Legal Memorandum: Citizen and Subject of a Foreign State

Issue: For purposes of the diversity jurisdiction statute, 28 U.S.C. 1332(a)(2), what is the difference between a citizen of a foreign state and a subject of a foreign state?

Area of Law: Constitutional Law, Litigation & Procedure
Keywords: Diversity jurisdiction statute; Subject of a foreign state; Citizen of a foreign state
Jurisdiction: Federal
Cited Cases: 213 F. Supp. 756; 324 F.2d 956; 536 U.S. 88
Cited Statutes: 28 U.S.C. § 1332, § 1332(a)(1), (2)
Date: 05/01/2005

Under 28 U.S.C. § 1332, a federal district court has original jurisdiction over claims in which more than $75,000 in damages is at stake and the action is between (1) citizens of different States [or] citizens of a State and citizens or subjects of a foreign state.  28 U.S.C. § 1332(a)(1), (2) (2004).  The diversity statute, however, does not define the terms “citizen” and “subject” as used in § 1332(a)(2).  Nonetheless, it appears clear that the two terms are synonymous for purposes of alienage jurisdiction.

Generally, the distinction between a citizen of a foreign state and a subject of a foreign state depends on the rights enjoyed by each under the laws of the foreign state.  J.P. Morgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., 536 U.S. 88, 99 (2002).  “Although the word ‘citizen’ may imply (and in 1789 and 1875 may have implied) the enjoyment of certain basic rights and privileges, a ‘subject’ is merely ‘[o]ne who owes allegiance to a sovereign and is governed by that sovereign’s laws.'”  Id. (quoting Black’s Law Dictionary 1438 (7th ed. 1999)).  This distinction, however, is immaterial for purposes of alienage jurisdiction under § 1332(a)(2).

In Van Der Schelling v. U.S. News & World Rep., 213 F. Supp. 756 (E.D. Pa. 1963), aff’d 324 F.2d 956 (3d Cir.) (per curiam), the court entertained the distinction between a citizen and a subject from an historical perspective.  There, the court examined historical documents drafted by the framers of […]

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