United States Court of Appeals Fifth Circuit 

## FILED October 5, 2004 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-50865

SARAH JENKINS HORTON; GEORGE LEON MATASSARIN, Plaintiffs-Counter Defendants-Appellants,

versus BANK ONE, N.A.; Defendant-Counter Claimant-Appellee,
BANK ONE CORPORATION; BANK ONE WISCONSIN, Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas

Before GARWOOD, HIGGINBOTHAM, and SMITH, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: Sarah Jenkins Horton appeals the district court’s rejection of her contention that for purposes of its diversity jurisdiction, a national bank is a citizen of each and every state in which it has a branch. We affirm.

I The facts underlying this dispute involve a retail installment contract for the purchase of a vehicle by Horton. In 2002, Horton filed suit against Bank One in Texas state court alleging violations of several consumer-protection-type statutes1 See 28 U.S.C. § 1292(b).

2 Union Planters Bank Nat’l Ass'n v. Salih , 369 F.3d 457, 460 (5th Cir. 2004). 2 and asserting several common-law claims. In February 2003, Horton sent a settlement offer to Bank One. This offer put Bank One on notice for the first time that the amount in controversy exceeded $75,000. Bank One immediately removed the case to federal district court. Horton moved to remand arguing that there was no federal jurisdiction because complete diversity of citizenship was lacking. Horton reasoned that, because Bank One had branches in Texas, it was “located” in Texas and was thus a citizen of Texas. After rejecting Horton’s reasoning and denying Horton’s motion to remand, the district court granted her motion to certify the order for interlocutory appeal and we granted leave to appeal. The specific issue certified for this appeal is whether national banking associations are citizens of every state in which they have a branch.

II We have jurisdiction 1 and we review de novo the district court’s finding of jurisdiction. 2 28 U.S.C. § 1348 provides that for purposes of diversity jurisdiction, “[a]ll national banking associations shall . . . be deemed citizens of the States in which they are respectively located.” We must decide the meaning of “located.” Horton3 Baker v. First Am. Nat’l Bank , 111 F.Supp.2d 799, 800 (W.D.

La. 2000); see also Fin. Software Sys. v. First Union Nat’l Bank , 84 F.Supp.2d 594, 602 (E.D. Pa. 1999).

4 Firstar Bank , N.A. v. Faul , 253 F.3d 982, 985 (7th Cir. 2001).

5 785 F.Supp. 30 (D.R.I. 1992).

6 Id. at 31-32. 3 argues that Bank One is a citizen Texas because it has branches in Texas, while Bank One claims that it is a citizen only of Illinois - the state of its principal place of business and the state listed in its organization certificate. Until recently no circuit had addressed the meaning of “located” in section 1348. Prior to 1992, the “unquestioned” and “longstanding interpretation” was that “located” did not include the branches of a national bank. 3 From 1992 to 2001, the majority of district courts that addressed this issue concluded that under section 1348, a national bank is a citizen of every state in which it has a branch, 4 led by the District of Rhode Island’s opinion in Connecticut National Bank v. Iacono

. 5 Pointing to a Supreme Court case in 1977 and changes in the law involving national banks, the court in Iacono decided to reexamine the meaning of “located,” even though a 1943 case “appear[ed] to have settled the matter.” 6 A minority of district courts, however, remained7 See, e.g. , Fin. Software Sys. , 84 F.Supp.2d at 602-07;

Baker , 111 F.Supp.2d at 800-01.

8 Firstar , 253 F.3d at 994.

9 See, e.g. , Adams v. Bank of Am., N.A. , 317 F.Supp.2d 935, 941-42 (S.D. Iowa 2004); Evergreen Forest Prods. of Ga., LLC v. Bank of Am., N.A. , 262 F.Supp.2d 1297, 1307 (M.D. Ala. 2003); Bank One, N.A. v. Euro-Alamo Invs., Inc ., 211 F.Supp.2d 808, 810 (N.D. Tex. 2002) (agreeing with “well-reasoned Firstar Bank

- line” of cases).

