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 statutes
1 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 jurisdiction1 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.” Horton
3 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, remained
7 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 is
11 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 Firstar, 253 F.3d at 988 (citing Cotton 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 Congress 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 a
15 Id. at 986 (citing Petri v. Commercial Nat’l Bank of

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

16 Petri, 12 S.Ct. at 326.

17 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 Leather

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 between
19 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 Id.; 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). See also Am.

Sur. Co. v. Bank of Ca., 133 F.2d 160, 161-62 (9th Cir. 1943)

(holding national 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 state 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 amicus brief in

Firstar, as it has in this case. Id. at 984. Following Firstar,

the OCC issued an interpretive letter reaffirming its support of

“the interpretation of the statute and fundamental 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 national bank is a

citizen of the state in which its principal 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 district 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.” Evergreen, 262

F.Supp.2d at 1307.

While the OCC’s position and Evergreen do 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 necessary 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 court
28 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.” 13
30 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 not
31 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 in
34 Firstar, 253 F.3d at 989-93; Fin. 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 suggested 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 court
38 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.

41 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 statutes, 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 which
44 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.48
49 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 control
54 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 Interpretative 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 Letter56 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 are
59 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 every
20

state in which it has a branch, and the district court did not

err in so holding.

AFFIRMED.