LA Environmental Action Ntwrk v. City of Baton Rou

Case: 11-30549 Document: 00511824872 Page: 1 Date Filed: 04/17/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 17, 2012

No. 11-30549 Lyle W. Cayce

Clerk

LOUISIANA ENVIRONMENTAL ACTION NETWORK,

Plaintiff–Appellant

v.

CITY OF BATON ROUGE; PARISH OF EAST BATON ROUGE,

Defendants–Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:

Plaintiff–Appellant Louisiana Environmental Action Network filed this

citizen suit against Defendants–Appellees the City of Baton Rouge and the

Parish of East Baton Rouge, alleging violations of the Clean Water Act. The

Defendants filed a Rule 12(b)(6) motion to dismiss, asserting that the citizen suit

was barred under the “diligent prosecution” provision of the Act. 33 U.S.C.

§ 1365(b)(1)(B). The district court granted the motion to dismiss, but on the

ground that the 2002 consent decree mooted Plaintiff’s claims. On appeal,

Plaintiff contends that the district court erred in granting the Defendants’

motion to dismiss. For the following reasons, we REVERSE the district court’s

judgment and REMAND for further proceedings consistent with this opinion.

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No. 11-30549

I. BACKGROUND

A. Overview of the Clean Water Act

The Clean Water Act (“CWA” or “Act”), 33 U.S.C. § 1251 et seq., was

enacted “to restore and maintain the chemical, physical, and biological integrity

of the Nation’s waters.” 33 U.S.C. § 1251(a). The Act prohibits “the discharge

of any pollutant” into navigable waters except as authorized by specified sections

of the Act. 33 U.S.C. § 1311(a). One of these specified sections establishes the

National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C. § 1342.

Pursuant to this section, the Administrator of the Environmental Protection

Agency (“EPA”) or an authorized State can issue NPDES permits, which allow

the discharge of pollutants according to certain conditions. Id. “NPDES permits

impose limitations on the discharge of pollutants, and establish related

monitoring and reporting requirements, in order to improve the cleanliness and

safety of the Nation’s waters. Noncompliance with a permit constitutes a

violation of the Act.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 174 (2000) (citation omitted).

The holder of a state NPDES permit is subject to both federal and state

enforcement action for failure to comply with the limitations imposed in the

permit. 33 U.S.C. §§ 1319, 1342. Furthermore, the Act contains a citizen suit

provision, which authorizes any citizen to file a civil action to enforce an effluent

standard in an NPDES permit, subject to certain limitations. 33 U.S.C.

§ 1365(a), (b).1 Subsection (a) of the citizen suit provision, entitled

“Authorization; jurisdiction,” provides that, “[e]xcept as provided in

subsection (b) of this section . . . , any citizen may commence a civil action on his

own behalf . . . against any person . . . who is alleged to be in violation of . . . an

effluent standard or limitation under this chapter.” § 1365(a)(1).

1

The Act defines “citizen” as “a person or persons having an interest which is or may

be adversely affected.” 33 U.S.C. § 1365(g).

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However, pursuant to subsection (b) of the CWA’s citizen suit provision,

entitled “Notice,” citizen suits are subject to two limitations. § 1365(b). First,

sixty days before commencing a citizen suit, the citizen must give notice of the

alleged violation to the EPA, the alleged violator, and the State in which the

alleged violation occurs. § 1365(b)(1)(A). The Supreme Court has stated that

“the purpose of notice to the alleged violator is to give it an opportunity to bring

itself into complete compliance with the Act and thus . . . render unnecessary a

citizen suit.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484

U.S. 49, 60 (1987). Furthermore, “[t]he requirement that notice be given to the

responsible officials highlights their primary role in enforcing the Act compared

to the supplementary position of the citizen.” Hamker v. Diamond Shamrock

Chem. Co., 756 F.2d 392, 396 (5th Cir. 1985).

Second, the Act bars a citizen suit if the EPA or State “has commenced and

is diligently prosecuting a civil or criminal action in a court of the United States,

or a State to require compliance with the standard, limitation, or order.” 33

U.S.C. § 1365(b)(1)(B). “The bar on citizen suits when governmental

enforcement action is under way suggests that the citizen suit is meant to

supplement rather than to supplant governmental action.” Gwaltney, 484 U.S.

at 60 (emphasis added). The Supreme Court noted that the “legislative history

of the Act reinforces this view of the role of the citizen suit.” Id. The Senate

Report stated that the “Committee intends the great volume of enforcement

actions [to] be brought by the State,” and that citizens are allowed to bring suit

only “if the Federal, State, and local agencies fail to exercise their enforcement

responsibility.” Id. (alteration in original) (quoting S. REP. No. 92-414, p. 64

(1971)). Thus, the citizens’ role in enforcing the Act is “interstitial” and should

not be “intrusive.” Id. at 61; see also Envtl. Conservation Org. v. City of Dallas,

529 F.3d 519, 526 (5th Cir. 2008) (“The citizen-suit provision is a critical

component of the CWA’s enforcement scheme, as it ‘permit[s] citizens to abate

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pollution when the government cannot or will not command compliance.’”)