10 Citizens & S. Nat’l Bank v. Bougas , 98 S.Ct. 88, 93 (1977). 4 unpersuaded by Iacono ’s analysis and conclusion. 7 In 2001, the Seventh Circuit in Firstar held that “for purposes of 28 U.S.C. § 1348 a national bank is ‘located’ in, and thus a citizen of, the state of its principal place of business and the state listed in its organization certificate.” 8 Firstar analyzed the text, history, and purpose of section 1348 and its predecessors. While no other circuit has yet ruled on this issue, every district court that has since confronted it has agreed with Firstar

. 9

III We follow Firstar ’s holding that a national bank is not “located” in, and thus not a citizen of, every state in which it has a branch.

A In construing another provision containing “located,” the Supreme Court recognized that “[t]here is no enduring rigidity about the word ‘located.’” 10 The language of section 1348 is11 United Servs. Auto. Ass’n v. Perry , 102 F.3d 144, 149 (5th

Cir. 1996) (per curiam).

12 Bragdon v. Abbott , 118 S.Ct. 2196, 2208 (1998).

13 Firsta r , 253 F.3d at 988 (citing C otton Sav. Ass’n v. Comm’r , 111 S.Ct. 1503, 1508-09 (1991) (stating that by leaving a statute “undisturbed through subsequent reenactments of the [Act],” the Court “may presume that Con gress intended to codify [the related] principles” represented by the Court’s contemporary decisions)).

14 Firstar , 253 F.3d at 988. 5 therefore ambiguous, and this court “will look to legislative history to clarify the purpose” of the statute. 11 “When . . . judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its . . . judicial interpretations as well.” 12 Further, “courts presume that Congress will use clear language if it intends to alter an established understanding about what a law means; if Congress fails to do so, courts presume that the new statute has the same effect as the older version.” 13

B Firstar found that the history of section 1348 and its predecessors makes plain Congress’s intent to grant national banks and state banks and corporations equal access to diversity jurisdiction. 14 When national banks were first created in 1863, federal courts had jurisdiction over any suit involving a15 Id. a t 986 (citing P etri v. Commercial Nat’l Bank of

Chicago , 12 S.Ct. 325, 326 (1892)).

16 Petri , 12 S.Ct. at 326.

1 7 Act of July 12, 1882, ch. 290, § 4, 22 Stat. 162, 163 (emphasis added).

18 Fin. Software Sys. , 84 F.Supp.2d at 600 (citing Le ather Mfrs.’ Nat’l Bank v. Cooper , 7 S.Ct. 777, 778 (1887)). 6 national bank. 15 In 1864, Congress added that any such case could also be brought in state court. 16 In 1882, however, Congress trimmed federal jurisdiction over cases involving national banks: [T]he jurisdiction for suits hereafter brought by or against any association established under any law providing for national-banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national-banking associations may be doing business when such suits may be begun . . . . 17 The apparent purpose of the 1882 statute was to “eliminate automatic federal question jurisdiction over all cases involving national banks.” 18 In 1887, Congress superseded the 1882 Act and first used the phrase that appears today in section 1348. The 1887 Act proclaimed: [A]ll national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located ; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between19 Act of March 3, 1887, ch. 373, § 4, 24 Stat. 552, 554-55

(emphasis added).

20 Leather Mfrs.’ Nat’l Bank , 7 S.Ct. at 778 (emphasis added).

21 I d. ; see also Mercantile Nat’l Bank v. Langdeau , 83 S.Ct. 520, 526 (1963) (“Section 4 [of the 1882 Act] apparently sought to limit, with exceptions, the access of national banks to, and their suability in, the federal courts to the same extent to which nonnational banks are so limited .” (emphasis added)); Petri , 12 S.Ct. at 327 (“No reason is perceived why it should be held that congress intended that national banks should not resort to federal tribunals as other corporations and individual citizens might.”).

