officers of agencies.  These provisions suggest that, at least for
purposes of Section 1442(a)(1), all officers of agencies of the United
States are officers of the United States.  Petitioners' interpretation
of Section 1442(a)(1) thus appears to render the phrase "any agency
thereof" superfluous, in violation of a cardinal principle of
statutory construction.  2A C. Sands, Sutherland Statutes and
Statutory Construction Section 46.06 (4th ed. 1974).
   /14/ See also Willingham, 395 U.S. at 406 (Section 1442(a)(1)
provides for removal of a suit involving "any act 'under color' of
federal office, regardless of whether the suit could originally have
been brought in federal court") (emphasis added);  see also 14A C.
Wright, A. Miller & E. Cooper, Federal Practice and Procedure Section
3727, at 459 (1981) (removal statute "may be exercised even though the
action might not have been brought initially in a federal court.");
1A Moore's Federal Practice Paragraph 0.164, at 385 (2d ed. 1986).
   /15/ Contemporaneous commentary on the 1948 codification suggests
that Section 1442(a)(1) was understood to authorize removal by federal
agencies.  See H. Wechsler, Federal Jurisdiction and the Revision of
the Judicial Code, 13 Law & Contemp. Probs. 216, 220-221 (1948)
(arguing that federal courts should have original, in addition to
removal, jurisdiction over "actions against agencies or officers of
the United States based on a claim of illegality in conduct under
color of their office").  See also H. Hart & H. Wechsler, The Federal
Courts and the Federal System 1147-1150 (1953) (discussing Section
1442(a)(1) as designed "for the protection of federal officers and
agencies and persons acting under them").
   /16/ The Act of Feb. 4, 1815, ch. 31, Section 8, 3 Stat. 198,
"allowed federal officials involved in the enforcement of the customs
statute to remove to the federal courts any suit or prosecution
commenced because of any act done 'under color' of (office)."
Willingham, 395 U.S. at 405.
   /17/ The Act of Mar. 2, 1833, ch. 57, Section 3, 4 Stat. 633,
provided for removal of any suit or prosecution commenced against "any
officer of the United States, or other person, for or on account of
any act done under the revenue laws of the United States or under
colour thereof."
   /18/ Congress passed another temporary measure during the Civil
War, allowing "any officer, civil or military" to remove any suit for
any "wrongs done or committed * * * during the present rebellion"
under color of federal law.  Act of Mar. 3, 1863, ch. 81 Section 5, 12
Stat. 756;  see The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 (1868).
This statute expired shortly after the Civil War, bu the Force Bill
continued in effect, and was expanded to apply to collectors of the
internal revenue (Act of Mar. 7, 1864, ch. 20, Section 9, 13 Stat.
17), to persons acting under color of the Elective Franchise Act (Act
of Feb. 28, 1871, ch. 99, Section 13, 16 Stat. 437-438 (repealed
1894)), to officers of either House of Congress (Act of Mar. 3, 1875,
ch. 130, Section 8, 18 Stat. 401), to court officers (Act. of Aug. 23,
1916, ch. 399, 39 Stat. 532), to soldiers in the military service (Act
of Aug. 29, 1916, ch. 418, Section 3, Art. 117, 39 Stat. 669), to
prohibition officers (National Prohibition Act of 1919, tit. II, ch.
85, Section 28, 41 Stat. 316 (repealed 1935)), and finally to "(a)ny
officer of the United States or any agency thereof, or person acting
under him" (Act of June 25, 1948, ch. 646, Section 1442, 62 Stat.
938).  See generally F. Frankfurter & J. Landis, The Business of the
Supreme Court 11 n.22, 61-69 (1928).
   /19/ See, e.g., Olney v. Arnold, 3 U.S. (3 Dall.) 308 (1796);  Otis
v. Bacon, 11 U.S. (7 Cranch) 589 (1813);  Crowell v. McFadon, 12 U.S.
(8 Cranch) 94 (1814);  Meigs v. M'Clung's Lessee, 13 U.S. (9 Cranch)
11 (1815);  Elliott v. Swartwout, 35 U.S. (10 Pet.) 137 (1836).  See
generally Final Report of the Attorney General's Committee on
Administrative Procedure, S. Doc. No. 8, 77th Cong., 1st Sess. 80-81
(1941);  Note, Developments in the Law -- Remedies Against the United
States and Its Officials, 70 Harv. L. Rev. 827, 840-842 (1957)
(discussing actions against government corporations);  Gibbons, The
Eleventh Amendment and State Sovereign Immunity:  A Reinterpretation,
83 Colum. L. Rev. 1889, 1943, 1943 & n.296, 1948 n.320 (1983)
(discussing actions against government officers).
   /20/ See, e.g., Minnesota v. United States, 305 U.S. 382, 387-389
(1939);  Kendall v. United States, 37 U.S. 524, 610-611 (1838);  Bank
of the United States v. Planters Bank, 22 U.S. (9 Wheat.) 904 (1824);
cf. Olson v. United States Spruce Prod. Co., 267 U.S. 462, 466-467
(1929);  Sloan Shipyards Corp. v. United States Shipping Board
Emergency Fleet Corp., 258 U.S. 549 (1922).  Suits naming individual
officers could still be defeated if the United States or an official
who was not named was determined to be an indispensable party.  See,
e.g., Minnesota v. United States, 305 U.S. at 386-388;  Webster v.
