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AMERICAN NATIONAL RED CROSS v. S. G. AND A. E.

decided: June 19, 1992.

AMERICAN NATIONAL RED CROSS, PETITIONER
v.
S. G. AND A. E.



ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Souter, J., delivered the opinion of the Court, in which White, Blackmun, Stevens, and Thomas, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and O'connor and Kennedy, JJ., joined.

Author: Souter

JUSTICE SOUTER delivered the opinion of the Court.

The charter of the American National Red Cross authorizes the organization "to sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States." 33 Stat. 600, as amended, 36 U.S.C. § 2. In this case we consider whether that "sue and be sued" provision confers original jurisdiction on federal courts over all cases to which the Red Cross is a party, with the consequence that the organization is thereby authorized to removal from state to federal court of any state-law action it is defending. We hold that the clause does confer such jurisdiction.

I

In 1988 respondents filed a state-law tort action in a court of the State of New Hampshire, alleging that one of respondents had contracted AIDS from a transfusion of contaminated blood during surgery, and naming as defendants the surgeon and the manufacturer of a piece of medical equipment used during the procedure. After discovering that the Red Cross had supplied the tainted blood, respondents sued it, too, again in state court, and moved to consolidate the two actions. Before the state court decided that motion, the Red Cross invoked the federal removal statute, 28 U.S.C. § 1441, to remove the latter suit to the United States District Court for the District of New Hampshire. The Red Cross claimed federal jurisdiction based both on the diversity of the parties and on the "sue and be sued" provision of its charter, which it argued conferred original federal jurisdiction over suits involving the organization. The District Court rejected respondents' motion to remand the case to state court, holding that the charter provision conferred original federal jurisdiction, see District Court order of May 24, 1990, reprinted at App. to Pet. for Cert. 18a-25a.

On interlocutory appeal, the United States Court of Appeals for the First Circuit reversed. 938 F.2d 1494 (1991). The Court of Appeals compared the Red Cross charter's "sue and be sued" provision with analogous provisions in federal corporate charters previously examined by this Court, and concluded that the relevant language in the Red Cross charter was similar to its cognates in the charter of the First Bank of the United States, construed in Bank of the United States v. Deveaux, 5 Cranch 61 (1809), and in that of the federally chartered railroad construed in Bankers Trust Co. v. Texas and Pacific R. Co., 241 U.S. 295 (1916), in neither of which cases did we find a grant of federal jurisdiction. The Court of Appeals distinguished Osborn v. Bank of the United States, 9 Wheat. 738 (1824), where we reached the opposite result under the charter of the second Bank of the United States, the Court of Appeals finding it significant that the second Bank's authorization to sue and be sued spoke of a particular federal court and of state courts already possessed of jurisdiction. The Court of Appeals also discounted the Red Cross's reliance on our opinion in D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447 (1942), concluding that in that case we had "noted only incidentally" that federal jurisdiction was based on the "sue and be sued" clause in the FDIC's charter. See 938 F.2d, at 1497-1499. The Court of Appeals found support for its conclusion in the location of the Red Cross charter's "sue and be sued" provision in the section "denominating standard corporate powers," id., at 1499, as well as in legislative history of the amendment to the Red Cross charter adding the current "sue and be sued" language, and in the different form of analogous language in other federal corporate charters enacted contemporaneously with that amendment. See id., at 1499-1500.

We granted certiorari, 502 U.S. (1991), to answer this difficult and recurring question.*fn1

II

Since its founding in 1881 as part of an international effort to ameliorate soldiers' wartime suffering, the American Red Cross has expanded its activities to include, among others, the civilian blood-supply services here at issue. The organization was reincorporated in 1893, and in 1900 received its first federal charter, which was revised in 1905. See American National Red Cross, Report of the Advisory Committee on Organization 4 (1946) (hereinafter Advisory Report), reprinted at App. to Brief for Appellants in No. 90-1873 (CA1), pp. 94, 101.

The 1905 charter empowered the Red Cross "to sue and be sued in courts of law and equity within the jurisdiction of the United States." Act of Jan. 5, 1905, ch. 23, § 2, 33 Stat. 600. At that time the provision would not have had the jurisdictional significance of its modern counterpart, since the law of the day held the involvement of a federally chartered corporation sufficient to render any case one "arising under" federal law for purposes of general statutory federal question jurisdiction. See Pacific R. Removal Cases, 115 U.S. 1, 14 (1885). In 1925, however, Congress restricted the reach of this jurisdictional theory to federally chartered corporations in which the United States owned more than one-half of the capital stock. Act of Feb. 13, 1925, ch. 229, § 12, 43 Stat. 941; codified as amended at 28 U.S.C. § 1349.*fn2 Since the effect of the 1925 law on non-stock corporations like the Red Cross is unclear, see, e.g., C.H. v. American Red Cross, 684 F. Supp. 1018, 1020-1022 (ED Mo. 1987) (noting split in authority over whether § 1349 applies to nonstock corporations),*fn3 its enactment invested the charter's "sue and be sued" clause with a potential jurisdiction significance previously unknown to it. Its text, nevertheless, was left undisturbed for more than twenty years further, until its current form, authorizing the Red Cross "to sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States," took shape with the addition of the term "State or Federal" to the 1905 language, as part of an overall revision of the organization's charter and by-laws, see Act of May 8, 1947, Pub. L. 80-47, § 3, 61 Stat. 80, 81. It is this language upon which the Red Cross relies, and which the Court of Appeals held to have conferred no federal jurisdiction.

