International Primate Protection League v. Administrators of the Tulane Educational Fund, 89-3288

• Decision Date: 08 March 1990
• Docket Number: No. 89-3288,89-3288
• Citation: 895 F.2d 1056
• Parties: INTERNATIONAL PRIMATE PROTECTION LEAGUE, et al., Plaintiffs-Appellees, v. ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, and National Institutes of Health, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1056

895 F.2d 1056

INTERNATIONAL PRIMATE PROTECTION LEAGUE, et al., Plaintiffs-Appellees, v. ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, and National

Institutes of Health, Defendants-Appellants.

No. 89-3288.

United States Court of Appeals, Fifth Circuit.

March 8, 1990.

Rehearing Denied April 13, 1990.

Lowell V. Sturgill, Jr., U.S. Dept. of Justice, Civ.Div., John F. Cordes, Washington, D.C., Ruth Morris Force, Asst. U.S. Atty., and John P. Volz, U.S. Atty., New Orleans, La., for Nat. Inst. of Health.

Gregory C. Weiss, Adams & Reese, New Orleans, La., for Admin. of Tulane Educational Fund.

Margaret E. Woodward, New Orleans, La., for plaintiffs-appellees.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GEE, REAVLEY and GARWOOD, Circuit Judges.

GEE, Circuit Judge:

In today's case we address the issue whether a preliminary injunction which prevents the National Institutes of Health from carrying out the euthanizing of three macaque monkeys in order to conduct medical research was properly granted. Having determined that the National Institutes of Health, a federal agency, has a sufficient interest in the euthanizing of the monkeys to allow it to defend that interest in federal court, and concluding further that the plaintiffs have not alleged any injury sufficient to meet the standing requirements of Article III, we vacate the order of the district court granting the injunction and dismiss the case.

I. FACTS

In 1981, Dr. Edward Taub, the chief of the Behavioral Biology Center of the Institute of Behavioral Research, Inc. ("IBR"), ¹ had been conducting experiments at IBR's Silver Spring, Maryland, facility concerning the ability of macaque monkeys to recover use of a limb after nerves in it had been severed. The project had been funded by the National Institutes of Health ("NIH") and was undertaken in a pursuit of benefits for the rehabilitation of human patients suffering from neurological damage.

In September of 1981, Maryland police officers executed a warrant at the facility pursuant to their investigation into the alleged mistreatment of monkeys involved in the experiments. The search resulted in the seizure of 17 macaque monkeys and the arrest and conviction of Dr. Taub on multiple counts of animal cruelty under Article 27, Sec. 59 of the Maryland Code. ² Pursuant to a court order, NIH was given temporary charge of the monkeys.

Following Dr. Taub's conviction, People for the Ethical Treatment of Animals, Inc. ("PETA"), along with the International Primate Protection League ("IPPL"), the Animal Law Enforcement Association and several named individuals brought suit in Montgomery County, Maryland seeking, inter alia, "custody" of the monkeys seized from the facility. The defendants removed to the United States District Court for the District of Maryland, which dismissed the case, finding that none of the claims of the plaintiffs alleged injury sufficient to give them standing to seek possession of the animals. The dismissal was affirmed by the Fourth Circuit. See International Primate Protection League v. Institute for Behavioral Research, Inc., 799 F.2d 934 (4th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1624, 95 L.Ed.2d 198 (1987) [hereinafter Primate Protection ].

Although the state court order granting temporary possession to NIH terminated in 1983, NIH has continued to act as keeper of the monkeys with the consent and cooperation of IBR, the monkeys' owners. In response to public clamor and to pressure from members of Congress, NIH transferred a number of the monkeys to Tulane's Delta Regional Primate Center. In December of 1988, NIH announced that they intended to euthanize three of these animals immediately. NIH hopes to gain, through the procedure and subsequent autopsy, knowledge that may lead to improvements in rehabilitation therapy for individuals who have suffered brain or spinal cord damage.

When NIH announced its decision, the present suit was filed in Louisiana Civil District Court asserting various state law claims and seeking possession of the monkeys. The plaintiffs in this suit are IPPL, PETA, Louisiana in Support of Animals and PETA's founder, Alex Pacheco. Named as defendants are NIH, IBR and Tulane. In December of 1989, the court issued a temporary restraining order prohibiting the euthanizing of any of the monkeys.