(alteration in original) (quoting Gwaltney, 484 U.S. at 62).

B. Statement of Facts and Proceedings

The City of Baton Rouge (the “City”) and the Parish of East Baton Rouge

(the “Parish”) own and operate three wastewater treatment facilities: the North,

Central, and South Wastewater Treatment Plants. These facilities discharge

treated sanitary wastewater into the Mississippi River. Pursuant to the Act, the

Louisiana Department of Environmental Quality (“LDEQ”) administers a permit

program, called the Louisiana Pollutant Discharge Elimination System

(“LPDES”). 33 U.S.C. § 1342(b). The LDEQ issued three NPDES permits to the

City and Parish for the discharges from the three plants. A standard condition

in the permits, commonly known as the Eighty-Five Percent Rule, requires that

the permit holder reduce the amount of Biochemical Oxygen Demand (“BOD”)

and Total Suspended Solids (“TSS”) such that the thirty-day average amount

of BOD and TSS in the wastewater discharged from the plant is at least eighty-

five percent less than the amount of BOD and TSS in the sewage entering the

plant. See 40 C.F.R. § 133.102.

In March 1988, the United States filed a complaint against the City and

the State of Louisiana alleging violations of the CWA at the North, Central, and

South Wastewater Treatment Plants. United States v. City of Baton Rouge, et

al., No. 3:88-cv-00191 (M.D. La.). In December 1988, the district court entered

a consent decree to resolve those claims and to require full compliance with the

CWA by December 31, 1996. In 1997, the district court approved a modification

to the consent decree that provided additional time for the City to complete

construction at the North Plant and increased stipulated penalties for violations

of effluent limitations at that facility.

On November 13, 2001, the United States and the State of Louisiana filed

an enforcement action against the City and Parish, alleging that the same three

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wastewater facilities violated their NPDES permits and the Act. United States

v. City of Baton Rouge, et al., No. 3:01-cv-00978 (M.D. La.). The same day, the

United States and the State of Louisiana lodged a proposed consent decree in the

district court. In January 2002, the United States published notice of the

proposed consent decree and solicited public comments in the Federal Register.

See 67 Fed. Reg. 2669 (2002). After receiving no comments, the United States

and the State of Louisiana filed a motion to enter the consent decree.

On March 15, 2002, the district court entered the consent decree (the

“2002 consent decree”), which superseded and terminated the 1988 consent

decree. One of the objectives of the 2002 consent decree is for the City and

Parish to “achieve and maintain compliance with [their] NPDES permits and the

CWA.” 2002 consent decree ¶ 11(A). In order to achieve this objective, the 2002

consent decree requires that the City and Parish implement extensive, physical

remedial measures according to “applicable schedules.” Id. ¶ 11(B).

Additionally, the 2002 consent decree provides for “stipulated penalties” for

certain violations of the 2002 consent decree and of the NPDES permits.

Id. ¶¶ 66-83. With regard to effluent discharges, the 2002 consent decree

provides for less stringent effluent limitations—a seventy-five percent reduction

of BOD and TSS—until the City and Parish reach full completion of the remedial

program. Id. ¶ 39. The 2002 consent decree states that the City and Parish

shall not be subject to penalties for failure to comply with the eighty-five percent

reduction set out in the NPDES permits, provided that the plants comply with

the seventy-five percent reduction set out in the 2002 consent decree. Id.

In 2006, as required by the 2002 consent decree, the City and Parish

submitted a Second Remedial Measures Action Plan (the “Second RMAP”),

wherein the City and Parish proposed to complete all construction and achieve

fully operational status of its wastewater facilities by January 1, 2015. In 2007,

the EPA and the LDEQ approved the Second RMAP. In November 2008, the

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United States and the State of Louisiana lodged a proposed modification to the

2002 consent decree, which would allow for various changes to the Second RMAP

but would not alter the January 2015 compliance deadline. The United States

published a notice of the proposed modification in the Federal Register and

solicited public comments. See 73 Fed. Reg. 67882 (2008). In April 2009, the

district court approved the modification of the 2002 consent decree.

