Biermann, Dirk T.

English

University of Denver

Denver Journal of International Law & Policy Volume 9 Number 2 Summer Article 9 May 2020 Federal Diversity Jurisdiction for Naturalized Dual Nationals - Sadat v. Mertes Dirk T. Biermann Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation Dirk T. Biermann, Federal Diversity Jurisdiction for Naturalized Dual Nationals - Sadat v. Mertes, 9 Denv. J. Int'l L. & Pol'y 271 (1980). This Comment is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. Federal Diversity Jurisdiction forNaturalized Dual Nationals-Sadat v.MertesMoheb A.H. Al Sadat, a naturalized American citizen who was alsoan Egyptian citizen, brought an action in United States District Court torecover damages for injuries allegedly sustained in an automobile acci-dent in Wisconsin. At the time of the accident Sadat was a domiciliary ofPennsylvania. When the action was brought, however, he was residing inEgypt. Sadat invoked the court's jurisdiction based on "diversity of citi-zenship" since the defendants were either citizens of Wisconsin or Con-necticut. The United States District Court for the Eastern District ofWisconsin dismissed the action for lack of subject matter jurisdiction. Be-cause of the plaintiff's connection with Egypt, he was not a "citizen" ofPennsylvania for the purposes of diversity.'On appeal,' Sadat based two of his three arguments on the diversitysection of the U.S. Code, which states:The district courts shall have original jurisdiction of all civil actionswhere the matter in controversy exceeds the sum or value of $10,000,exclusive of interest and costs, and is between-(1) citizens of different States;(2) citizens of a State and citizens or subjects of a foreignstate;(3) citizens of different States and in which citizens or subjectsor a foreign state are additional parties; and(4) a foreign state, defined in section 1603(a) of this title, asplaintiff and citizens of a State or of different States.'First, Sadat argued that he was domiciliary of Pennsylvania andcould thus be considered a citizen of a state for purposes of diversity ju-risdiction. Second, he argued that by virtue of his dual American-Egyp-tian citizenship he was a citizen of a foreign state and therefore jurisdic-tion existed for the purposes of alienage jurisdiction, that is, he was a"subject" of a foreign state.4 Third, he argued that the defendants shouldhave been estopped from questioning the jurisdiction of the court sincetwo years had lapsed from the filing of the action before the defendantsasserted the jurisdiction defense. The Court of Appeals summarily dis-posed of the first and third contentions. It found that Sadat was not adomiciliary of Pennsylvania at the time the action was commenced, find-1. Sadat v. Mertes, 434 F. Supp. 1311 (E.D. Wis. 1979).2. 615 F.2d 1176, 1177 (7th Cir. 1980).3. 28 U.S.C. § 1332(a) (1976).4. The power conferred on the federal courts by 28 U.S.C. § 1332(a)(2) is often referredto as alienage jurisdiction.JOURNAL OF INTERNATIONAL LAW AND POLICYing instead that he was an American citizen domiciled abroad and there-fore not a citizen of a State for purposes of diversity.'Sadat contended, and the court of appeals admitted, that Egypt hadconsented to his request for permission to acquire American citizenshipbut that that consent was conditioned upon his retention of his Egyptiancitizenship. The court recognized that the generally accepted test for de-termining whether a party to a suit is a foreign citizen is whether thecountry whose citizenship is claimed would recognize the party as one ofits citizens. The court stated that "whether a person possessing dual na-tionality should be considered a citizen or subject of a foreign state withinthe meaning of 28 U.S.C. § 1332(a)(2) [was] a question of first impressionin the courts of appeals." Two other district courts had reached "seem-ingly different conclusions '" in their encounters with the question.In the case of Aguirre v. Nagel,' the plaintiff was a native-bornAmerican citizen who possessed dual nationality by virtue of her parents'Mexican citizenship. Since both the minor plaintiff and the defendantwere citizens of the same state the trial court agreed with the defendant'scontention that the court lacked jurisdiction through diversity. The courtfound that the position of the plaintiff as a citizen of Mexico, despite herAmerican citizenship, placed her squarely within the provisions of subsec-tion (a)(2) of 28 U.S.C. § 1332, that is, "a citizen or subject of a foreignstate."The Court of Appeals in Sadat found "[t]he Aguirre court's opiniondid no more than determine that the cause fell within the literal languageof the statute without regard to the policies underlying alienage jurisdic-tion."9 The court noted that the decision was criticized by commentators,but the principle focus of those critics dealt with the fact that the Aguirredecision violated the rule of complete diversity established in the earlySupreme Court case of Strawbridge v. Curtiss0 since both parties wereresidents (and thus citizens) of the same state. As pointed out by one ofthe critics cited by the Sadat court of appeals, the Aguirre decision isalso inconsistent with the accepted rule that both citizenships of a corpo-ration (the state in which it is chartered and the state of its principalplace of business) must be considered to determine if jurisdiction existsunder diversity." If any of the parties opposing the corporation is a citi-zen of either of the states of which the corporation is a citizen, diversityjurisdiction will not be found. Since Sadat was not a citizen of the samestate as any of the defendants, finding jurisdiction under subsection (2) of5. 