Fall, 266 U.S. 507, 510 (1929);  Gnerich v. Rutter, 265 U.S. 388,
391-392 (1924);  Warner Valley Stock Co. v. Smith, 165 U.S. 28, 34
(1897).
   /21/ See, e.g., 52 Stat. 72, 73 (1938) (Federal Crop Insurance
Corporation);  50 Stat. 888, 890 (1937) (U.S. Housing Authority);  50
Stat. 697, 698 (Southeastern University);  50 Stat. 527 (1937)
(Farmers Home Corporation);  49 Stat. 684, 722 (1935) (Federal Housing
Administrator);  48 Stat. 1246, 1256 (FSLIC);  48 Stat. 58, 60 (1933)
(Tennessee Valley Authority);  47 Stat. 725, 735 (1932) (Federal Home
Loan Bank);  47 Stat. 5, 6 (1932) (Reconstruction Finance
Corporation).  See generally Final Report of the Attorney General's
Committee on Administrative Procedure, S. Doc. No. 8, 77th Cong., 1st
Sess. 7-11 (1941);  1 K. Davis, Administrative Law Treatise Sections
1.5, 1.6 (2d ed. 1978).
   /22/ The primary end result of these developments, as concerns
litigation challenging governmental conduct, was enactment of the
Administrative Procedure Act in 1946.  See Attorney General's Manual
on the Administrative Procedure Act 9 (1947).  But Congress also
responded to these events in the Judicial Code enacted two years
later.  Section 451 of the revised Code added a comprehensive
definition of the word "agency" for purposes of the Code.  In
addition, Section 1345 added the word "agency" so that the provision,
as revised, granted federal courts original jurisdiction over "suits
or proceedings commenced by the United States, or by any agency or
officer thereof expressly authorized to sue by Act of Congress." This
revision reflected the growth in the number of agencies authorized to
sue.  See 28 U.S.C. 1345 Revision Notes.
   /23/ 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).").
   /24/ See, e.g., 7 U.S.C. 942(b) (Rural Telephone Bank);  12 U.S.C.
1441(c)(8) (Federal Home Loan Bank Financing Corporation);  12 U.S.C.
1702 (Secretary of HUD with respect to certain statutory duties);  12
U.S.C. 2289(1) (Federal Financing Bank);  12 U.S.C. 3012(6) (National
Consumer Cooperative Bank);  15 U.S.C. 77dd (Corporation of Foreign
Security Holders);  15 U.S.C. 78ccc(b)(1) (Securities Investor
Protection Corporation);  15 U.S.C. 634(b)(1) (Administrator of Small
Business Administration);  16 U.S.C. 648c(b) (National Trust for
Historic Preservation);  16 U.S.C. 831c(b) (Tennessee Valley
Authority);  19 U.S.C. 2350 (Secretary of Labor with respect to trade
adjustment assistance for firms);  20 U.S.C. 1132g-1(c)(2) (Secretary
of Education with respect to housing and educational facility loans);
20 U.S.C. 3225(d)(3) (National Trust for Drug-Free Youth);  20 U.S.C.
4414(a)(3) (Board of Institute of American Indian and Alaska Native
Culture and Arts Development);  22 U.S.C. 2199(d) (Overseas Private
Investment Corporation);  22 U.S.C. 4604(j) (United States Institute
for Peace);  25 U.S.C. 1496(a) (Secretary of Interior with respect to
federal loan guarantees and related insurance for Native Americans);
33 U.S.C. 984(a)(3) (St. Lawrence Seaway Development Corporation);  38
U.S.C. 1820(a)(1) (Administrator of Veterans' Affairs with respect to
housing and small business loans);  42 U.S.C. 294h(a)(2) (Secretary of
Health and Human Services with respect to federally insured loans to
graduate students in health professions schools);  42 U.S.C. 1404a
(Secretary of HUD with respect to low-income housing);  42 U.S.C.
8105(b)(4) (Neighborhood Reinvestment Corporation);  45 U.S.C.
822(c)(5) (Secretary of Transportation with respect to Railroad
Rehabilitation and Improvement Fund).
   /25/ In creating some governmental entities, Congress expressly
provided for removal of actions against them.  See, e.g., 12 U.S.C.
632 (federal reserve banks);  12 U.S.C. 1452(e) (Federal Home Loan
Mortgage Corporation);  12 U.S.C. 1730(k) (Federal Savings and Loan
Insurance Corporation);  12 U.S.C. 1789(a)(2) (National Credit Union
Administration Board);  12 U.S.C. 1819 (Federal Deposit Insurance
Corporation);  12 U.S.C. 2277a-7(4)(B) (Farm Credit System Insurance
Corporation);  12 U.S.C. 2278b-4(b) (Farm Credit System Financial
Assistance Corporation);  12 U.S.C. 2279aa-14(3) (Federal Agricultural
Mortgage Corporation);  22 U.S.C. 282f (International Finance
Corporation);  22 U.S.C. 283f (Inter-American Development Bank);  22
U.S.C. 283gg (Inter-American Investment Corporation);  22 U.S.C. 284f
(International Development Association);  22 U.S.C. 285f (Asian
Development Bank);  22 U.S.C. 286g (International Monetary Fund and
International Bank for Reconstruction and Development);  39 U.S.C.