The Louisiana Environmental Action Network (“LEAN”) is a non-profit

community organization incorporated and operating under the laws of

Louisiana. LEAN describes itself as “an umbrella organization for several

environmental and citizen groups in Louisiana . . . . LEAN has more than 1,700

individual members, some of whom reside, own property, work, and recreate in

areas near and downstream of [the City and Parish’s] plants . . . . LEAN’s

purpose is to preserve and protect Louisiana’s land, air, water, and other natural

resources.” LEAN’s members “complain[ed] that untreated wastewater and raw

sewerage are being discharged onto their properties,” and LEAN became

concerned about “sanitary sewer overflows occurring in association with the

[three] plants.” Also, LEAN analyzed the City and Parish’s Discharge

Monitoring Reports, which indicated that there are ongoing violations at the

three plants of the Eighty-Five Percent Rule and of the 2002 consent decree’s

seventy-five percent reduction requirement.

On November 24, 2009, LEAN sent a Notice of Violation to the City and

Parish, the EPA, and the LDEQ pursuant to the Act. 33 U.S.C. § 1365(b)(1)(A).

LEAN sent a revised notice to the same entities on December 21, 2009. In the

revised notice, LEAN alleged that the North, Central, and South Wastewater

Treatment Plants are in violation of the CWA for failing to meet the effluent

standards set out in the NPDES permits. Additionally, LEAN alleged that “the

plants have failed to even meet the relaxed effluent limitations set forth in the

[2002] consent decree.”

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After providing sixty-days’ notice, LEAN filed this citizen suit against the

City and Parish (collectively, the “Defendants”) in the United States District

Court for the Middle District of Louisiana on March 22, 2010. In its amended

complaint, LEAN alleged that it had met its notice obligations, stating that

“[n]either EPA nor LDEQ has commenced or is diligently prosecuting a civil or

criminal action in court to redress the violations specified in the Notice and

Revised Notice.” LEAN asserted two causes of action against the Defendants.

First, LEAN alleged that the three wastewater treatment plants violate both the

eight-five percent reduction requirement in the three NPDES permits and the

seventy-five percent reduction requirement in the 2002 consent decree. Second,

LEAN alleged that the Defendants are in violation of their permits by failing to

“properly operate and maintain all facilities and systems of treatment and

control . . . which are installed or used by the permittee to achieve compliance.”

LEAN sought a declaration that the Defendants are in violation of the CWA and

the three permits; an injunction compelling the Defendants’ compliance with the

permits; an award of civil penalties payable to the U.S. Treasury; attorney’s fees

and litigation expenses; and any other relief the court deems appropriate.

On June 3, 2010, the Defendants filed a motion to dismiss LEAN’s suit

pursuant to Federal Rule of Civil Procedure 12(b)(6). The Defendants argued

that LEAN’s citizen suit was barred under the “diligent prosecution” provision

of the CWA. 33 U.S.C. § 1365(b)(1)(B). The Defendants stated that they are still

subject to the 2002 consent decree, which allows the Defendants to come into

compliance with the CWA by January 1, 2015. The Defendants contended that

both of LEAN’s claims “pertain to violations that require compliance with the

same standards” that are the subject of the 2002 consent decree. The

Defendants argued that, given the EPA’s ongoing enforcement of the 2002

consent decree, LEAN’s citizen suit is precluded by the Act and should be

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dismissed. The Defendants asserted that “allowing LEAN to maintain this

citizen suit undermines the [CWA’s] enforcement scheme.”

In its opposition to the Defendants’ motion to dismiss, LEAN responded

that the “mere existence of an 8-yr old consent decree—in an administratively

closed case—does not establish diligent prosecution.” LEAN argued that the

Defendants cannot immunize themselves from liability for violations of the CWA

by relying on the 2002 consent decree. After the Defendants filed a reply to

LEAN’s opposition and LEAN filed a sur-reply, the district court held oral

argument on the Defendants’ motion to dismiss on March 16, 2011.

The district court granted the Defendants’ Rule 12(b)(6) motion to dismiss.

In its order (the “Order”), the court first discussed the Defendants’ argument

that the “diligent prosecution” provision of the Act bars LEAN’s citizen suit. 33

U.S.C. § 1365(b)(1)(B). The court discussed Supreme Court and circuit court

caselaw regarding the citizen suit provision of the CWA and the “diligent

prosecution” bar. The court stated that “[t]he Act strips courts of subject matter

jurisdiction over citizen suits once the EPA has timely commenced judicial or

administrative enforcement actions.” However, the court did not rule on

whether LEAN’s suit is barred under § 1365(b)(1)(B).

