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. § 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 §
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.
500 U. S.
76-78.
2. Section 1442(a)(1) excludes agencies from the removal power.
Pp.
500 U. S.
78-87.
(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
Page 500 U. S. 72
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 § 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.
500 U. S.
79-82.
(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 contemporary changes it made to the
federal administrative structure that created, and selectively
waived the sovereign immunity of, several independent agencies. Pp.
500 U. S.
82-84.
(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 officers 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 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.
500 U. S.
84-87.
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 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.
Page 500 U. S. 74
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 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.
500 U. S.
87-89.
895 F.2d 1056 (CA 5 1990), 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.
JUSTICE MARSHALL delivered the opinion of the Court.
This case arose from an animal welfare dispute. At issue is the
fate of certain monkeys used for medical experiments funded by the
Federal Government. The case comes before us, however, on a narrow
jurisdictional question: whether a suit filed in state court
challenging the treatment of these monkeys was properly removed to
the federal court by respondent National Institutes of Health
(NIH), one of the defendants. We hold that removal was improper,
and that the case should be remanded to state court.
I
Petitioners, who are organizations and individuals seeking the
humane treatment of animals, filed this suit in Louisiana civil
district court; the monkeys are housed at a primate research center
in that State. Three defendants were named,
Page 500 U. S. 75
and are respondents here. Respondent Institutes for Behavior
Resources (IBR) is a private entity that owns the monkeys.
[
Footnote 1] Respondent NIH now
maintains custody of the monkeys, with IBR's consent. Respondent
Administrators of the Tulane Educational Fund (Tulane) is the
governing body for the primate research center that, in 1986,
entered into an agreement with NIH to care for the monkeys. The
suit sought to enjoin further experimentation on the monkeys and to
obtain custody over them. Petitioners based their claim for this
relief upon Louisiana law, including provisions that (1) impose
criminal sanctions for cruelty to animals, La.Rev.Stat.Ann. §
14:102.1 (1986 and Supp.1991); (2) permit officers of humane
societies to remove, to a "stable," animals being subjected to
cruelty or that are "bruised, wounded, crippled, abrased, sick, or
diseased," La.Rev.Stat.Ann. § 3:2431 (1987); (3) authorize tort
damages for "[e]very act whatever of man that causes damage to
another," La.Civ.Code Ann., Art. 2315 (1979 and Supp.1991); and (4)
direct courts to "proceed according to equity" in situations not
covered by "legislation or custom," La.Civ.Code Ann., Art. 4
(Supp.1991).
See App. to Pet. for Cert. A-35 to A-37.
Shortly after the suit was filed, NIH removed the case to
federal court pursuant to 28 U.S.C. § 1442(a)(1), which authorizes
removal of state suits by certain federal defendants. The federal
District Court then granted a temporary restraining
Page 500 U. S. 76
order barring NIH from carrying out its announced plan to
euthanize three of the remaining monkeys and, in the process, to
complete some of the medical research by performing surgical
procedures. The court extended this order beyond its 20-day limit,
see Fed.Rule Civ.Proc. 65(b), and NIH accordingly appealed
the court's action under 28 U.S.C. § 1292(a)(1), which permits
appellate review of preliminary injunctions.
On appeal, NIH argued,
inter alia, that petitioners
were not entitled to the injunction because they lacked standing to
seek protection of the monkeys. Petitioners, in turn, argued that
the District Court had no jurisdiction over the case because 28
U.S.C. § 1442(a)(1) permits only federal officials -- not federal
agencies such as NIH -- to remove cases in which they are named as
defendants. The Court of Appeals for the Fifth Circuit agreed with
NIH that petitioners could not satisfy the requirements under
Article III of the United States Constitution for standing. It also
held that federal agencies have the power to remove cases under §
1442(a)(1). Accordingly, the Court of Appeals vacated the
injunction and dismissed the case.
See 895 F.2d 1056 (CA5
1990). We granted certiorari to resolve a conflict between the
Courts of Appeals for the Fifth and Third Circuits on the question
whether § 1442(a)(1) permits removal by federal agencies. [
Footnote 2] 498 U.S. 980 (1990). We
conclude that it does not.
