Alena Kriley v. Northwestern Memorial Healthcare

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 19, 2023 *
Decided January 24, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1606
ALENA KRILEY, et al.,
Plaintiffs-Appellants,
v.
NORTHWESTERN MEMORIAL
HEALTHCARE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:20-cv-05495
Thomas M. Durkin,
Judge.
O R D E R
Alena Kriley appeals the district court’s dismissal of her case for lack of subject-
matter jurisdiction. The court correctly ruled that it lacks diversity jurisdiction, federal-
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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question jurisdiction, and jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350. We
thus affirm.
This suit arises from medical care in 2018 that Kriley sought from Northwestern
Memorial Hospital to remove a blood clot. Her doctors completed a stenting procedure
that involved the surgical insertion of a small mesh tube to keep an artery open. Kriley
says she verbally withheld consent from that procedure. Two years later, Kriley and
two co-plaintiffs, Frantz and Uladzislava Horbach, sued medical professionals involved
in that care. Based in part on Kriley’s assertion of her lack of consent, they raised state-
law claims of negligence, medical battery, fraud, and “loss of chance.”
Because Kriley and all but one of the defendants live in Illinois, the district court
asked the parties to address whether it had diversity jurisdiction over the case, and it
concluded that it did not. Kriley, who is from Belarus, argued that diversity of
citizenship is present based on 28 U.S.C. § 1332(a)(2). Under that statute, diversity of
citizenship occurs when a suit is between “citizens of a State and citizens or subjects of a
foreign state, except . . . [in] 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.” Kriley contended that the “except” phrase
does not apply because she does not intend to remain in Illinois and is therefore not
“domiciled” there. She also asserted that she was merely a “conditional permanent
resident” and therefore not “lawfully admitted for permanent residence.” The district
court ruled that diversity jurisdiction was missing. Kriley’s declared future intent to
leave Illinois was, the court explained, undermined by several other facts. She resided
in Illinois at the time she filed suit, she used her Illinois address and phone number in
her legal briefs, she had an Illinois driver’s license and bank account, and she conceded
that any plan to leave Illinois depended on a pending custody decision. (The district
court did not reach her contention about “conditional permanent residence.”)
With diversity jurisdiction lacking, Kriley invoked jurisdiction under the Alien
Tort Statute, 28 U.S.C. § 1350, and the federal-question statute, id. § 1331, because she
alleged violations of national treaties and federal regulations. She cited the International
Covenant on Civil and Political Rights, the Nuremberg Code, the Declaration of
Helsinki, the International Bill of Human Rights, and the Belmont Report, as well as
requirements for informed consent in the Code of Federal Regulations. The court was
unpersuaded and dismissed the case for lack of subject-matter jurisdiction.
On appeal, Kriley argues that she established federal jurisdiction. We review
dismissal for lack of federal jurisdiction de novo and a court’s findings on jurisdictional
facts for clear error. Ill. Ins. Guar. Fund v. Becerra, 33 F.4th 916, 922 (7th Cir. 2022).

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No. 22-1606 Page 3
Kriley contends that she established diversity jurisdiction, but her reasons are
unavailing. First, she argues her status as “conditional permanent resident” means that
diversity jurisdiction is present. But a conditional permanent resident is “lawfully
admitted for permanent residence,” just “on a conditional basis.” 8 U.S.C. § 1186a(a)(1);
see also Gallimore v. Att’y Gen. of U.S., 619 F.3d 216, 227–28 (3d Cir. 2010); 8 C.F.R. § 216.1
(“A conditional permanent resident is an alien who has been lawfully admitted for
permanent residence,” and “the rights, privileges, responsibilities and duties which
apply to all other lawful permanent residents apply equally” to conditional residents).
Because 28 U.S.C. § 1332(a)(2) removes diversity jurisdiction in suits between foreigners
like Kriley who are “lawfully admitted for permanent residence” and “domiciled in the
same State” as any defendant, diversity jurisdiction is absent if she is so domiciled.
Despite Kriley’s assertion to the contrary, the district court did not clearly err in
finding that Kriley is domiciled in the same state as most of the defendants—Illinois. It
reasonably found that Kriley’s physical presence in Illinois (reflected by her use of her
Illinois address in court filings, driver’s license, and bank account) refuted her assertion
that she planned to leave the state depending on the outcome of a custody case. Sadat v.
Mertes, 615 F.2d 1176, 1181 (7th Cir. 1980). Moreover, Kriley did not establish a new
domicile. “[I]t takes physical presence in a state, with intent to remain there, to establish
domicile,” Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir. 1996), and once established, a
domicile “continues until it is superseded by a new domicil[e].” Mertes, 615 F.2d at 1181.
Kriley did not identify facts showing that she had left Illinois and had established
residence elsewhere.
Without diversity jurisdiction to support her case, Kriley repeats her argument
that the district court had jurisdiction under the Alien Tort Statute. But her citation to
that statute is not enough; she must also invoke a non-frivolous private right of action
that the statute covers. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998);
Hagans v. Lavine, 415 U.S. 528, 536–37 (1974); Roppo v. Travelers Com. Ins. Co., 869 F.3d
568, 587 (7th Cir. 2017). She cannot. As the Supreme Court explained in Nestlé USA, Inc.
v. Doe, 141 S. Ct. 1931, 1939–40 (2021), under the Alien Tort Statute, federal courts
cannot “recognize private rights of action for violations of international law beyond”
three historical torts—violation of international safe conduct, infringement of
ambassadors’ rights, and piracy. Kriley does not invoke these torts; instead, she believes
that the defendants violated the International Covenant on Civil and Political Rights,
the International Bill of Human Rights, and other norms unrelated to these historical
torts. But the Covenant and Bill do not create rights enforceable in federal courts.
See Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 734 (2004). And the Declaration of
Helsinki, Nuremberg Code, and Belmont Report are not treaties but statements of

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No. 22-1606 Page 4
principles. Moreover, Kriley does not support her assertion that they create private
rights of action. See, e.g., Ernst v. City of Chicago, 837 F.3d 788, 800 n.6 (7th Cir. 2016).
That leaves federal-question jurisdiction, but this is also absent. Kriley argues
that her case raises a federal question because she accuses the defendants of violating
federal regulations on informed consent in human research. See 21 C.F.R. § 50.27; 16
C.F.R. § 1028.116. But again, her assertion of a federal question is frivolous. Nothing
suggests that Kriley has even an arguable right to sue the defendants under these
regulations. “Language in a regulation may invoke a private right of action that
Congress through statutory text created, but it may not create a right that Congress has
not.” Alexander v. Sandoval, 532 U.S. 275, 291 (2001). And Kriley does not cite any
statutory text or case law suggesting that she can sue under these regulations. See Blue
Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 733 (1975) (upholding a private right of
action under a federal regulation only because of the “longstanding acceptance by the
courts” of the right and Congress’s inaction to correct them).
Finally, Kriley contends in her reply brief that the defendants violated the Health
Insurance Portability and Accountability Act, Pub. L. No. 104–191, 110 Stat. 1936 (1996).
To the extent that she argues that a violation of this Act creates federal-question
jurisdiction, she waived this argument by omitting it from her opening brief. Wonsey v.
City of Chicago, 940 F.3d 394, 398 (7th Cir. 2019).
AFFIRMED

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