Instead, the district court analyzed whether LEAN’s claims were rendered

moot by the 2002 consent decree. The court relied on our decision in

Environmental Conservation Organization v. City of Dallas, 529 F.3d 519 (5th

Cir. 2008), explaining that we held that “a consent decree properly entered into

by the EPA and the City of Dallas to address alleged violations of the Clean

Water Act mooted a pre-existing citizen suit filed subsequently for the same

purposes.” The court recognized that the City of Dallas case was “not exactly

analogous”—as the City of Dallas citizen suit was filed prior to the entry of the

consent decree whereas, in the present case, LEAN’s citizen suit was filed after

the entry of the 2002 consent decree. Despite this difference, the court applied

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the mootness standard enunciated in City of Dallas, which is that “the party

denying mootness must show that there is a realistic prospect that the alleged

violations will continue despite the [existence of the consent decree.]”

The court noted that the Defendants stated in their pleadings and at oral

argument that “they are in full compliance with the 2002 consent decree, and are

on schedule to complete massive updates and improvements to the three

wastewater treatment plants by January, 2015 (in accordance with the 2002

consent decree).” The court held that the Defendants’ compliance with the 2002

consent decree addresses LEAN’s grievances, thereby rendering LEAN’s claims

moot. The court stated that “[p]rior to the January 2015 compliance deadline set

by the 2002 consent decree, no remedy is available to [LEAN] absent a finding

of non-compliance by the Court having proper jurisdiction to enforce the decree.”

The court explained that if LEAN “is correct in its assertion that Defendants are

not complying with the 2002 consent decree, the Court encourages [LEAN] to

take up the matter . . . with the EPA, as the EPA has the power to enforce the

consent decree.” LEAN timely appealed the district court’s judgment.

II. DISCUSSION

A. The District Court Erred in Dismissing LEAN’s Action as Moot

Although the district court granted the Defendants’ Rule 12(b)(6) motion

to dismiss for failure to state a claim, the court reasoned that LEAN’s action

must be dismissed based on mootness. In the Order, the court explained that

LEAN’s claims were rendered moot by the Defendants’ ongoing compliance with

the 2002 consent decree. Thus, the district court’s dismissal of LEAN’s action

was based on a lack of federal jurisdiction. See City of Dallas, 529 F.3d at 524

(stating that a mootness argument raises a question of federal jurisdiction). We

have stated that “we are not bound by the label the district court puts on its

action where underlying facts indicate that a different action was in fact

intended.” Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981) (citation

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omitted). Therefore, based on the district court’s reasoning, we construe its

dismissal of LEAN’s suit as a dismissal for lack of jurisdiction, not for failure to

state a claim. See id.

“We review questions of federal jurisdiction de novo, including arguments

that a case or controversy has become moot.” City of Dallas, 529 F.3d at 524

(citation omitted). “Mootness is the doctrine of standing in a time frame. The

requisite personal interest that must exist at the commencement of litigation

(standing) must continue throughout its existence (mootness).” Id. at 524-25

(citations and internal quotation marks omitted). “If a case has been rendered

moot, a federal court has no constitutional authority to resolve the issues that

it presents.” Id. at 525 (citation omitted).

In City of Dallas, we held that, where the entry of a consent decree

occurred after the filing of a CWA citizen suit, the citizen suit is rendered moot

unless the citizen-suit plaintiff “proves that there is a realistic prospect that the

violations alleged in its complaint will continue notwithstanding the consent

decree.” Id. at 528 (citations omitted). In the present case, the district court

applied the City of Dallas mootness standard to LEAN’s action, despite the fact

that LEAN’s citizen suit was filed years after the entry of the 2002 consent

decree. In applying the standard, the court found that LEAN could not meet the

“reasonable prospect” test because the Defendants had asserted that they are in

compliance with the conditions of the 2002 consent decree. Thus, the district

court held that the 2002 consent decree rendered LEAN’s citizen suit moot.

We hold that the district court erred in applying the City of Dallas

mootness standard to the present case.2 In City of Dallas, we “recognized that

2

Environment America (“EA”), “a federation of [twenty-nine] non-profit, non-partisan,

state-based environmental advocacy organizations with a longstanding interest in the vigorous

and effective enforcement of the Clean Water Act,” filed an amicus curiae brief in support of

LEAN. EA asserts that the district court should not have conducted a mootness analysis,

because the 2002 consent decree was entered prior to the filing of LEAN’s suit.