II
We confront at the outset an objection raised by NIH to our
jurisdiction over the removal question. NIH argues that, because
the Court of Appeals found that petitioners lack Article III
standing to seek protection of the monkeys, petitioners also lack
standing even to contest the removal of
Page 500 U. S. 77
their suit. We believe NIH misconceives both standing doctrine
and the scope of the lower court's standing ruling.
Standing does not refer simply to a party's capacity to appear
in court. Rather, standing is gauged by the specific common law,
statutory or constitutional claims that a party presents.
"Typically, . . . the standing inquiry requires careful judicial
examination of a complaint's allegations to ascertain whether the
particular plaintiff is entitled to an adjudication
of the
particular claims asserted."
Allen v. Wright, 468 U. S. 737,
468 U. S. 752
(1984) (emphasis added).
See also Fletcher, The Structure
of Standing, 98 Yale L.J. 221, 229 (1988) (standing "should be seen
as a question of substantive law, answerable by reference to the
statutory and constitutional provision whose protection is
invoked").
It is well established that a party may challenge a violation of
federal statute in federal court if it has suffered "injury that
fairly can be traced to the challenged action of the defendant,"
Simon v. Eastern Kentucky Welfare Rights Org.,
426 U. S. 26,
426 U. S. 41
(1976), and that is "likely to be redressed by the requested
relief."
Allen v. Wright, supra, 468 U.S. at
468 U. S. 751.
In the case now before us, petitioners challenge NIH's conduct as a
violation of § 1442(a)(1). Petitioners' injury is clear, for they
have lost the right to sue in Louisiana court -- the forum of their
choice. This injury "fairly can be traced to the challenged action
of defendants," since it directly results from NIH's removal of the
case. And the injury is "likely to be redressed" if petitioners
prevail on their claim because, if removal is found to have been
improper under § 1442(a)(1), the federal courts will lose subject
matter jurisdiction and the "case shall be remanded." 28 U.S.C. §
1447(c);
see infra at
500 U. S. 87-89.
Therefore, petitioners clearly have standing to challenge the
removal.
Nothing in the Court of Appeals' decision undermines this
conclusion. The court below found that petitioners did not have
standing to protest "disruption of their personal relationships
with the monkeys," 895 F.2d at 1059, to claim
Page 500 U. S. 78
"harm to their
aesthetic, conservational and environmental
interests,'" id. at 1060, or to act as advocates for the
monkeys' interests, id. at 1061. But at no point did the
Court of Appeals suggest that petitioners' lack of standing to
bring these claims interfered with their right to challenge
removal. Indeed, it was only after the court rejected
petitioners' standing to protect the monkeys [Footnote 3] that it considered the question
whether NIH's removal was proper. Id. at 1061-1062. NIH
argues that, were we also to consider the propriety of
removal,
"the Court would be resolving the removal question in a context
in which the court below specifically found the injury in fact
necessary to [the concrete] adverseness [required for standing] to
be lacking."
Brief for Respondent NIH 7, n. 4. We disagree. The "adverseness"
necessary to resolving the
removal question is supplied
not by petitioners' claims for the monkeys' protection, but rather
by petitioners' desire to prosecute their claims in state court.
[
Footnote 4]
Page 500 U. S. 79
III
A
Section 1442(a)(1) permits a defendant in a civil suit filed in
state court to remove the action to a federal district court if 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. . . ." 28 U.S.C. § 1442(a)(1).
[
Footnote 5] The question
before us is whether this provision permits agencies to remove.
"
[T]he starting point in every case involving construction of a
statute is the language itself.'" Watt v. Alaska,
451 U. S. 259,
451 U. S. 265
(1981) (citation omitted). We have little trouble concluding that
the statutory language excludes agencies from the removal power. To
be sure, the first clause in § 1442(a)(1) contains the words "or
any agency thereof." IBR argues that those words designate one of
two grammatical subjects in § 1442(a)(1)'s opening clause (namely,
agencies) and that the clause's other subject is "[a]ny officer of
the United States." But such a reading is plausible only if this
first clause is examined in isolation from the rest of §
1442(a)(1). "We continue to recognize that context is important in
the quest for [a] word's meaning," United States v.