401(1) (United States Postal Service).  Most of these entities are
corporations or other entities with respect to which, in the absence
of a specific removal provision, doubt could arise as to whether they
were "agenc(ies)" for purposes of 28 U.S.C. 451, and so entitled to
invoke Section 1442(a)(1).  See also 28 U.S.C. 1349 (regarding
original jurisdiction over cases involving government corporations).
   /26/ See also La. Code Civ. Proc. Ann. tit. 1 ch. 2, art. 3605
(West 1961) (injunction "shall be effective against the parties
restrained, their agents, employees, and counsel, and those persons in
active concert or participation with them");  Pettus v. Atchafalaya
Wildlife Protective Society, 351 So. 2d 790, 792 (La. Ct. App. 1977)
("An injunction (against) a corporation is a mandate to those
responsible for the * * * corporation's affairs.").
   /27/ Clean Water Act, 33 U.S.C. 1323(a);  Safe Drinking Water Act,
42 U.S.C. 300j-6;  Clean Air Act, 42 U.S.C. 7418(a);  Resource
Conservation and Recovery Act, 42 U.S.C. 6961 (solid and hazardous
wastes);  42 U.S.C. 6991f (underground storage tanks);  42 U.S.C.
6992e (medical wastes);  and Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9620.
   /28/ Only one of these environmental statutes' waiver provisions,
the Clean Water Act's, addresses removal:
      Nothing in this section shall be construed to prevent any
      department, agency, or instrumentality of the Federal
      Government, or any officer, agent, or employee thereof in the
      performance of his official duties, from removing to the
      appropriate Federal district court any proceeding to which the
      department, agency, or instrumentality or officer, agent or
      employee thereof is subject pursuant to this section, and any
      such proceeding may be removed in accordance with section 1441
      et seq. of title 28.  * * *
33 U.S.C. 1323(a).
   /29/ For example, in two recent cases, the Pennsylvania Department
of Environmental Resources (PADER) sued federal agencies alleging
violations of the State's environmental laws.  PADER v. United States
Dep't of the Navy, Civ. No. 89-0545 (M.D. Pa. Aug. 29, 1989)
(concerning cleanup of hazardous waste at a Navy facility in
Mechanicsburg, Pennsylvania);  PADER v. Small Business Administration,
579 A.2d 1001 (Pa. Commw. 1990) (concerning cleanup of former
wallpaper factory that SBA acquired in connection with a loan
guarantee).  Both cases presented important issues as to the scope of
the corresponding federal waiver provisions and under the Supremacy
Clause.  Accordingly, in each case the United States removed the
action, only to have it remanded to state court.  PADER v. Navy, Civ.
No. 89-0545 (order filed Aug. 29, 1989);  PADER v. SBA, Civ. No.
89-3954 (order filed Jan. 19, 1990).  After remand in PADER v. Navy,
the United States filed an action in federal court for declaratory
relief, alleging, as it had in the state court proceeding, that the
state court proceeding was barred by sovereign immunity and under
CERCLA.  See United States v. PADER, No. 90-5337 (3d Cir. Jan. 22,
1991), slip op. 4-5.  The Third Circuit reversed the district court's
dismissal of the United States' action, holding that the lower court
abused its discretion by according insufficient weight to the United
States' "compelling interest in adjudicating its sovereign immunity
under federal statutes in a federal forum." Id. at 3.
   /30/ This approach also accords with that dictated by modern
pleading practice, as embodied in the Federal Rules of Civil
Procedure.  The Rules recognize that suits against government
officials are, in reality, suits against the office.  See Fed. R. Civ.
P. 25(d).  Moreover, they authorize courts to look beyond the
pleadings when necessary to determine the real parties in interest in
thecase and to require they be made a part of the case.  Fed. R. Civ.
P. 17(a).  The addition of the real party in interest has "the same
effect as if the action had been commenced in the name of the real
party in interest." Ibid.  Applied here, these rules would justify the
courts in this and similar cases in treating the officers subject to
the relief sought as the real parties in interest and, on this basis,
upholding the removal of such cases.  See Fed. R. Civ. P. 81(c)
(Federal Rules of Civil Procedure apply to removed cases).
   /31/ For this reason, petitioners' fact-bound contentions regarding
which respondent had physical custody of the monkeys at various stages
of this litigation are irrelevant.  In any event, there was ample
evidence in the record before the district establishing that NIH, at
considerable expense, acted as primary custodian of the monkeys after
the monkeys were transferred to NIH in late 1981.  See NIH App. 1a,
2a;  IBR App. 6a.