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developments subsequent to the filing of a citizen suit may moot the citizen’s

case.” 529 F.3d at 526 (emphasis added) (citation omitted). We stated that, “[a]s

a general rule, any set of circumstances that eliminates actual controversy after

the commencement of a lawsuit renders that action moot.” Id. at 527 (emphasis

added) (citation and internal quotation marks omitted). In City of Dallas, the

plaintiff filed its citizen suit prior to the entry of a consent decree between the

defendant and the United States and the State of Texas. Thus, it was proper for

the court to examine whether the subsequent development of the consent decree

mooted the plaintiff’s properly-filed citizen suit.

In the instant case, however, LEAN filed its citizen suit approximately

eight years after the entry of the 2002 consent decree between the Defendants

and the United States and the State of Louisiana. Neither party argues that any

circumstances subsequent to the filing of LEAN’s lawsuit have rendered LEAN’s

citizen suit moot. Thus, the district court erred in examining whether the 2002

consent decree, and the ongoing enforcement of its conditions, mooted LEAN’s

citizen suit. See 13B WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE

§ 3533 (3d ed.) (“Mootness doctrine encompasses the circumstances that destroy

the justiciability of a suit previously suitable for determination.”) (emphasis

added). Therefore, the district court improperly dismissed LEAN’s citizen suit

based on mootness.

B. The “Diligent Prosecution” Bar

Having determined that the dismissal of LEAN’s action was not warranted

on mootness grounds, we now turn to the alternate ground not resolved by the

district court—whether LEAN’s citizen suit is precluded under the CWA’s

“diligent prosecution” provision. 33 U.S.C. § 1365(b)(1)(B).

On appeal, the Defendants assert that “[t]he diligent prosecution bar to

this citizen suit is the controlling and deciding issue” and that we “may affirm

the district court ruling on that issue alone.” The Defendants contend that the

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“diligent prosecution” bar is jurisdictional and therefore strips the district court

of subject matter jurisdiction to hear the case. LEAN, however, contends that

the “diligent prosecution” bar is not jurisdictional. Therefore, LEAN asserts that

the bar does not preclude its citizen suit, because the district court was obligated

to give it “an opportunity to prove its well-pled allegations that there is no

diligent prosecution.”

We must decide an issue of first impression in this circuit—whether the

CWA’s “diligent prosecution” bar is jurisdictional. This issue has important

practical implications for the court and parties in this case. If the provision is

not jurisdictional, then LEAN is protected by the safeguards of Federal Rule of

Civil Procedure 12(b)(6)—the district court is required to accept all well-pleaded

facts in LEAN’s complaint as true and view the facts in the light most favorable

to LEAN. See Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d

383, 387 (5th Cir. 2010) (“The ultimate question in a Rule 12(b)(6) motion is

whether the complaint states a valid claim when all well-pleaded facts are

assumed true and are viewed in the light most favorable to the plaintiff.”)

(citation omitted). However, if the provision is jurisdictional, and thus goes to

the district court’s subject matter jurisdiction, then the district court is not

obligated to accept the assertions in LEAN’s complaint as true. Instead, the

district court is empowered “to make factual findings which are decisive of

jurisdiction,” because “[j]urisdictional issues are for the court . . . to decide.”

Williamson, 645 F.2d at 413 (citations omitted). With this understanding of the

important practical consequences in mind, we turn to recent Supreme Court

cases that provide guidance on determining whether a provision is jurisdictional.

The Supreme Court “has endeavored in recent years to ‘bring some

discipline’ to the use of the term ‘jurisdictional.’” Gonzalez v. Thaler, 132 S. Ct.

641, 648 (2012) (citation omitted); see, e.g., Henderson v. Shinseki, 131 S. Ct.

1197 (2011); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010); Union Pac.

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R.R. v. Bhd. Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, 130 S.

Ct. 584 (2009); Arbaugh v. Y & H Corp., 546 U.S. 500 (2006); Kontrick v. Ryan,

540 U.S. 443 (2004). The Court has stated that “a rule should not be referred to

as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its

subject-matter or personal jurisdiction. Other rules, even if important and

mandatory . . . should not be given the jurisdictional brand.” Henderson, 131 S.

Ct. at 1202-03 (citations omitted). “Among the types of rules that should not be

described as jurisdictional are . . . ‘claim-processing rules,’” which are “rules that

seek to promote the orderly progress of litigation by requiring that the parties

take certain procedural steps at certain specified times.” Id. at 1203 (citations

omitted); see also Kontrick, 540 U.S. at 455 (“Clarity would be facilitated if courts

and litigants used the label ‘jurisdictional’ not for claim-processing rules, but

only for prescriptions delineating the classes of cases (subject-matter

jurisdiction) and the persons (personal jurisdiction) falling within a court’s

adjudicatory authority.”).