Bishop, 412 U. S. 346,
412 U. S. 356
(1973), and that "[s]tatutory construction . . . is a holistic
endeavor." United Savings Assn. of Texas v. Timbers of Inwood
Forest Associates, Ltd., 484 U. S. 365,
484 U. S. 371
(1988). We find that, when construed in the relevant context, the
first clause of
Page 500 U. S. 80
§ 1442(a)(1) grants removal power to only one grammatical
subject, "[a]ny officer," which is then modified by a compound
prepositional phrase: "of the United States or [of] any agency
thereof."
Several features of § 1442(a)(1)'s grammar and language support
this reading. The first is the statute's punctuation.
Cf.
United States v. Ron Pair Enterprises, Inc., 489 U.
S. 235,
489 U. S. 241
(1989) (statute's meaning is "mandated" by its "grammatical
structure"). If the drafters of § 1442(a)(1) had intended the
phrase "or any agency thereof" to describe a separate category of
entities endowed with removal power, they would likely have
employed the comma consistently. That is, they would have separated
"or any agency thereof" from the language preceding it, in the same
way that a comma sets apart the subsequent clause, which grants
additional removal power to persons "acting under" federal
officers. Absent the comma, the natural reading of the clause is
that it permits removal by anyone who is an "officer" either "of
the United States" or of one of its agencies.
Secondly, the language that follows "[a]ny officer of the United
States or any agency thereof" confirms our reading of that clause.
The subsequent grant of removal authority to any "person acting
under him" makes little sense if the immediately preceding words --
which ought to contain the antecedent for "him" -- refer to an
agency, rather than to an individual. Finally, the phrase in §
1442(a)(1) that limits exercise of the removal power to suits in
which the federal defendant is challenged for "any act under color
of such office" reads very awkwardly if the prior clauses refer not
only to persons but to agencies. An agency would not normally be
described as exercising authority "under color" of an "office." In
sum, IBR's interpretation of § 1442(a)(1) simply does not accord
with the statute's language and structure.
IBR tries to rescue its argument by invoking the
well-established principle that each word in a statute should be
given effect.
See 2A N. Singer, Sutherland on
Statutory
Page 500 U. S. 81
Construction § 46.06 (C. Sands 4th rev. ed.1984). IBR contends
that any officer of an agency is also an officer of the United
States, and therefore that the reference to "agency thereof" in §
1442(a)(1) is redundant unless it signifies the agency itself. IBR
notes, in support of this contention, that, when Congress enacted §
1442(a)(1), it also defined "agency" as
"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."
28 U.S.C. § 451. Since the words "of the United States" modify
all of the entities listed in § 451, IBR concludes that an officer
of an agency is necessarily an "officer of the United States."
Brief for Respondent IBR 16-17.
We find this argument unpersuasive. IBR's broad definition of
"officer of the United States" may well be favored today.
Cf.
Buckley v. Valeo, 424 U. S. 1,
424 U. S. 126
(1976) ("
[O]fficer of the United States,'" as used in Art. II,
§ 2, cl. 2, refers to any "appointee exercising significant
authority pursuant to the laws of the United States"). But there is
no evidence that this was the definition Congress had in mind in
1948, when it enacted § 1442(a)(1) and the companion provision
defining "agency." Indeed, in 1948 and for some time thereafter,
the relationship between certain independent agencies and the
"Government of the United States" was often disputed. See,
e.g., Pierce v. United States, 314 U.
S. 306 (1941) (holding that an officer or employee of
the Tennessee Valley Authority was not "an officer or employee
acting under the authority of the United States, or any Department,
or any officer of the Government thereof" within the meaning of a
criminal statute first enacted in 1884); see also Rainwater v.
United States, 356 U. S. 590
(1958) (resolving a conflict among the courts of appeals and
finding that a claim against the Commodity Credit Corporation was a
claim "against the Government of the United States, or any
department or officer thereof," within the meaning of the
Page 500 U. S. 82
False Claims Act);
United States v. McNinch,
356 U. S. 595
(1958) (overturning the Fourth Circuit's decision that the Federal
Housing Administration was not covered by the same provisions of
the False Claims Act). Given the uncertain status of these
independent federal entities, Congress may well have believed that
federal courts would not treat every "officer of . . . a[n] agency"
as an "officer of the United States." Thus, the most likely
explanation for Congress' insertion of the "any officer of . . .
any agency thereof" language is that Congress sought to eliminate
any doubt that officers of the Tennessee Valley Authority and like
entities possessed the same removal authority as other "officer[s]
of the United States."