NIH removed the case, under the authority of 28 U.S.C. Sec. 1442(a)(1), to the United States District Court for the Eastern District of Louisiana. The district court continued the state court's temporary restraining order, finding the equities of the case to favor the plaintiffs. As the district court extended the temporary restraining order beyond the 20 days permitted by Rule 65(b), the extended TRO became the functional equivalent of a preliminary injunction, appealable under 28 U.S.C. Sec. 1292(a)(1). See Fernandez-Rogue v. Smith, 671 F.2d 426 (5th Cir.1982).

II. DISCUSSION

NIH contends that the district court erred in extending the TRO as the plaintiffs have no likelihood of prevailing on the merits. In support of its contention, NIH relies upon three theories. First, NIH asserts that the plaintiffs lack standing to seek possession of the monkeys. Second, NIH alleges that the Supremacy Clause bars the plaintiffs' from interfering with the planned euthanization and subsequent autopsy. Third, NIH alleges that Louisiana Law contains no provision permitting private persons to bring civil suits to redress alleged "animal rights" violations. Finding the issue of standing dispositive, we do not address the other two contentions in NIH's brief.

A. Standing

To meet standing requirements under Article III, the plaintiff must demonstrate two things: First "that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); and second, a causal connection between the injury and the conduct such that the injury is "likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). The Supreme Court has recognized that injuries to a plaintiff's "aesthetic, conservational, and recreational" interests are sufficient to meet the first requirement of Article III standing. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). The Court has likewise noted that some interests are "too abstract, or otherwise not appropriate, to be considered judicially cognizable." Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984). In the present case, the plaintiffs have advanced three separate claims of injury.

1. Personal relationships

The plaintiffs' first claim is that:

Plaintiffs, plaintiff organizations and individual members thereof would suffer a permanent disruption of their personal relationships with the monkeys, relationships which were established prior to any previous litigation in related matters and which continued during such litigation.

This claim of injury to the plaintiffs' "personal relationships with the monkeys" is one which, within the context of this case, is insufficient to meet Article III requirements. At the outset, we recognize that the Fourth Circuit has previously rejected the virtually identical allegation by IPPL and PETA in Primate Protection. 799 F.2d at 938. That Court reasoned that, even if the defendants were to comply with the laws putatively violated, the plaintiffs would still lack any right to continue their personal relationships with the monkeys.

The reasoning of the Fourth Circuit in Primate Protection, which we adopt today, is in accord with that of the Ninth Circuit in Animal Lovers Volunteer Ass'n v. Weinberger, 765 F.2d 937 (9th Cir.1985), in which the plaintiff in that case sought to enjoin the killing of goats in a federal enclave. The court held that the plaintiff failed to allege sufficient injury to confer standing, finding that the Government's goat control measures "would produce no 'direct sensory impact' on [the plaintiff's] own environment or on any environment to which [its] member[s] would have access." Id. at 939. The court noted that if the plaintiff could show that the killing of the goats "would affect its members' aesthetic or ecological surroundings" that the plaintiff's position might have been different. Id. at 938.

The cases cited by the plaintiffs, in which courts have found animal rights groups to have met the Article III injury requirement, provide scant support to their claim of injury. Unlike the privately-owned laboratory animals involved in the present situation, the animals in the majority of those cases were feral ones which, were the challenged conduct of the defendants to be enjoined, the members of the plaintiff organizations could freely enjoy. For example, in Japan Whaling Assoc. v. American Cetacean Soc'y, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986), the Supreme Court held that the plaintiffs in that case had "alleged a sufficient 'injury in fact' in that the whale watching and studying of their members [would] be adversely affected by continued whale harvesting." Similarly, in Animal Welfare Institute v. Kreps, 561 F.2d 1002 (D.C.Cir.1977), cert. denied, 474 U.S. 1013, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978), the court held that the plaintiffs had standing because the defendants' action "impair[ed] the ability of the members of the Plaintiff organizations to see, photograph, and enjoy Cape fur seals alive in their natural habitat under conditions in which the animals are not subject to excessive harvesting, inhumane treatment and slaughter." Also, in Alaska Fish & Wildlife Federation v. Dunkle, 829 F.2d 933, 937 (9th Cir.1987), cert. denied, 485 U.S. 988, 108 S.Ct. 1290,...