Handling Dual Citizenship in Diversity Jurisdiction: A Question of Domicile and Fairness

The Supreme Court of the United States has never ruled on whether a person with dual citizenship (citizenship from both the United States and a foreign country) is an alien, a U.S. citizen, or both, for the purposes of diversity jurisdiction. In this article, I will first explain diversity jurisdiction, and then I will propose a stance that courts should take in situations regarding a dual citizen who is attempting to enter his case into the federal court system under diversity jurisdiction.

In order to bring a case to a federal court, the federal court must have subject matter jurisdiction over the parties. One way for which a federal court to attain subject matter jurisdiction over prospective parties is through diversity jurisdiction. 28 U.S.C. § 1332 is the controlling authority in determining the standards required for achieving diversity jurisdiction:

(a)

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

Diversity of Citizenship; Amount in Controversy; Costs, 28 U.S.C. § 1332 (2015)

In essence, diversity jurisdiction under 28 U.S.C. 1332 allows citizens who are domiciled in different States from one another to sue each other in federal court (one's domicile is determined by their physical presence in a State and one's intent to reside there permanently). However, the rules of diversity jurisdiction do not take into account a situation where someone holds dual citizenship.

Should people with dual citizenship be considered aliens? If so, two people with dual citizenship could not attain diversity jurisdiction unless they had U.S. citizens on each side of the lawsuit. Should people with dual citizenship be considered U.S. citizens? If so, a foreigner who has potentially never set foot in the United States would be allowed to use the resources of the federal court system. As we can see, there is no easy answer, as each solution presents a new set of problems.

In order to determine how people with dual citizenship should be viewed with regards to diversity jurisdiction, we should look to the solution which is most aligned with preserving the goals of diversity jurisdiction. The goals of diversity jurisdiction are: 1) to prevent State bias against out-of-State parties; and 2) to allow easier access to the federal court system to people who contribute to the United States' society. I believe that using a dual citizen's domicile is the best way to determine his status for diversity jurisdiction because this method best preserves the goals of diversity jurisdiction. Before I explain why domicile is the best method to determine a dual citizen's status regarding diversity jurisdiction, I will show why the alternative methods are problematic.

Considering a dual citizen both an alien and a U.S. citizen would get too messy. Such a rule would require many situations where we would have to actually differentiate whether a party is an alien or a citizen. Could they sue an alien without a U.S. citizen on either side of the lawsuit? While they would be considered a U.S. citizen, they would also be considered an alien, and aliens are not allowed to sue other aliens without U.S. citizens on either side of the lawsuit. Diversity of Citizenship; Amount in Controversy; Costs, 28 U.S.C. § 1332 (2015). So, a court would need to determine whether they were considered an alien or a U.S. citizen in that case. Considering them both aliens and U.S citizens will raise all sorts of complications and would not accomplish much in protecting the goals of diversity jurisdiction.

Considering dual citizens as aliens would be unfair. What if the dual citizen (who would be considered an alien) lives in California, has lived there his entire life, and wants to sue an alien? He wouldn't be able to because aliens are not able to sue each other without USA citizens on either side of the case. Diversity of Citizenship; Amount in Controversy; Costs, 28 U.S.C. § 1332 (2015). This does not seem fair. The dual citizen should be considered a U.S. citizen for all intents and purposes because his domicile was in California: he lived in the United States his entire life and should have all of the other rights and benefits that U.S. citizens have. He should not need to have to get other citizens on either side of a case in order to sue against aliens that have wronged him. Considering a dual citizen an alien solely because he is also the citizen of another country runs against the goals of diversity jurisdiction in allowing easier access to the federal court system to people who contribute to the United States.

Considering dual citizens as only U.S. citizens is unfair to other U.S. citizens. If a dual citizen lived his entire life in France but later moves to California, he should not be able to come to the United States and use the federal system to his benefit when he did not do a single thing to earn the benefit of such protection (if he were considered a U.S. citizen he would be able to sue U.S. citizens without U.S. citizens on both sides of the lawsuit). The federal system should be used to serve the people of the USA, not those of foreign countries that find some technicality around the rules in order to serve their own purposes. It would be unfair to the rest of the U.S. citizens to allow a person who has lived his entire life in a different country to have the same ease of access to the federal system as a citizen who has lived in the United States his entire life. This could also cause a massive influx in federal cases, as dual citizens living abroad might want to use the superior federal court system of the United States. This could overburden the resources of the federal courts, and lead to the federal courts not taking cases of actual U.S. citizens.

The fairest way that I believe we can solve this issue is to give dual citizens the status as their domicile suggests. If they have a foreign domicile, they should be considered aliens. If they have a U.S. State domicile, they should be considered U.S. citizens. In this way, they will be protected from out of State bias if they are living in the U.S., but are not protected from it if they are living abroad. This method also gives more ease of access to people that live in the United States than people living outside of them. We want to give more rights to those that contribute more to our society, and allow them easier access to our federal court system.

However, this solution also presents problems, as there could be situations where people have lived in the U.S. their entire life, moved to a different country, and then want to use the federal court system. If their domicile had changed to a foreign country, they would be considered aliens even though they lived the majority of their life in the United States and contributed to greatly to our society. Unfortunately, there is no easy solution that I can think of. It seems that there will always be problems attached to any solution to the dual citizenship issue. In the end though, using domicile to determine a dual citizen's citizenship status is the fairest solution and best preserves the goals of diversity jurisdiction.