See Cannon v. University of
Chicago, 441 U. S. 677,
441 U. S.
698-699 (1979) ("evaluation of congressional action . .
. must take into account its contemporary legal context"). In any
event, this reading of the "any agency thereof" language gives full
effect to all of § 1442(a)(1)'s terms, while avoiding the
grammatical and linguistic anomalies produced by IBR's
interpretation.
B
Respondent NIH finds an alternative basis for agency removal
power in the subsequent clause of § 1442(a)(1) that grants removal
authority to any "person acting under him." In NIH's view, since
the word "him" refers to an officer of the United States, an agency
would be a "person acting under him" because each agency is
administered or directed by such an officer. This is a rather
tortured reading of the language. We doubt that, if Congress
intended to give removal authority to agencies, it would have
expressed this intent so obliquely, referring to agencies merely as
entities "acting under" the agency heads.
NIH faces an additional hurdle, moreover, in arguing that the
word "person" in the phrase "person under him" should refer to an
agency. As we have often noted,
"in common usage, the term 'person' does not include the
sovereign, [and]
Page 500 U. S. 83
statutes employing the [word] are ordinarily construed to
exclude it."
Will v. Michigan Dept. of State Police, 491 U. S.
58,
491 U. S. 64
(1989) (citation omitted; internal quotes omitted; brackets in
original);
see also id. at
491 U. S. 73
(Brennan, J., dissenting). This Court has been especially reluctant
to read "person" to mean the sovereign where, as here, such a
reading is "decidedly awkward."
Id. at
491 U. S.
64.
Nevertheless, "there is no hard and fast rule of exclusion" of
the sovereign,
United States v. Cooper Corp., 312 U.
S. 600,
312 U. S.
604-605 (1941), and our conventional reading of "person"
may therefore be disregarded if
"[t]he purpose, the subject matter, the context, the legislative
history, [or] the executive interpretation of the statute . . .
indicate an intent, by the use of the term, to bring state or
nation within the scope of the law."
Id. at
312 U. S. 605
(footnote omitted). In the present case, NIH argues that Congress'
intent to include federal agencies within the term "person" in §
1442(a)(1) can be inferred from contemporary changes that Congress
made in the federal administrative structure.
During the 15 years prior to enactment of § 1442(a)(1) in 1948,
Congress created several independent agencies that it authorized to
"sue and be sued" in their own names in both state and federal
courts. In NIH's view, these selective waivers of sovereign
immunity gave Congress a reason to extend the removal authority to
include agencies. Thus, NIH argues, the word "person" in the
removal statute should be read as referring to such agencies.
Although none of these early "sue and be sued" statutes involved
major departments of the Federal Government, [
Footnote 6] we agree that those laws
could
have prompted Congress to change its removal policy. However,
we find no persuasive evidence that Congress actually made such a
change when it revised the removal statute in
Page 500 U. S. 84
1948. NIH concedes that each of the nine preceding versions of
the removal statute, extending as far back as 1815, limited the
removal authority to some subset of federal
officers.
See Brief for Respondent NIH 21-23, and n. 18;
see
also Willingham v. Morgan, 395 U. S. 402,
395 U. S.
405-406 (1969). In revising this removal provision to
its present text, the House Committee Report offered only this
comment to explain the change:
"The revised subsection . . . is extended to apply to all
officers and employees of the United States or any agency thereof.
[The predecessor provision] was limited to revenue officers engaged
in the enforcement of the criminal or revenue laws."
H.R.Rep. No. 308, 80th Cong., 1st Sess., A134 (1947). This is
the only legislative history on the 1948 revision and, as even NIH
admits, it does not express a clear purpose to extend the removal
power to agencies.
See Brief for Respondent NIH 21. At
best, the report language could be described as ambiguous on this
point. Thus, the evidence that Congress intended to give agencies
removal power is insufficient to overcome both the presumption
against designating the sovereign with the word "person" and the
awkwardness of referring to an agency as a "person acting under
him."