The Court has acknowledged that “the distinction between jurisdictional

conditions and claim-processing rules can be confusing in practice.” Reed

Elsevier, Inc., 130 S. Ct. at 1234. Many courts have “mischaracterized claim-

processing rules or elements of a cause of action as jurisdictional limitations,

particularly when that characterization was not central to the case, and thus did

not require close analysis.” Id. at 1234-44 (citations omitted). The Court’s cases

“evince a marked desire to curtail such ‘drive-by jurisdictional rulings,’ which too

easily can miss the ‘critical difference[s]’ between true jurisdictional conditions

and nonjurisdictional limitations on causes of action.” Id. at 1244 (alteration in

original) (citations omitted). Such “‘drive-by jurisdictional rulings’ . . . should be

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accorded ‘no precedential effect’ on the question whether the federal court had

authority to adjudicate the claim.” Arbaugh, 546 U.S. at 511 (citation omitted).3

The Supreme Court has emphasized that courts should not attach the

“jurisdictional” label lightly, because of the important practical—and sometimes

“drastic”—consequences that may flow from the label. See Henderson, 131 S. Ct.

at 1202 (“Th[e] question [of whether a provision is “jurisdictional”] is not merely

semantic but one of considerable practical importance for judges and litigants.”);

see also Gonzalez, 132 S. Ct. at 648 (“Courts . . . should not lightly attach those

‘drastic’ consequences to limits Congress has enacted.”). The Court has

explained that “[b]randing a rule as going to a court’s subject-matter jurisdiction

alters the normal operation of our adversarial system.” Henderson, 131 S. Ct.

at 1202. For instance, “[w]hen a requirement goes to subject-matter jurisdiction,

courts are obligated to consider sua sponte issues that the parties have

disclaimed or have not presented.” Gonzalez, 132 S. Ct. at 648 (citation

omitted). Additionally, “[o]bjections to subject-matter jurisdiction . . . may be

raised at any time,” such as after trial, which can result in the waste of “many

months of work on the part of attorneys and the court.” Henderson, 131 S. Ct.

at 1202. Furthermore, “if subject-matter jurisdiction turns on contested facts,

3

With regard to the CWA’s “diligent prosecution” provision, several courts have stated

in passing that the provision is jurisdictional. See, e.g., Chesapeake Bay Found. v. Am.

Recovery Co., 769 F.2d 207, 208 (4th Cir. 1985) (noting that the “diligent prosecution” bar is

“an exception to the jurisdiction granted in subsection (a) of § 1365”); Friends of Milwaukee’s

Rivers v. Milwaukee Metro. Sewerage Dist., 556 F.3d 603, 606 (7th Cir. 2009) (stating that the

CWA “strips the courts of subject matter jurisdiction over citizens’ suits where the State [or

EPA] has timely commenced judicial or administrative enforcement actions” under

§ 1365(b)(1)(B)). These statements are aptly classified as “drive-by jurisdictional rulings”

because the courts did not attempt to distinguish “between true jurisdictional conditions and

nonjurisdictional limitations on causes of action.” Reed Elsevier, Inc., 130 S. Ct. at 1244

(citations and internal quotation marks omitted). Therefore, these statements are afforded

“no precedential effect” on whether the “diligent prosecution” bar is jurisdictional. Arbaugh,

546 U.S. at 511 (citation and internal quotation marks omitted).

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the trial judge may be authorized to review the evidence and resolve the dispute

on her own.” Arbaugh, 546 U.S. at 514 (citations omitted).

Given the important differences between jurisdictional provisions and

claim-processing rules, the Supreme Court has provided guidance to the lower

courts on the proper analysis to use to determine if a statutory provision is

jurisdictional. In Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), the Court

enunciated the following “readily administrable bright line” rule: A provision is

jurisdictional “[i]f the Legislature clearly states that a threshold limitation on a

statute’s scope shall count as jurisdictional.” Id. at 515-16 (emphasis added).

However, “when Congress does not rank a statutory limitation on coverage as

jurisdictional, courts should treat the restriction as nonjurisdictional in

character.” Id. at 516. Additionally, in Reed Elsevier, Inc. v. Muchnick, 130 S.

