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.