Accord, Mesa v. California, 489 U.
S. 121,
489 U. S. 136
(1989) ("[s]ection 1442(a) . . . seek[s] to do nothing more than
grant district court jurisdiction over cases in which a federal
officer is a defendant").
C
NIH argues, finally, that even if a literal reading of §
1442(a)(1) would exclude agencies from the removal power, we should
reject that construction because it produces absurd results.
See, e.g., Public Citizen v. Department of Justice,
491 U. S. 440,
491 U. S. 454
(1989) (court can look beyond statutory language when plain meaning
would "compel an odd result"). NIH points out that, if agencies are
denied removal power, the removability of the present lawsuit would
turn on the mere
Page 500 U. S. 85
technicality of whether petitioners named NIH or only individual
officers of NIH as defendants.
We think Congress could rationally have made such a distinction.
As we have already noted, for more than 100 years prior to 1948,
Congress expressly limited whatever removal power it conferred upon
federal defendants to individual officers. NIH does not suggest
that any of these earlier statutes produced absurd results; indeed,
it acknowledges that,
"[i]n drafting these removal provisions, Congress referred to
federal officers because they, and not federal agencies, were the
ones being sued in state courts."
Brief for Respondent NIH 23. The reason agencies were not being
sued, of course, was that Congress had not consented to such suits
and the agencies were therefore shielded by sovereign immunity.
See, e.g., Larson v. Domestic & Foreign Commerce
Corp., 337 U. S. 682,
337 U. S. 693
(1949) ("suit to enjoin [federal action] may not be brought unless
the sovereign has consented"); S. Breyer & R. Stewart,
Administrative Law and Regulatory Policy 1018 (2d ed.1985) (same).
That fact, however, would not have prevented a plaintiff from
erroneously naming -- as NIH argues that petitioners have
erroneously named -- an agency as a defendant in state court. The
first nine incarnations of the federal officer removal statute
clearly reflect Congress' belief that state courts could be trusted
to dismiss the agency as defendant. The determination of an
agency's immunity, in other words, was sufficiently straightforward
that a state court, even if hostile to the federal interest, would
be unlikely to disregard the law. Thus, agencies would not need the
protection of federal removal.
By contrast, the question of the immunity of federal officers
who were named as defendants was much more complicated. Such
immunity hinged on "the crucial question . . . whether the relief
sought in a suit nominally addressed to the officer [was] relief
against the sovereign."
Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. at
337 U. S. 687
(footnote omitted). Often this question was resolved by
examining
Page 500 U. S. 86
whether an officer's challenged actions exceeded the powers the
sovereign had delegated to him.
See id. at
337 U. S.
689-690. Determining whether a federal officer had acted
ultra vires was fraught with difficulty and subject to
considerable manipulation.
See Jaffe, Suits Against
Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 20
(1963) ("The question always has been which suits against officers
will be allowed and which will not be");
id. at 29-39
(discussing seeming inconsistencies in this Court's resolution of
the question);
see also Davis, Suing the Government By
Falsely Pretending to Sue an Officer, 29 U.Chi.L.Rev. 435 (1962).
Given these complexities, we think Congress could rationally decide
that individual officers, but not agencies, needed the protection
of a federal forum in which to raise their federal defenses.
See Willingham v. Morgan, 395 U.S. at
395 U. S. 405
("Obviously, the removal provision was an attempt to protect
federal officers from interference by hostile state courts").
The situation in the present case is no different from what
would have obtained under the pre-1948 statutes. NIH's defense in
this case is precisely that it is not amenable to suit in state
court by reason of sovereign immunity. [
Footnote 7] As noted, there is nothing irrational in
Congress' determination that adjudication of that defense may be
safely entrusted to a state judge. The only question remaining,
then, is whether the distinction Congress initially drew between
agencies and officers continued to be rational in 1948, when
Congress revised the removal statute. Although by then Congress had
waived the immunity to suit of several independent agencies,
[
Footnote 8]
see supra
at
500 U. S. 83,
and n. 6, we find no fatal inconsistency
Page 500 U. S. 87
in Congress' determination that these few agencies' other
federal defenses (
i.e., those aside from immunity) could
be adjudicated in state courts. A crucial reason for treating
federal officers differently remained: because of the manipulable
complexities involved in determining their immunity, federal
officers needed the protection of a federal forum.
