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          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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                                  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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                                  No. 11-30549

      (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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                                         No. 11-30549

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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                                  No. 11-30549

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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                                     No. 11-30549

      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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                                   No. 11-30549

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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