Ct. 1237 (2010), the Court elaborated that “context, including [the Supreme]

Court’s interpretation of similar provisions in many years past, is relevant to

whether a statute ranks a requirement as jurisdictional.” Id. at 1248. The

Court stated that “the jurisdictional analysis must focus on the ‘legal character’

of the requirement, which [is] discerned by looking to the condition’s text,

context, and relevant historical treatment.” Id. at 1246 (citations omitted).

Ultimately, the question is whether Congress mandated that the particular

provision be “jurisdictional.” See Henderson, 131 S. Ct. at 1203. The Court’s

clear statement approach “is suited to capture Congress’ likely intent and also

provides helpful guidance for courts and litigants.” Id. (citation omitted).

Applying these principles to the present case, we conclude that Congress

has not clearly mandated that the CWA’s “diligent prosecution” provision is

jurisdictional. We first analyze the text of this particular provision to determine

whether the provision “was meant to carry jurisdictional consequences.”

Henderson, 131 S. Ct. at 1204. Section 1365(b)(1)(B) provides:

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(b) Notice

No action may be commenced–

(1) under subsection (a)(1) of this section–

(B) if the Administrator or State has commenced and is

diligently prosecuting a civil or criminal action in a

court of the United States, or a State to require

compliance with the standard, limitation, or order, but

in any such action in a court of the United States any

citizen may intervene as a matter of right.

The language of § 1365(b)(1)(B) does not “clearly state[]” that the “diligent

prosecution” bar is jurisdictional. Arbaugh, 546 U.S. at 515. This provision

“does not speak in jurisdictional terms or refer in any way to the jurisdiction of

the district courts.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982).

Although it is true that § 1365(b)(1)(B) is phrased in mandatory language, the

Supreme Court has “rejected the notion that ‘all mandatory prescriptions,

however emphatic, are . . . properly typed jurisdictional.’” Henderson, 131 S. Ct.

at 1205 (alteration in original) (citation omitted). Thus, the language of

§ 1365(b)(1)(B) does not provide a clear indication that Congress intended the

provision to be jurisdictional.

The placement of the “diligent prosecution” provision within the CWA also

does not indicate that Congress “wanted [the] provision to be treated as having

jurisdictional attributes.” Id. at 1205. Congress placed § 1365(b)(1)(B) in the

“Notice” section of the CWA citizen suit provision. See id. (“[T]he title of a

statute or section can aid in resolving an ambiguity in the legislation’s text.”)

(alteration in original) (citation and internal quotation marks omitted). The

“Notice” section also includes the requirement that a citizen provide notice of the

alleged violation to the alleged violator, the State, and the EPA sixty-days prior

to filing a citizen suit. See 33 U.S.C. § 1365(b)(1)(A). The sixty-day notice

provision is a typical “claim-processing rule.” See Henderson, 131 S. Ct. at 1203;

Zipes, 455 U.S. at 398 (holding that Title VII’s requirement that claimants

timely file a discrimination charge with the EEOC before filing an action in

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federal court is nonjurisdictional). The placement of the “diligent prosecution”

bar in the “Notice” section, alongside a typical claim-processing rule, suggests

that Congress intended the “diligent prosecution” bar to be a claim-processing

rule. See Henderson, 131 S. Ct. at 1205 (finding that the placement of a

provision in a subchapter entitled “Procedure” indicated that “Congress regarded

the 120-day limit as a claim-processing rule”).

Furthermore, the “diligent prosecution” provision is “located in a provision

‘separate’ from those granting federal courts subject-matter jurisdiction

over . . . [the] claims.” Reed Elsevier, Inc., 130 S. Ct. at 1245-46 (citation

omitted). The district courts have subject matter jurisdiction over CWA citizen

suits pursuant to the general federal question jurisdiction statute, 28 U.S.C.

§ 1331,4 and the CWA’s jurisdictional provision, 33 U.S.C. § 1365(a).5 Neither

of these provisions specifies any threshold requirement for subject matter

jurisdiction, let alone ties its jurisdictional grant to the issue of diligent

prosecution. See Arbaugh, 546 U.S. at 515 (“But neither § 1331, nor Title VII’s

jurisdictional provision, 42 U.S.C. § 2000e–5(f)(3) . . . specifies any threshold

ingredient akin to 28 U.S.C. § 1332’s monetary floor.”); see also Reed Elsevier,

Inc., 130 S. Ct. at 1246 (“[N]either § 1331, . . . nor § 1338(a), which is specific to

copyright claims, conditions its jurisdictional grant on whether copyright holders

have registered their works before suing for infringement.”). Instead, the

“diligent prosecution” bar is located in a separate provision of the CWA that does

not pertain or refer to jurisdiction. See Arbaugh, 546 U.S. at 515-16 (holding

4

Section 1331 provides that “[t]he district courts shall have original jurisdiction of all

civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.