See
Willingham v. Morgan, supra, at
395 U. S. 407
("[O]ne of the most important reasons for removal is to have the
validity of the defense of official immunity tried in a federal
court");
see also Arizona v. Manypenny, 451 U.
S. 232,
451 U. S. 242
(1981). Accordingly, we see no reason to discard our reading of the
current removal statute, which excludes agencies from this
power.
IV
Having concluded that NIH lacked authority to remove
petitioners' suit to federal court, we must determine whether the
case should be remanded to state court. Section 1447(c) of Title 28
provides that,
"[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction [over a case
removed from state court], the case shall be remanded."
Since the district court had no original jurisdiction over this
case,
see n 4,
supra, a finding that removal was improper deprives that
court of subject matter jurisdiction and obliges a remand under the
terms of § 1447(c).
See, e.g., Brewer v. Department of Housing
and Urban Development, 508 F. Supp.
72, 74 (SD Ohio 1980).
Notwithstanding the clear requirements of § 1447(c), NIH asks us
to affirm the Court of Appeals' dismissal of this suit on the
ground that a remand of petitioners' claims to Louisiana court
would be futile. NIH reasons that it is an indispensable party to
the suit, and thus that petitioners will be required, on remand, to
retain NIH as a defendant (in which case the suit will have to be
dismissed, since NIH cannot be
Page 500 U. S. 88
sued in state court) or to substitute an NIH official as
defendant (who presumably will then remove the case pursuant to §
1442(a)(1)). Alternatively, NIH argues that even if the suit can
proceed without an NIH defendant, Tulane will be able to remove the
case under § 1442(a)(1), since, in caring for the monkeys, Tulane
is a "person acting under" an NIH officer.
See Tr. of Oral
Arg. 30, 33. Obviously, if any of these events is certain to occur,
a remand would be futile.
NIH finds authority for a futility exception to the rule of
remand in
Maine Assn. of Interdependent Neighborhoods v.
Commissioner, Maine Dept. of Human Services, 876 F.2d 1051
(CA1 1989) (hereinafter
M.A.I.N.).
See Tr. of
Oral Arg. 39. We believe NIH's reliance on
M.A.I.N. is
misplaced. In that case, the plaintiff in a suit that had been
removed under § 1441(b) was found to lack Article III standing.
[
Footnote 9] The District Court
invoked futility to justify dismissing, rather than remanding the
case, but the court was overruled by the First Circuit, which did
remand the case to state court. Given the factual similarities
between
M.A.I.N. and the case now before us, we find that
the result in
M.A.I.N. supports our view that a remand is
required here.
The purported grounds for the futility of a remand in
M.A.I.N. were (1) the plaintiff's lack of standing, (2)
the state Commissioner's declared intent to remove the case
(following remand) in his capacity as a "person acting under" the
Secretary of Health and Human Services (HHS), and (3) the ability
of the Secretary of HHS (a third-party defendant) also to effect
removal, as an "officer of the United States." The First Circuit
concluded that none of these anticipated barriers to suit in state
court was sufficiently certain to render a remand futile. To begin
with, plaintiff's lack of Article III
Page 500 U. S. 89
standing would not necessarily defeat its standing in state
court. Secondly, plaintiff's suit challenged an action by the state
Commissioner that was not necessarily an "act under color of
[federal] office," a prerequisite to the exercise of removal power
under § 1442(a)(1). Finally, the First Circuit doubted whether the
Secretary of HHS would be an indispensable party in state court.
Id. at 1054-1055.
Similar uncertainties in the case before us preclude a finding
that a remand would be futile. Whether NIH is correct in arguing
that either it or one of its officers will be deemed an
indispensable party in state court turns on a question of Louisiana
law, and we decline to speculate on the proper result. Similarly,
whether Tulane will be able to remove the remanded case requires a
determination whether it is a "person acting under" the Director of
NIH within the meaning of § 1442(a)(1). This mixed question of law
and fact should not be resolved in the first instance by this
Court, least of all without an appropriate record. We also take
note, as did the First Circuit, of "the literal words of § 1447(c),
which, on their face, give . . . no discretion to dismiss, rather
than remand, an action."