22 Fin. Software Sys. , 84 F.Supp.2d at 600.
7 individual citizens of the same State. 19 The Supreme Court has concluded that the objective of the 1882 and 1887 Acts was to create jurisdictional parity between national banks on the one hand and state banks and corporations on the other. Interpreting the 1882 Act, the Supreme Court observed that it “was evidently intended to put national banks on
the same footing as the banks of the state where they were located for all the purposes of the jurisdiction of the courts of the United States.” 20 For jurisdictional purposes, a national bank was placed “before the law . . . the same as a bank not organized under the laws of the United States.” 21 In the Judicial Code of 1911, Congress changed the structure of the jurisdictional provision of the 1887 Act, but retained its language regarding citizenship. 22 The design of the change was merely “to make the purpose of the re-enacted statute clearer”23 Herrmann v. Edwards , 35 S.Ct. 839, 842 (1915). S ee also Am.

Sur. Co. v. Bank of Ca. , 133 F.2d 160, 161-62 (9th Cir. 1943) (holding nati onal bank with branch in Oregon was not citizen thereof for diversity purposes under predecessor of section 1348).

24 See Act of June 25, 1948, ch. 646, 62 Stat. 933.

25 See Bragdon , 118 S.Ct. at 2208; Cotton Sav. Ass’n , 111 S.Ct. at 1508-09.

26 Firstar held that a national bank is located in, and therefore a citizen of, the state of its principal place of business and the stat e listed in its organization certificate. 8 rather than to make a fundamental change. 23 Finally, in 1948 Congress amended the Judicial Code and enacted section 1348 in its present form. 24 It is then plain that Congress enacted section 1348 against a backdrop of equal access to the federal courts for national banks, state banks, and corporations. Because section 1348 does not have any language modifying or rejecting the interpretive understanding that came with its predecessors, this court should presume that Congress intended to retain and incorporate the existing interpretive backdrop. 25 It follows that we should read section 1348 as retaining its objective of jurisdictional parity for national banks vis-à-vis state banks and corporations.
C We are persuaded that this goal of jurisdictional parity is best served by interpreting “located” as referring to a national bank’s principal place of business as well as the state specified in the bank’s articles of association. 26 Since a state bank,Firstar , 253 F.3d at 994. The OCC filed an a micus brief in

Firstar , as it has in this case. Id. at 984. Following Firstar , the OCC issued an interpretive letter reaffirming its suppo rt of “the interpretation of the statute and fundament al reasoning” of the Firstar court. OCC Interpretive Letter No. 952, 2002 WL 32072482, at *4 (Oct. 23, 2002). The OCC, however, indicated that Firstar’s “use of the state listed in the organization certificate as the analogue to the state of incorporation was incomplete” and that a more thorough articulation of the position would be that “a nation al bank is a citizen of the state in which its princip al place of business is located and of the state that was originally designated in its organization certificate and articles of association or . . . the state to which that designation has been changed under other authority.” Id. In a recent case construing section 1348, a distr ict court held “that a national bank is ‘located’ in, and thus a citizen of, the state of its principal place of business and the state listed in its most recent articles of association.” E vergreen , 262 F.Supp.2d at 1307. While the OCC’s position and E vergreen d o represent a more complete holding than that in Firstar , because Illinois is the state of Bank One’s principal place of business, the state listed on its organization certificate, and the state listed in its most recent articles of association, it is not n ecessary to decide whether to use the “organization certificate” test or the “articles of association” test.

27 Firstar , 253 F.3d at 993; Evergreen , 262 F.Supp.2d at 1307. 9 under 28 U.S.C. § 1332(c)(1), may be a citizen of no more than two states - the state where its principal place of business is located and its state of incorporation - maintaining jurisdictional parity between a national and state bank requires that the national bank have no more than two possible states of citizenship. 27 Horton’s position - that the national bank would be located in, and therefore a citizen of, each state in which it has a branch - would restrict a national bank’s access to federal court28 83 S.Ct. at 521-22.

