Foy v. Schantz, Schatzman

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 31, 1997
• Docket: 95-4419
• Status: Published

Opinion

United States Court of Appeals,

Eleventh Circuit.

No. 95-4419.

Kaare FOY, Plaintiff-Appellant,

v.

SCHANTZ, SCHATZMAN & AARONSON, P.A., Defendant-Appellee.

March 31, 1997.

Appeal from the United States District Court for the Southern District of Florida. (No. 93-6490-CIV-NCR), Norman E. Roettger, Chief Judge.

Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge, and HARRIS*, Senior District Judge.

KRAVITCH, Senior Circuit Judge:

Congress has provided that, for the purposes of determining

diversity jurisdiction, "an alien admitted to the United States for

permanent residence shall be deemed a citizen of the State in which

such alien is domiciled." 28 U.S.C. § 1332(a). This case requires

us to determine, as an issue of first impression among the courts

of appeals, whether an alien who intends to reside in this country

permanently but who has not yet attained official permanent

resident immigration status (i.e., a green card) should be

considered an alien admitted for permanent residence within the

meaning of this section.

I.

On June 11, 1993, appellant filed this diversity action

* Honorable Stanley S. Harris, Senior U.S. District Judge for the District of Columbia, sitting by designation. 1 alleging legal malpractice against a Florida law firm. At that

time, he was an Australian citizen and a resident of Palm Beach

County, Florida. He had been living and working in Florida on a

temporary professional work visa since he came to this country in

the spring of 1989. Appellant had applied for, but had not yet

received, a green card from the Immigration and Naturalization

Service ("INS") when he filed this action.

During the third day of trial, the district court sua sponte

questioned appellant regarding his citizenship status. After

learning that appellant had resided in Florida for four years

before he filed this lawsuit and had paid United States income tax

during this period, the district court concluded that appellant was

"an alien admitted to the United States for permanent residence"

under § 1332(a), and thus a citizen of Florida for purposes of

diversity. Then, finding no diversity between the parties, the

district court dismissed the action for lack of subject matter

jurisdiction.

We review de novo a dismissal for lack of subject matter

jurisdiction. Woodruff v. United States Dept. of Labor, 954 F.2d

634, 636 (11th Cir.1992).

II.

The sole issue on appeal is whether appellant was "an alien

admitted to the United States for permanent residence" within the

meaning of § 1332(a) when he filed this action. As in all cases of

1 We recite only those facts necessary for the resolution of the jurisdictional question, which depends on the facts as they existed at the time the complaint was filed. See Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1114 n. 1, 1 L.Ed.2d 1205 (1957). statutory construction, we begin with the language of the statute.

Section 1332(a) refers to aliens "admitted" to this country for for

permanent residence. "Admit" is commonly understood to mean "to

allow entry" or "to give entrance or access." See Webster's Third

New International Dictionary (1986). The use of "admitted" in the

statute suggests that Congress intended § 1332(a) to apply to

individuals who have been allowed to enter this country for

permanent residence by the INS. The plain language of the statute

therefore directs courts to refer to an alien litigant's official

immigration status.

Reference to the immigration laws further supports this

interpretation of the statute. In that context, Congress has

defined a substantially similar phrase, "lawfully admitted for

permanent residence," to mean "the status of having been lawfully

accorded the privilege of residing permanently in the United States

as an immigrant in accordance with the immigration laws." 8 U.S.C.

§ 1101(a)(20) (emphasis added). The similarity of the language

used in the two different contexts suggests that Congress intended

to import § 1101(a)(20)'s definition into the diversity statute.

Appellee argues that the absence of the word "lawfully" in §

1332(a) indicates that Congress intended a different, more

subjective standard to apply in the jurisdictional context. In

several other contexts, however, Congress has referred to aliens

admitted to this country for permanent residence without using the

word "lawfully." See, e.g., 8 U.S.C. § 1186a(c)(4) (conditional

permanent resident status); 8 U.S.C. § 1255(a) (adjustment of

alien status); 18 U.S.C. § 2423 (criminal transportation of minors); 20 U.S.C. § 1145c (education); 22 U.S.C. § 6010 (foreign

relations). We find nothing in these statutes, or in § 1332(a),

indicating that Congress intended the omission of the word

"lawfully" to make "admitted to the United States for permanent

residence" depend upon anything other than official immigration

status.

Finally, nothing in the legislative history undermines the

plain language of § 1332(a). The permanent resident alien

provision of § 1332(a) was adopted in 1988 as part of the Judicial

Improvements and Access to Justice Act, Pub.L. No. 100-702, 102

Stat. 4642. This act was "clearly designed to improve federal

court administration and efficiency." Singh v. Daimler-Benz AG, 9

F.3d 303, 307 (3d Cir.1993) (discussing legislative history).

