Consistent “Deeming”: A Cohesive Construction of 28 U.S.C. § 1332 in Cases Involving International Corporations and Permanent-Resident Aliens.


Two categories of alienage-jurisdiction cases have proven troublesome: cases involving permanent-resident aliens and cases involving international corporations. Jurisdiction in these categories depends upon the construction of 28 U.S.C. § 1332’s deeming provisions. The permanent-resident deeming provision and the corporate deeming provision operate uncontroversially to remove certain cases from federal jurisdiction, but controversy exists as to what extent they create jurisdiction that did not exist before the amendments that added the deeming provisions. The results and analytical approaches in these categories have varied, and the resulting confusion is unsatisfactory. The cases in this area are plagued by a structural flaw—while framing their analyses in terms of “clear” or “unambiguous” text, the courts have actually imposed no construction at all, instead jumping extratextually to the what-would-Congress-have-wanted question. Further, the courts faced with cases in each category have decided the cases without reference to the other category.

My solution is a modest one but provides the consistency needed in a jurisdictional inquiry. I give the words “shall be deemed” a consistent construction in the two deeming provisions and resolve the missing-word problem that lurks in the background. Under my solution, the words “shall be deemed” perform a simple function in the deeming provisions—they confer State citizenship on certain litigants. But they do not strip a party of preexisting alien status. When construed this way and combined with the § 1332(a) jurisdiction-granting subcategories, the deeming provisions create no jurisdiction that did not exist before the deeming provisions.

My solution provides several benefits. First, it provides the consistency and coherence needed in a jurisdictional inquiry. Second, it is textually faithful and gives effect to the similar language used in the deeming provisions and differing language used elsewhere in § 1332. And third, it avoids the constitutional problems that arise under alternative construction. To be sure, one might conjure up scenarios where, in the view of the conjurer, exercising jurisdiction would better serve the purposes of alienage jurisdiction. But those scenarios are rare, and desirability of results cannot distort the task—giving effect to the statute. Among permissible solutions, mine yields the best results. It simply is not an acceptable method of statutory interpretation to determine: when no construction yields the construer’s desired result in every case, the statute need be given no construction except what Congress should have intended in each case.



Date of this Version

June 2006