The opinion of the court was delivered by: NORMA L. SHAPIRO
Plaintiffs Ellen and Henry Johnson allege that Mrs. Johnson was negligently infected with the AIDS virus by a blood transfusion during surgery in 1983. The Johnsons initiated this action in the Court of Common Pleas, Philadelphia County. When the Johnsons amended their complaint to include the American Red Cross ("Red Cross") as a defendant, the Red Cross removed the case to this court under 28 U.S.C. §§ 1441, 1446.
Plaintiffs and all the defendants except for the Red Cross have demanded a jury trial. Defendant Red Cross filed a motion to strike plaintiffs' demand for a jury trial. The motion will be granted, but the jury empaneled to decide the issues between plaintiffs and the other defendants will serve as an advisory jury on the issues between plaintiffs and defendant Red Cross, in accordance with Fed. R. Civ. P. 39(c).
"It has long been settled that the Seventh Amendment right to trial by jury does not apply in actions against the Federal Government." Lehman v. Nakshian, 453 U.S. 156, 160, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981).
To waive this immunity, Congress must "clearly and unequivocally" grant the right to a jury trial. Lehman, 453 U.S. at 162.
The Red Cross contends it is immune as a federal corporation/patriotic society chartered under 36 U.S.C. § 1, et seq. Plaintiffs contend that the Red Cross lacks sufficient connection with the United States Government to claim federal immunity. While some courts have subjected the Red Cross to trial by jury, Doe v. American National Red Cross, No. 91-03-CIV-3-BR (E.D.N.C August 5, 1992) (order striking defendants motion for a non-jury trial); Bentz v. American Red Cross, No. 88-7608, 1990 U.S. Dist. LEXIS 8188 (E.D. Pa. July 3, 1990) (jury verdict awarding damages against the Red Cross), aff'd., 932 F.2d 958 (3d Cir. 1991), others have refused to do so, Marella v. Brandywine Hospital, No. 92-4207 (E.D. Pa. June 3, 1993) (order granting Red Cross's motion for non-jury trial). Plaintiff claims that the Ohio Court of Appeals decided this issue in State ex rel. American National Red Cross v. Judge Thomas J. Pokorny, 79 Ohio App. 3d 419, 607 N.E.2d 524 (Ohio Ct. App. 1992), but there the court merely refused to grant a writ of prohibition. In any event, that case is not binding precedent.
Federally chartered organizations must have sufficient connection with the federal government to be covered by Lehman. See Young v. U.S. Postal Service, 698 F. Supp. 1139 (S.D.N.Y. 1988) (no jury in action against the United States Postal Service, a federally chartered organization with federal funding and civil service employees), mandamus denied, In re Young, 869 F.2d 158, 159 (2d Cir. 1989); Jones-Hailey v. T.V.A., 660 F. Supp. 551 (E.D. Tenn. 1987) (no jury in action against the Tennessee Valley Authority, a federally chartered corporation acting as an instrumentality and agency of the government, with directors appointed by the President). Contra Hanna v. Federal Land Bank Association of Southern Illinois, 903 F.2d 1159 (7th Cir. 1990) (right to jury trial in action against the Production Credit Association and the Federal Land Bank Association, federally chartered banks owned and operated by private citizens).
In Department of Employment v. United States, 385 U.S. 355, 17 L. Ed. 2d 414, 87 S. Ct. 464 (1966), the Supreme Court stated, "Although there is no simple test for ascertaining whether an institution is so closely related to governmental activity as to become a tax-immune instrumentality, the Red Cross is clearly such an instrumentality." Id. at 358-59. The Court based this conclusion on several factors: the Red Cross charter provides for a regular financial audit by the Department of Defense; the President appoints the principal officer and seven of the other 49 governors; the Red Cross meets this country's obligations under various international treaties and performs "a wide variety of functions indispensable to the workings of our Armed Forces around the globe"; and the federal government has provided "substantial material assistance" to the Red Cross by providing a federal building for the organization's permanent headquarters.
Time and again, both the President and the Congress have recognized and acted in reliance upon the Red Cross's status as an arm of the Government. In those respects in which the Red Cross differs from the usual government agency--e.g., in that its employees are not employees of the United States, and that government officials do not decide its everyday affairs--the Red Cross is like other institutions--e.g., national banks--whose status as tax-immune instrumentalities of the United States is beyond dispute.
Id. at 359-60 (emphasis added).
Courts have consistently granted the Red Cross federal government exemptions. See U.S. v. City of Spokane, 918 F.2d 84, 86-88 (9th Cir. 1990) (Red Cross immune from state and local taxation of lawfully conducted gambling activities), cert. denied, 115 L. Ed. 2d 1053, 111 S. Ct. 2888 (1991); Doe v. American National Red Cross, No. 91-03- CIV-3-BR, 1992 U.S. Dist. LEXIS 11611, at *2 (E.D.N.C. January 30, 1992) (order denying plaintiff's motion to amend its complaint to assert a claim for punitive damages because the Red Cross is a federal instrumentality exempt from punitive damages).
The Court of Appeals for the Ninth Circuit has held that the Red Cross is not a federal agency covered by the Freedom of Information Act (FOIA), Irwin Memorial Blood Bank v. American National Red Cross, 640 F.2d 1051, 1053-54 (9th Cir. 1981), but nonetheless has rejected the argument that the Red Cross is not a ...