Patterson, 101 F. Supp. at 656; Rice, 295 F. Supp. at 134. The court in Patterson did not even mention the possibility of the case arising under the laws of the United States.
Defendants also assert that the Red Cross is an agency which has a right to remove this case under 28 U.S.C. § 1442(a)(1) (1982). In Department of Employment v. United States, 385 U.S. 355, 87 S. Ct. 464, 17 L. Ed. 2d 414 (1966), the Supreme Court held that the Red Cross is a government instrumentality for the purposes of immunity from state taxation. Later, the Ninth Circuit Court of Appeals held that the Red Cross is not a government agency for the purposes of the Freedom of Information Act (FOIA). Irwin Memorial v. American Nat. Red Cross, 640 F.2d 1051 (9th Cir. 1981). That court reasoned that although the Supreme Court found the Red Cross to be a government instrumentality in the context of a state taxation dispute, the Red Cross did not thereby assume the status of a government agency for other purposes. Id. at 1052. In light of these decisions which have examined the nature of the Red Cross, the Court will examine whether the Red Cross should be considered an agency for the purposes of 28 U.S.C. § 451.
The definition of agency includes, for purposes of Title 28, "any corporation in which the United States has a proprietary interest. . . ." 28 U.S.C. § 451 (1982). Since the Red Cross has no stock outstanding, the Court must look for other indications that the United States has a proprietary interest which is more than incidental or custodial. See Government National Mortgage Association v. Terry, 608 F.2d 614, 618 (5th Cir. 1979); Acron Investments, Inc. v. Federal Savings and Loan Ins. Corp., 363 F.2d 236, 240 (9th Cir. 1966), cert. denied, 385 U.S. 970, 87 S. Ct. 506, 17 L. Ed. 2d 434 (1966); 18 U.S.C. § 6, Historical and Revision Notes (18 U.S.C. § 6 cited by 28 U.S.C. § 451) (corporation in which United States government has "proprietary interest" may include those having no stock outstanding, but not where interest is merely custodial or incidental).
In Rauscher Pierce Refsnes, Inc. v. Federal Deposit Insurance Corporation, the Fifth Circuit looked to these other "indicia" and found that the FDIC was an agency under the definition of 28 U.S.C. § 451. 789 F.2d 313 (5th Cir. 1986). The FDIC three member board is appointed exclusively by the President (the comptroller general filling one position). Id. at 315. The FDIC is empowered to promulgate banking regulations, examine banks, and issue orders, as a means of achieving a national policy goal set by Congress of maintaining a strong currency and a safe banking system, necessary for the health of the national economy. Id. at 315-316. For these reasons the court found that the national government was entwined in the operations of FDIC such as to make the government interest other than an incidental one. Id. at 316.
In Government National Mortgage Association v. Terry, the Fifth Circuit found that GNMA, which performs certain limited governmental functions in the execution of a larger national housing policy, was an agency under the definition of 28 U.S.C. § 451. Id. at 620. The management of GNMA is controlled entirely by a government agency, HUD, which defines the policies of GNMA and which has the power to amend bylaws and direct its operations. Id. at 619. GNMA is also financed by the federal government. Id. at 619.
The American National Red Cross, in contrast to GNMA and the FDIC, was not set up to perform an essential regulatory function, or an essential function in the operation of the national economy, with the federal government maintaining primary control of the corporation. This is not to say that the American National Red Cross does not have an organization and important purposes which are linked with the interests of the national government. However, although the Red Cross has been described as a quasi-public entity, Buckley v. Valeo, 171 U.S. App. D.C. 172, 519 F.2d 821, 921 (D.C. Cir. 1975), it is not subject to the substantial federal control that is characteristic of a governmental agency. See Irwin Memorial, 640 F.2d at 1057.
Congress first incorporated the American National Red Cross in 1900. Act of June 6, 1900, ch. 784, 31 Stat. 277. In 1905, Congress reincorporated the organization and introduced government supervision of the organization, as well as federal government representation in the national organization, which until that time had been conducted as a private corporation. S. Rep. No. 2139, 84th Cong., 2nd Sess., at 2-3 (1956). These changes were made in part as a means of carrying out the provisions of the international Red Cross treaty of August 22, 1864, entered into at Geneva Switzerland. Id. The President currently appoints eight out of fifty American National Red Cross members to the board of governors, one of whom acts as principal officer of the corporation. 36 U.S.C. § 5 (1982). The American National Red Cross also provides many services to the active military forces, in times of peace as well as in times of war. Sturges, The Legal Status of the Red Cross, 56 Mich. L.R. 1, 18 (1951).
These links, however, are not sufficient to destroy the essentially private nature of the organization. The private character of the American National Red Cross and its chapters was thoroughly reviewed by the Ninth Circuit in Irwin Memorial, 640 F.2d at 1056-1057. Among other points made, the court noted that Congress gives only "special purpose" grants to the Red Cross, and that otherwise the organization depends upon contributions and its own revenues for operating expenses. Id. at 1056. Congress has expressly stated its intention of maintaining the "impartial, non-political" character of the Red Cross, and has stated that to this end the Red Cross carries out its objectives by the means of "the voluntary contribution of its members." H.R. Rep. No. 2054, 84th Cong., 2nd Sess., at 2 (1956).
The Ninth Circuit also noted that in order for the American National Red Cross to retain its membership in the International Red Cross organization, the American National Red Cross must maintain its autonomous status vis-a-vis the national government. Irwin Memorial, 640 F.2d at 1057. One indication of the organization's independence is that although the President appoints eight of the fifty members of the board of governors, a majority number, thirty, are not appointed by any branch of the national government, and the remaining twelve are appointed by the other thirty-eight board members. 36 U.S.C. § 5(a) and (b) (1982). Furthermore, the 1947 amendment of the American National Red Cross charter was framed with the objective of strengthening the participation of the vast numbers of the organization's private members, in order to democratize the organization to insure "that all American people who constitute the American National Red Cross have adequate representation in shaping the policies of the national organization. . . ." S. Rep. No. 38, 80th Cong., 1st Sess., at 1 (1947). It is also noteworthy that the "cooperation and assistance" which the President may accept from the Red Cross on behalf of the United States armed forces under 10 U.S.C. § 2602 (1982) appears under Chapter 155 of Title 10, entitled "Acceptance of Gifts and Services."
Finally, in holding that the Red Cross is immune from state taxation, the Supreme Court pointed out that when Congress passed tax legislation in 1960, it did not intend to strip away the Red Cross' immunity as a nongovernment-owned instrumentality. Department of Employment v. United States, 385 U.S. at 360, 87 S. Ct. at 467-468. This is a far different status from that of an agency in which the government has a proprietary interest.
In sum, the Court cannot conclude, on the basis of the evidence and the authorities, that the United States Government is intertwined with the Red Cross in such a way as to give the United States a "proprietary interest," making the Red Cross an agency of the United States under the definition of 28 U.S.C. § 451. The Court does not reach the issue of whether an agency may in fact remove under 28 U.S.C. § 1442(a)(1), since Red Cross fails to meet the definition of "agency."
Furthermore, the Court rejects the Red Cross' argument that even if it is not an agency, for the purposes of § 1442(a) it is a person who acts under the authority of government officers. Although some of the Red Cross' directors are also government employees, they do not act in that capacity when they take action as Board members. Additionally, they constitute a minority of the directors. As the court in Irwin Memorial emphasized, the Red Cross is not subject to the substantial control of the United States Government. 640 F.2d at 1056-1057.
Based upon the discussion above, the Court concludes that this case was improperly removed and that it should be remanded to the Superior Court of the District of Columbia. An appropriate order has been issued.