§ 1331.

5

The CWA’s jurisdiction-conferring provision, located in the final paragraph of

subsection (a), states that “[t]he district courts shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties, to enforce such an effluent standard

or limitation . . . .” 33 U.S.C. § 1365(a).

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that Title VII’s employee-numerosity requirement is nonjurisdictional because

it is located in a provision separate from those granting courts subject matter

jurisdiction and the provision does not speak in jurisdictional terms); see also

Reed Elsevier, Inc., 130 S. Ct. at 1245-46 (holding that the Copyright Act’s

registration requirement is not jurisdictional primarily because it is located in

a provision separate from those granting the courts subject matter jurisdiction

and the provision does not “clearly state[]” that the requirement is

jurisdictional). Thus, § 1365(b)(1)(B)’s location in a provision separate from the

jurisdiction-granting provisions indicates that Congress did not intend the

provision to be jurisdictional.

The “historical treatment” factor also does not indicate that the provision

ranks as jurisdictional. Reed Elsevier, Inc., 130 S. Ct. at 1246. No Supreme

Court cases have determined that the “diligent prosecution” provision of the

CWA, or any similar provision in other environmental statutes, is jurisdictional.

“There is thus no ‘long line of [Supreme] Court[] decisions left undisturbed by

Congress’ on which to rely.” Gonzalez, 132 S. Ct. at 648 n.3 (citation omitted);

see Henderson, 131 S. Ct. at 1203 (“When a long line of [Supreme] Court[]

decisions left undisturbed by Congress has treated a similar requirement as

jurisdictional, we will presume that Congress intended to follow that course.”)

(citations and internal quotation marks omitted).

Based on the foregoing analysis, we conclude that Congress has not

provided a clear statement that the “diligent prosecution” bar is jurisdictional.

Absent such a clear statement from Congress, we hold that the “diligent

prosecution” bar is a nonjurisdictional limitation on citizen suits. See Arbaugh,

546 U.S. at 516 (“[W]hen Congress does not rank a statutory limitation on

coverage as jurisdictional, courts should treat the restriction as nonjurisdictional

in character.”).

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Our conclusion that the CWA’s “diligent prosecution” provision is

nonjurisdictional is buttressed by the Seventh Circuit’s recent decision in Adkins

v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011). There, the court held that

the “diligent prosecution” provision of the Resource Conservation and Recovery

Act (“RCRA”)—which is virtually identical to the “diligent prosecution” provision

of the CWA6—is not jurisdictional. Id. at 492. Applying the guiding principles

of the recent Supreme Court cases, the Seventh Circuit concluded that, because

“RCRA’s limits on citizen suits appear in separate provisions that do not ‘speak

in jurisdictional terms,’” the RCRA “diligent prosecution” bar is a

nonjurisdictional claim-processing rule. Id. (citations omitted).

Having determined that the CWA’s “diligent prosecution” bar is not

jurisdictional, the question still remains whether the “diligent prosecution”

provision precludes LEAN’s action in the present case. The Defendants assert

that the EPA’s continued enforcement of the 2002 consent decree constitutes

diligent prosecution. Indeed, the Defendants point to the extensive remedial

measures they are undertaking, as required by the 2002 consent decree, which

are projected to cost the Defendants over $1 billion. The Defendants contend

that LEAN’s “lawsuit stands as an impediment” to their efforts to achieve

compliance with the CWA. However, LEAN asserts that the EPA is not

diligently prosecuting the 2002 consent decree, noting the plants’ ongoing, non-

compliant discharges and the EPA’s failure to impose stipulated penalties for

these violations. LEAN argues that the issue of “diligent prosecution” is a fact-

intensive question that can only be answered after the proper development of a

record. We take no position on these arguments. We think it wise for the

district court to determine in the first instance whether LEAN’s suit is precluded

6

See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 23 (1989) (noting that the notice

provisions of the RCRA and the CWA, like those of many other environmental statutes, were

“modeled upon § 304 of the Clean Air Amendments of 1970”).

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under the “diligent prosecution” provision. See Breaux v. Dilsaver, 254 F.3d 533,

538 (5th Cir. 2001) (“Although this court may decide a case on any ground that

was presented to the trial court, we are not required to do so.”) (citation omitted).

III. CONCLUSION

For the foregoing reasons, we REVERSE the judgment of the district court

and REMAND for further proceedings consistent with this opinion.

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