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
`
`F I L E D
`April 17, 2012
`
`No. 11-30549
`
`Lyle W. Cayce
`Clerk
`
`LOUISIANA ENVIRONMENTAL ACTION NETWORK,
`
`v.
`
`Plaintiff–Appellant
`
`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). Subsection (a) of the citizen suit provision, entitled
`1
`“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).
`
` The Act defines “citizen” as “a person or persons having an interest which is or may
`1
`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. In City of Dallas, we “recognized that
`2
`
` Environment America (“EA”), “a federation of [twenty-nine] non-profit, non-partisan,
`2
`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,
`
` With regard to the CWA’s “diligent prosecution” provision, several courts have stated
`3
`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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`No. 11-30549
`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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`No. 11-30549
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`(b) Notice
`No action may be comm