“ 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 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. ”

“ Indeed, it was only after the court rejected petitioners' standing to protect the monkeys [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." ”

“ 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." ”

“ 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 , 109 S.Ct. 959, 103 L.Ed.2d 99 (1989) . ↑ See, e.g., FHA v. Burr, 309 U.S. 242 , 245, 60 S.Ct. 488, 490-91, 84 L.Ed. 724 (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) . ”

“ 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. ”