III

A

As indicated earlier, we do not face a clean slate. Beginning with Chief Justice Marshall's opinion in 1809, we have had several occasions to consider whether the "sue and be sued" provision of a particular federal corporate charter conferred original federal jurisdiction over cases to which that corporation was a party, and our readings of those provisions not only represented our best efforts at divining congressional intent retrospectively, but have also placed Congress on prospective notice of the language necessary and sufficient to confer jurisdiction, see, e.g., United States v. Merriam, 263 U.S. 179, 186 (1923) (Congress presumed to intend judicially settled meaning of terms); Cannon v. University of Chicago, 441 U.S. 677, 696-698 (1979) (presuming congressional knowledge of interpretation of similarly worded earlier statute). Those cases therefore require visitation with care.

In Deveaux, we considered whether original federal jurisdiction over suits by or against the first Bank of the United States was conferred by its charter. The language in point authorized the Bank "'to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever,'" 5 Cranch, at 85. In the opinion written by Chief Justice Marshall, the Court held this language to confer no federal jurisdiction, reading it as a mere grant to the Bank of the normal corporate capacity to sue, id., at 85-86. The Court contrasted the charter's "sue and be sued" provision with one authorizing the institution of certain suits against the bank's officers "in any court of record of the United States, or of [sic] either of them," a provision the Court described as "expressly authorizing the bringing of that action in the federal or state courts," id, at 86. The Chief Justice concluded that this latter provision "evinced the opinion of congress, that the right to sue does not imply a right to sue in the courts of the union, unless it be expressed," ibid.

The same issue came to us again 15 years later in Osborn. By this time Congress had established the second Bank of the United States, by a charter that authorized it "to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all state courts having competent jurisdiction, and in any circuit court of the United States." Act of Apr. 10, 1816, ch. 44, § 7, 3 Stat. 266, 269. In its interpretation of this language, the Court, again speaking through Chief Justice Marshall, relied heavily on its Deveaux analysis, and especially on the contrast developed there between the first Bank charter's "sue and be sued" provision and its provision authorizing suits against bank officers, see Osborn, 9 Wheat., at 818. Holding that the language of the second Bank's charter "could not be plainer by explanation," ibid, in conferring federal jurisdiction, the Osborn Court distinguished Deveaux as holding that "a general capacity in the Bank to sue, without mentioning the Courts of the Union, may not give a right to sue in those Courts," ibid.

With the basic rule thus established, our next occasion to consider the issue did not arise until Bankers Trust, nearly a century later. The federal charter considered in that case authorized a railroad corporation "to sue and be sued, plead and be impleaded, defend and be defended, in all courts of law and equity within the United States." Act of Mar. 3, 1871, ch. 122, § 1, 16 Stat. 573, 574. Testing this language against that construed in Deveaux and Osborn, we concluded that it "did not literally follow" its analogues considered in either of the earlier cases, 241 U.S., at 304, but held, nevertheless, that it had "the same generality and natural import" as the clause contained in the first Bank charter. Thus, we followed Deveaux and found in the failure to authorize federal court litigation expressly no grant of federal jurisdiction, id., at 304-305.

Last came D'Oench, Duhme, where we held that the FDIC's charter granted original federal jurisdiction. That jurisdiction was not, we explained, "based on diversity of citizenship. Respondent, a federal corporation, brings this suit under an Act of Congress authorizing it to sue or be sued 'in any court of law or equity, State or Federal.'" 315 U.S., at 455-456 (citation and footnote omitted). It is perfectly true, as respondents stressed in argument, that in an accompanying footnote we quoted without comment another part of the same statute, providing that "'all suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States: Provided, That any such suit to which the Corporation is a party in its capacity as receiver of a State bank and which involves only the rights or obligations of depositors, creditors, stockholders and such State bank under State law shall not be deemed to arise under the laws of the United States,'" id., at 455-456, n. 2.*fn4 The footnote did not, however, raise any doubt that the Court held federal jurisdiction to rest on the terms of the "sue and be sued" clause. Quite the contrary, the footnote's treatment naturally expressed the subordinate importance of the provision it quoted. While as a state banks's receiver the FDIC might lose the benefit of the deemer clause as a grant of federal jurisdiction, the "sue and be sued" clause would settle the jurisdictional question conclusively, in any case.*fn5

B

These cases support the rule that a congressional charter's "sue and be sued" provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts. In Deveaux, the Court found a "conclusive argument" against finding a jurisdictional grant in the "sue and be sued" clause in the fact that another provision of the same document authorized suits by and against bank officers "in any court of record of the United States, or of either of them . . . ." See 5 Cranch, at 86. In contrasting these two provisions the Deveaux Court plainly intended to indicate the degree of specificity required for a jurisdictional grant.*fn6 That is certainly how the Osborn Court understood Deveaux, as it described the latter provision as an "express grant of jurisdiction," 9 Wheat., at 818, in contrast to the first Bank charter's "sue and be sued" provision, which, "without mentioning the courts of the Union," ibid, was held merely to give the Bank "a general capacity . . . to sue [but not] a right to sue in those courts," ibid.*fn7 The Osborn Court thus found a jurisdictional grant sufficiently stated in the second Bank charter's "sue and be sued" provision, with its express federal reference, remarking that "to infer from [ Deveaux ] that words expressly conferring a right to sue in those courts do not give the right, is surely a conclusion which the premises do not warrant," ibid.*fn8

Applying the rule thus established, in Bankers Trust we described the railroad charter's "sue and be sued" provision, with its want of any reference to federal courts, and, holding it up against its analogues in Deveaux and Osborn, we found it closer to the former.*fn9 Finally, in D'Oench, Duhme we based our finding of jurisdiction on the "sue and be sued" provision of the ...


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