Given this goal, we find it highly unlikely that, as appellee

contends, Congress intended the federal courts to engage in a

fact-intensive, case-by-case analysis to determine whether each

individual alien litigant, regardless of his official immigration

status, actually intended to reside permanently in the United

States.2

2 The only reference in the legislative history to the permanent resident alien provision of § 1332(a) suggests that it was added to the statute to place permanent resident aliens "on equal footing with their U.S. citizen neighbors" by depriving them of their right to access federal courts based solely on their foreign citizenship. Aideyan v. Greaves, 908 F.Supp. 196, 197 (S.D.N.Y.1995); see also 134 Cong. Rec. 31,055 (1988) ("[T]here is no apparent reason why actions between persons who are permanent residents of the same State should be heard by Federal courts merely because one of them remains a citizen or subject of a foreign state.") (section-by-section analysis submitted by Sen. Hefflin). This reference sheds little light on how courts are to determine which aliens have been "admitted to the United States for permanent residence." Rather, we conclude that section 1332(a) plainly directs

courts to refer only to an alien litigant's official immigration

status to determine if the alien was "admitted to the United States

for permanent residence." Contrary to the court below but in

accord with every other district court that has specifically

addressed this issue, we hold that the permanent resident alien

provision of § 1332(a) applies only to aliens who have received

permission from the INS to remain permanently in this country.

See, e.g., Kato v. County of Westchester, 927 F.Supp. 714, 715

(S.D.N.Y.1996) (section applies only to aliens who have been

accorded lawful permanent resident status under the immigration

laws); Chan v. Mui, 1993 WL 427114, *1 (S.D.N.Y. Oct. 20, 1993)

(section does not apply to alien with pending green card

application); Miller v. Thermarite Pty. Ltd., 793 F.Supp. 306, 308

(S.D.Ala.1992) (section does not apply to alien with nonimmigrant

temporary worker status).3 Because appellant had not yet received

permanent resident status under the immigration laws when he filed

this complaint, we reverse the order of the district court

dismissing appellant's claim.

Appellee nevertheless urges us to affirm the dismissal of

appellant's claim on the alternative ground that the district court

3 Commentators are likewise in agreement that the permanent resident alien provision of § 1332(a) refers only to those aliens who have been accorded permanent resident status by the INS. See, e.g., 1 James Wm. Moore et al., Moore's Federal Practice ¶ 0.75[1.5], at 800.56 (1996) ("[I]t is clear that [§ 1332(a) ] affects only the status of those aliens with "green cards'—admitted to the United States for permanent residence."); 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure, § 3604, at 96 (1996) (language of § 1332(a) suggests that it refers only to aliens with green cards). previously should have dismissed appellant's action for failure to

state a claim. Because the denial of a motion to dismiss is not a

final order reviewable under 28 U.S.C. § 1291, we have jurisdiction

to review the district court's order denying appellee's motion to

dismiss only if it "merge[s] into a final judgment of the district

court." Akin v. PAFEC, Ltd., 991 F.2d 1550, 1563 (11th Cir.1993)

(holding that rulings on jury demand motions did not merge into

order granting summary judgment). Only those prior non-final

orders that "produced the [final] judgment" of the district court

are subject to our review on appeal. Id. (quoting Barfield v.

Brierton, 883 F.2d 923, 930 (11th Cir.1989)); see also U.S.

Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099,

1103 (9th Cir.1985) (noting that appellate jurisdiction of

non-final orders extends only to those rulings "that may have

affected the outcome of proceedings in the district court").

Because the denial of the motion to dismiss in this case did not

produce or otherwise lead to the jurisdictional dismissal, our

appellate jurisdiction does not extend to that prior, non-final

order.4

4 Even if the denial of the motion to dismiss could be said to have produced the jurisdictional dismissal (by not disposing of the case earlier), our decision to reverse the district court's jurisdictional dismissal precludes a review of the motion to dismiss. When a court reverses the order terminating the proceedings, "there no longer exists a final judgment which supports this court's review of interlocutory orders." Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 26 (9th Cir.1981); see also Akin, 991 F.2d at 1563, n. 18 (reversal of final judgment returns previously merged orders to non-final interlocutory status); Milan Express Co., Inc. v. Western Surety Co., 886 F.2d 783, 785 n. 1 (6th Cir.1989) (court's reversal of order dismissing for lack of subject matter jurisdiction removes final judgment necessary to support review of other issues). Finally, because the jurisdictional facts are in no way

related, let alone "inextricably interwoven," with the facts

underlying the merits of this case, our pendent appellate

jurisdiction cannot support our review of the motion to dismiss.

See Harris v. Board of Education of the City of Atlanta, 105 F.3d

591, 594 (11th Cir.1997) (noting that "pendent appellate

jurisdiction is limited to questions that are "inextricably

interwoven' with an issue properly before the appellate court")

(citing Swint v. Chambers County Commission, 514 U.S. 35, ----, 115

S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995)).

III.

Accordingly, we REVERSE the district court's order dismissing

appellant's claim, and REMAND the case for proceedings consistent

with this opinion.