29 Id. at 526. 10 under diversity jurisdiction, without similarly restricting a state bank.

D Horton accepts that parity was intended, but offers a quite different view of what that parity is. Horton argues that Bank One does not seek the parity that Congress intended to achieve with the 1882 and 1887 Acts. Horton points to Mercantile National Bank v. Langdeau , deciding venue in state courts for suits against national banks. 28 In determining whether the jurisdictional provisions of the 1882 Act had implicitly repealed an earlier venue provision, the Supreme Court explained that “[s]ection 4 apparently sought to limit, with exceptions, the access of national banks to, and their suability in, the federal courts to the same extent to which non-national banks are so limited.” 29 In coming to this conclusion, the Court quoted from the Congressional Record: The proviso to § 4 of the 1882 Act first appeared as an amendment offered on the floor of the House by Representative Hammond, pursuant to the order of the House fixing the assignment of the bill H.R. 4167 as a special order. See 13 Cong. Rec. 3900, 3901. Mr. Hammond succinctly stated the purpose of his amendment as follows: “My amendment, therefore, declares that the jurisdictional limits for and as to a national bank shall be the same as they would be in regard to a State bank actually doing or which might be doing business by its side ; that they shall be one and the same.” 1330 Id. at 526 n.22 (emphasis added). 11 Cong. Rec., at 4049. Mr. Robinson then asked, “As I understand the gentleman’s proposed amendment, it is simply to this effect, that a national bank doing business within a certain State shall be subject for all purposes of jurisdiction to precisely the same regulations to which a State bank, if organized there , would be subject.” Mr. Hammond replied, “That is all.” Ibid. 30 Horton argues that this quote from the Congressional Record evidences Congress’s intent to treat national banks as citizens of the states in which they are “doing business,” so that national banks would have jurisdictional parity within a particular state with the state banks chartered in that state. “Doing business within a certain State,” according to Horton, includes the national bank’s branches and would result in the national bank’s being treated as a citizen of each state where it has a branch. Horton asserts that this approach achieves the parity Congress intended: a state bank organized in Texas, being a Texas citizen, would not be able to invoke diversity jurisdiction in a suit against a Texas citizen; hence, a national bank located or doing business in Texas, but presumably with its principal place of business and organization certificate in another state, should also not be able to invoke diversity jurisdiction against a Texas citizen. Horton’s reading of history is incomplete. At the time of the 1882 Act, indeed until 1927, national banks were not31 Bougas , 98 S.Ct. at 93; Fin. Software Sys. , 84 F.Supp.2d at

601-02.

32 Petri , 12 S.Ct. at 327.

33 Leather Mfrs.’ Nat’l Bank , 7 S.Ct. at 778. 12 permitted to engage in branch banking - intrastate or interstate. 31 Therefore, the statement from the Congressional Record is not evidence that “located,” or “doing business within a certain State,” means something more than principal place of business: all national banks in 1882 were doing business only in the state of their principal place of business. Horton’s position also ignores the Supreme Court’s declarations that “[n]o reason is perceived why it should be held that congress intended that national banks should not resort to federal tribunals as other corporations” might, 32 and that “[a] national bank was by [the statute of 1882] placed before the law [for purposes of federal jurisdiction] the same as” non-national banks. 33 A national bank with its principal place of business and organization certificate in Illinois could hardly be treated the same before the law if a corporation from Illinois with a “branch” in Texas could get into federal court when sued by a citizen of Texas while the national bank, also with a branch in Texas, could not. Finally, Horton’s position would lead to a narrow concept of “parity.” The national bank would enjoy access to diversity jurisdiction only when sued by or suing a citizen of a state in34 First ar , 253 F.3d at 989-93; F in. Software Sys. , 84

F.Supp.2d at 604-07.

35 98 S.Ct. 88 (1977).

36 Iacono , 785 F.Supp. at 32-34 (stating that Bougas ’s mention of section 1348 s uggested that the Supreme Could would construe “located” in section 1348 as is had in Bougas ); Bougas , 98 S.Ct. at 89-94.