615 F.2d at 1178.6. Id. at 1185.7. The District Court for the Eastern District of Wisconsin was a third court to con-sider the question.8. 270 F. Supp. 535 (E.D. Mich. 1976).9. 615 F.2d at 1185.10. 7 U.S. (3 Cranch) 267 (1806).11. See, e.g., Brocon v. Clorox Co., 56 Cal. App. 3d 306, 128 Cal. Rptr. 385 (1976).VOL. 9:271RECENT DEVELOPMENTS28 U.S.C. § 1332(a) would not have violated the complete diversity re-quirement established in Strawbridge, nor would it have offended therule with respect to corporations.A contrary view was offered by the District Court for the CentralDistrict of California in Raphael v. Hertzberg,12 in which a recently natu-ralized British subject asserted dual nationality as the basis for federaljurisdiction. The plaintiff and all of the defendants were residents of Cali-fornia. The court found that the holding in Aguirre violated the require-ment of complete diversity established in Strawbridge and dismissed theplaintiff's claim upon the finding that he did not possess dual citizenshipbut was only a citizen of the United States since he was required to re-nounce his allegiance to Britain in order to acquire his Americancitizenship.Although the Raphael decision was founded upon Raphael's renunci-ation of his allegiance to Great Britain, the court noted in dicta severalpolicy reasons to reject the plaintiff's claim even if he were found to be adual national. Besides violating the complete diversity requirement inStrawbridge, the court noted that there was "no reason to expect biasfrom state courts'" where both parties are residents of the same state.Moreover, there would be little reason to expect Great Britain to be af-fronted by a decision affecting one of its subjects if that decision was notmade on a national level since the plaintiff had voluntarily subjected him-self both to the laws of the United States and of the individual states bychoosing to become an American citizen. Finally, the court concluded thatopening the federal courts to naturalized citizens based on the concept ofdual nationality would render their rights superior to those of native-bornAmerican citizens by providing the former with greater access to federalcourts than the latter.The court of appeals in Sadat rejected the holding set forth in theRaphael decision and adopted the rationale set forth in the dicta. In itsanalysis, the court first set forth the reasoning behind alienage jurisdic-tion, citing Hamilton's Federalist Paper No. 80 for the proposition that"the peace of the whole ought not to be left at the disposal of the part.""'Alienage jurisdiction is designed to insure the maintenance of harmonywith foreign states by handling suits involving their citizens at a nationalrather than local level, as well as to protect against the failure of individ-ual states to give protection to foreigners under treaties. The court con-tinued to state the general test for the determination of foreign citizen-ship for the purposes of alienage jurisdiction, that is, "whether thecountry in which citizenship is claimed would so recognize" the claimantas a citizen.1 5 By recognizing the "right of each country to determine who12. 470 F. Supp. 984 (C.D. Cal. 1979).13. Id. at 986.14. 615 F.2d at 1182.15. Id. at 1183.1980JOURNAL OF INTERNATIONAL LAW AND POLICY. ..its nationals are,"1 6 the court seemed to be setting Sadat up for cov-erage squarely within the literal language of subsection (a)(2). Unlike theRaphael court, however, the Sadat court of appeals made no finding thatthe plaintiff's naturalization and renunciation of allegiance to foreignstates or sovereignties resulted in the recognition by U.S. courts of onlyone citizenship-his U.S. citizenship-for purposes of jurisdiction. Thus,although the court noted that the U.S. Government's official policy is todiscourage dual nationality, it also noted that U.S. courts and the StateDepartment consistently have recognized its existence.Having found that Sadat possessed dual citizenship, being a citizenof both the United States and Egypt, the court determined that Sadatwas not a citizen or subject of a foreign state within the meaning of 28U.S.C. § 1332(a)(2). Rather than relying on the literal language of thestatute, which it accused the Aguirre court of doing, it followed the dictaof Raphael and looked to the policies underlying alienage jurisdiction tofind that the statute was not meant to cover a foreign citizen who wasalso a United States citizen.There is authority for such a liberal interpretation