Id. at 1054. The statute declares
that, where subject matter jurisdiction is lacking, the removed
case "
shall be remanded." 28 U.S.C. § 1447(c) (emphasis
added). We therefore reverse the decision of the Court of Appeals
and remand the case to the District Court with instructions that
the case be remanded to the Civil District Court for the Parish of
Orleans, Louisiana.
It is so ordered.
JUSTICE SCALIA took no part in the decision of this case.
[
Footnote 1]
IBR conducted the original research on these monkeys, testing
their ability to regain use of their limbs after certain nerves had
been severed. This research was carried out with NIH funds at IBR's
facilities in Silver Spring, Maryland. In 1981, however, Maryland
police seized the monkeys and arrested the scientist supervising
the research on charges of cruelty to animals in violation of state
law. While those charges were pending, a Maryland court gave NIH
temporary custody of the monkeys. That arrangement continues to
this day, although the state's charges have been resolved in the
scientist's favor and the Maryland court's custody order has
expired. After the Maryland prosecution had terminated, NIH moved
the monkeys to Louisiana.
See 895 F.2d 1056, 1057-1058,
and n. 2 (CA5 1990).
[
Footnote 2]
See Lovell Manufacturing v. Export-Import Bank of the United
States, 843 F.2d 725, 733 (CA3 1988) (only federal officers,
not agencies, may remove cases under § 1442(a)(1)).
[
Footnote 3]
The question whether the Court of Appeals erred in applying
Article III's standing requirements to these claims is not before
us.
See n 4,
infra.
[
Footnote 4]
Nor does the Court of Appeals' decision that petitioners lack
Article III standing to protect the monkeys render the dispute
surrounding NIH's removal moot. If removal was improper, the case
must be remanded to state court, where the requirements of Article
III plainly will not apply.
Our grant of certiorari did not extend to the Court of Appeals'
determination that petitioners lacked standing to protect the
monkeys. We therefore leave open the question whether a federal
court in a § 1442(a)(1) removal case may require plaintiffs to meet
Article III's standing requirements with respect to the state law
claims over which the federal court exercises pendent jurisdiction.
See Mesa v. California, 489 U. S. 121,
489 U. S. 136
(1989) (basis for removal jurisdiction under § 1442(a)(1) is the
federal officer's substantive defense that "arises under" federal
law).
See also Arizona v. Manypenny, 451 U.
S. 232,
451 U. S. 242
(1981) ("[I]nvocation of removal jurisdiction by a federal officer
. . . is a purely derivative form of jurisdiction, neither
enlarging nor contracting the rights of the parties" (footnote
omitted));
id. at
451 U. S. 242, n. 17 ("This principle of derivative
jurisdiction is instructive where, as here, relevant state court
jurisdiction is found to exist and the question is whether the
federal court in effect loses such jurisdiction as a result of
removal").
[
Footnote 5]
Section 1442(a) reads in pertinent 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 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 the revenue."
[
Footnote 6]
Agencies that could sue and be sued in state court included the
Federal Crop Insurance Corporation, 52 Stat. 72, 73 (1938); the
Farmers Home Corporation, 50 Stat. 522, 527 (1937); and the
Reconstruction Finance Corporation, 47 Stat. 5, 6 (1932).
[
Footnote 7]
We disregard NIH's other defense that petitioners lack Article
III standing. That defense could not be raised in state court, and
thus the removal statute is not concerned with its protection.
Cf. Mesa v. California, 489 U. S. 121
(1989).
[
Footnote 8]
See, e.g., FHA v. Burr, 309 U.
S. 242,
309 U. S. 245
(1940) (agencies authorized to "sue and be sued" are presumed to
have fully waived immunity unless, as to particular types of suits,
there is clearly a contrary legislative intent).
[
Footnote 9]
Because the case in
M.A.I.N. was removed to federal
court pursuant to § 1441(b) (original jurisdiction removal), rather
than § 1442(a)(1) (federal officer removal), the application of
constitutional standing requirements was appropriate.
Cf.
n 4,
supra.