37 Driscoll v. New Orleans Steamboat Co. , 633 F.2d 1158, 1159 n.1 (5th Cir. 1981). 13 which the bank maintains no branch at all. Corporations and state banks do not have such a limited access to federal court.

E Firstar and other courts have addressed the arguments upon which the Iacono court relied and expressly rejected Iacono ’s reasoning and conclusion. 34 Horton does not attempt to resurrect any of these rejected Iacono arguments, citing Iacono only once - to argue that Iacono represents the majority view.

Iacono relied heavily on Citizens & Southern National Bank v. Bougas , 35 in which the Supreme Court read “located,” for purposes of a venue provision of the National Banking Act to include the location of the bank’s branches. 36 Bougas , however, does not construe section 1348 and merely points out in a footnote, with no further comment, that section 1348 uses the word “located.” Because “[v]enue is distinct from jurisdiction,” 37 and because Bougas expressly limits its opinion to how the federal statute applied in determining state court38 Firstar , 253 F.3d at 989-91.

39 12 U.S.C. § 21, et seq.

40 28 U.S.C. § 1, et seq .; see also Firstar , 253 F.3d at 990.

4 1 See Atl. Cleaners & Dyers v. United States , 52 S.Ct. 607 , 608-09 (1932) (“Most words have different shades of meaning, and consequently may be variously construed, not only when they occur in different statute s, but when used more than once in the same statute or even in the same section.”).

42 Bougas , 98 S.Ct. at 93.

43 See 12 U.S.C. § 94. 14 venue, using Bougas to interpret “located” in a jurisdictional statute is of questionably validity, if applicable at all. 38

Iacono also failed to recognize that the provision interpreted in Bougas was included in the National Banking Act, 39 and that section 1348 is found in the Judicial Code and Judiciary

Act. 40 This undermines the rationale for using the venue provision construed by Bougas to aid in the interpretation of a jurisdictional statute, particularly when the same word can have different meanings - even within the same act. 41 Bougas itself recognized that “[t]here is no enduring rigidity about the word ‘located,’” thus significantly weakening the interpretative applicability of the same word in a different act and in a different context. 42

Iacono made an erroneous inference from a 1982 amendment to the venue provision. 43 Following Bougas ’s holding that state court venue for a national bank could be in any county in which44 Firstar , 253 F.3d at 992.

45 Iacono , 785 F.Supp. at 33.

46 Firstar , 253 F.3d at 992.

47 Id.

48 Iacono , 785 F.Supp. at 33. 15 the bank had a branch, Congress amended the relevant venue provision to limit venue to the location of the bank’s principal place of business. 44 Congress, however, did not change section 1348 at that time. This congressional inaction, according to

Iacono , meant that Congress implicitly approved of the Bougas Court’s definition of “located” for purposes of section 1348

. 45 However, “no basis exists for inferring that Congress intended for ‘located’ in 28 U.S.C. § 1348 to be interpreted in accord with Bougas .” 46 As Firstar observed, the venue and the jurisdiction statutes for national banks are found in different acts and serve distinct purposes. 47 Further, there had been no cases prior to Iacono in 1992 suggesting that a national bank was a citizen of every state in which it had a branch. We are unwilling to infer from Congress’s inaction with respect to section 1348 any intent to accept the Bougas definition of
“located.”

In Iacono , the district court maintained that because section 1348 used both “established” and “located,” Congress must have intended for the two words to have different meanings. 4849 Id.

50 See Fin. Software Sys. , 84 F.Supp.2d at 604.

51 Id. 16 The court then explained that this supported the holding that “established” meant principal place of business while “located” meant where the bank had branches. 49 While the Iacono interpretation seems reasonable, it does not take into account that when Congress enacted the predecessor of section 1348, “established” and “located” would have been functionally equivalent for jurisdictional purposes because national banks had no branches. 50 As we have explained, national banks were not permitted to have interstate branches at the time of the 1882 and 1887 Acts that serve as the backdrop for section 1348. It is then difficult to conclude that Congress intended for the two words to have the different meanings that the Iacono court suggests. In any case, where it is not clear that the two words were intended to have different meanings, “the words should reflect the congressional goal of jurisdictional parity with state banks and corporations” rather than a meaning that overrides this goal. 51

F Horton makes a number of additional arguments, including the following: (1) Texas law determines that Bank One is a Texas domiciliary, and thus a Texas citizen for diversity purposes; (2)52 In re Liljeberg Enters., Inc. , 304 F.3d 410, 427 n.29 (5th

Cir. 2002).