of the statute.17 Ingoing beyond the literal language of the statute, the court stated that"the paramount purpose of the alienage jurisdiction provision [is] toavoid offense to foreign nations because of the possible appearance of in-justice to their citizens."18 The court cited the Restatement (Second) ofForeign Relations Law" for the principle that a national is not responsi-16. Id.17. As stated in United States v. American Trucking Associations, 310 U.S. 534 (1940):There is, of course, no more persuasive evidence of the purposes of a statutethan the words by which the legislature undertook to give expression to itswishes. Often these words are sufficient in and of themselves to determine thepurpose of the legislation. In such cases we have followed their plain meaning.When that meaning has led to absurd or futile results, however, this Court haslooked beyond the words to the purpose of the act. Frequently, however, eventhe plain meaning did not produce absurd results but merely an unreasonableone 'plainly at variance with the policy of the legislation as a whole' this Courthas followed that purpose, rather than the literal words. When aid to construc-tion of the meaning of words, as used in the statute, is available, there cer-tainly can be no 'rule of law' which forbids its use, however clear the wordsmay be on 'superficial examination.' The interpretation of the meaning of thestatutes is exclusively a judicial function. This duty requires one body of pub-lic servants, the judges, to construe the meaning of what another body, thelegislators, has said. Obviously there is danger that the courts' conclusion as tolegislative purpose will be unconsciously influenced by the judges' own views orby factors not considered by the enacting body. A lively appreciation of thedanger is the best assurance of escape from its threat but hardly justifies anacceptance of a literal interpretation dogma which withholds from the courtsavailable information for reaching a correct conclusion.Id. at 543-44.18. 615 F.2d at 1186.19. RzSTATEMENT (SzcoaN) or THE FOREIGN RELATIONS LAW OF THE UNrrE STATES§ 171 (1965).VOL. 9:271RECENT DEVELOPMENTSble to another nation under international law for conduct which is wrong-ful to a citizen of the latter state when he is also a citizen of the formerstate. By analogy, the court held that ordinarily "only the American na-tionality of the dual citizen should be recognized under 28 U.S.C. §1332(a)." The court stated:This rule recognizes that in the usual case a foreign country cannotcomplain about the treatment received by one of its citizens by acountry which also regards that person as a national. This principlesuggests that the risk of 'entanglements with other sovereigns thatmight ensue from failure to treat the legal controversies of aliens on anational level,' Blair Holdings Corp. v. Rubinstein, 133 F. Supp. at500, is slight when an American citizen is also a citizen of anothercountry and therefore he ordinarily should only be regarded as anAmerican citizen for purposes of 28 U.S.C. § 1332(a). 20The court also recognized the exception to the general rule in the conceptof "effective or dominant nationality. 21 The court found that Sadat's vol-untary nationalization in the United States, as well as his actions subse-quent to his naturalization, precluded him from invoking 28 U.S.C. §1332(a)(2) based on such-an exception.The court's decision leaves open the possibility of an American dualnational invoking federal jurisdiction under 28 U.S.C. § 1332(a)(2). Byrecognizing dual citizenship, the concept of dominant nationality, andrecognizing that a person's citizenship is not exclusively determinable bythe laws of the forum state, the court fails to preclude U.S. citizens en-tirely from invoking federal jurisdiction under 28 U.S.C. § 1332(a)(2). Forexample, if the plaintiff in Aguirre had not been a resident of the samestate as the defendant and was able to establish that her dominant na-tionality was Mexican (based on her parents' citizenship and intent toreturn to Mexico), the Sadat court of appeals seems to indicate that itwould find jurisdiction to exist. The court also makes clear that the com-plete diversity requirement for corporations with regard to state citizen-ship is not always applicable by analogy to cases involving diversity ofnational citizenship. As the court pointed out under the corporationsanalogy, an American dual national would thus be able to assert his for-eign nationality to avoid federal jurisdiction in an action by a non-na-tional of the United States. As the court stated, "[a]rguably, cases such asthis are precisely those in which a federal forum should be afforded theforeign litigant in the interest of preventing international friction.""2Dirk T. Biermann20. 615 F.2d at 1187.21. Id.22. Id. at 1186.1980

Federal Diversity Jurisdiction for Naturalized Dual Nationals - Sadat v. Mertes

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Federal Diversity Jurisdiction for Naturalized Dual Nationals - Sadat v. Mertes

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