53 Id. 17 since Firstar , the OCC has issued an interpretation of “located” that supports Horton’s position; (3) certain sections in the National Banking Act use the term “located” to include location of branches; and (4) the Firstar result conflicts with Texas consumer protection laws and is bad policy. The parties dispute which, if any, of these were properly raised before the district court. “[A]rguments not raised in the district court cannot be asserted for the first time on appeal.” 52 However, “an argument is not waived on appeal if the argument on the issue before the district court was sufficient to permit the district court to rule on it.” 53 Regardless of whether Horton sufficiently raised these additional arguments, they are without merit. First, Horton argues that the Firstar analysis ignores state law and its impact on the scope of diversity jurisdiction and does not account for federalism concerns. Horton specifically argues that under Texas law, Bank One is a Texas domiciliary and, therefore, cannot be diverse. As the “determination of one’s State Citizenship for diversity purposes is controlled by federal law, not by the law of any State,” Texas law does not control54 Mas v. Perry , 489 F.2d 1396, 1399 (5th Cir. 1974).

55 See OCC Corporate Decision No. 2001 -29, 2001 WL 1502558 (Sept. 28, 2001).

56 See OCC Interpretati ve Letter No. 952, 2002 WL 32072482 (Oct. 23, 2002).

57 Id. at *3 n.8.

58 Gustafson v. Alloyd Co. , 115 S.Ct. 1061, 1067 ( 1995) (emphasis added) (internal quotation marks and citations omitted). 18 here. 54 Second, Horton claims that since the Firstar opinion, the OCC has changed its position. 55 This argument lacks merit. The Corporate Decision upon which Horton relies was issued prior to an Interpretative Letter 56 that reaffirmed OCC’s agreement with Firstar . Furthermore, the Corporate Decision concerns the location of national banks for purposes of mergers and does not purport to interpret section 1348 - or even refer to it. Third, Horton points to portions of the National Banking Act that arguably deem a national bank to be located wherever it has branches; Horton contends that “located” in section 1348 must have the same meaning. The OCC readily concedes that “[f]or some statutes a national bank may . . . be located in states in which it has branches.” 57 A “normal rule of statutory construction” is that “identical words used in different parts of the same act are intended to have the same meaning.” 58 This principle does not apply here, however, because the statutes cited by Horton are59 Firstar , 253 F.3d at 990.

60 Bianca v. Parke-Davis Pharm. Div. of Warner-Lambert Co. , 723 F.2d 392, 396 & n.4 (5th Cir. 1984).

61 Mas , 489 F.2d at 1399. 19 from the National Banking Act while section 1348 is found in the Judicial Code. 59 This argument also fails. Finally, Horton argues that viewing “located” in a manner that increases the scope of federal diversity jurisdiction makes Texas consumer protection remedies “difficult or remote.” The rule, however, is that “[c]ontrol over the scope of diversity jurisdiction rests with Congress,” and any related policy determinations are for Congress to make. 60 Relatedly, state law does not determine the scope of federal diversity jurisdiction. 61 Horton’s argument is, therefore, unavailing.

IV We construe section 1348 in light of Congress’s intent to maintain jurisdictional parity between national banks on the one hand and state banks and corporations on the other. We hold that the definition of “located” is limited to the national bank’s principal place of business and the state listed in its organization certificate and its articles of association. This results in a national bank’s having access to federal courts by diversity jurisdiction to the same extent as a similarly situated state bank or corporation. It follows that, under section 1348, a national bank is not necessarily “located” in each and every20

state in which it has a branch, and the district court did not err in so holding.

AFFIRMED.