886 F.3d 549
5th Cir.2018Background
- Front Street, LLC and Richard Cotton sued under the Clean Air Act (CAA) citizen-suit provision alleging Mississippi Silicon constructed a silicon plant without a PSD-compliant permit and sought injunctive relief.
- MDEQ (Gary Rikard, exec. director) was later added as a defendant; Front Street gave the 60-day notice required for suits against a state agency before amending.
- District court dismissed claims against Mississippi Silicon for lack of subject-matter jurisdiction under 42 U.S.C. § 7604(a)(3) because the company had obtained a PSD permit and completed construction.
- The district court also dismissed claims against MDEQ, holding the “time-of-filing” rule barred jurisdiction in the amended complaint because the original complaint (naming only Mississippi Silicon) lacked jurisdiction.
- Front Street appealed; the Fifth Circuit affirmed dismissal as to Mississippi Silicon but reversed dismissal as to MDEQ and remanded, rejecting application of the time-of-filing rule to bar adding a new federal-defendant after filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §7604(a)(3) authorizes suit against a facility that obtained a permit allegedly issued in violation of PSD procedural requirements | "Without a permit" includes permits that fail to comply with PSD requirements, so the permit is not a PSD permit | §7604(a)(3) applies only when no permit exists; a facility that obtained a permit is not subject to preconstruction suit under (a)(3) | Court: Affirmed dismissal; (a)(3) does not cover facilities that obtained a permit (CleanCOALition controlling) |
| Whether adding MDEQ in an amended complaint is barred by the time-of-filing rule because the original complaint lacked federal jurisdiction | Adding MDEQ (with proper 60-day notice) creates federal-question jurisdiction independent of original complaint | Time-of-filing rule looks to jurisdiction at initial filing; because notice was not given then, adding MDEQ cannot confer jurisdiction | Court: Reversed dismissal as to MDEQ; time-of-filing rule does not bar adding a new federal-defendant where amended complaint independently establishes federal-question jurisdiction |
| Whether Front Street lacks appellate standing because dismissal as to MDEQ was without prejudice | Dismissal without prejudice is appealable; denial below terminated this action in district court | Refile opportunity means no concrete injury; therefore no appealable final decision | Court: Rejects MS Silicon's standing argument; dismissal without prejudice is appealable here |
| Whether appeal is frivolous warranting appellate sanctions under Fed. R. App. P. 38 | Appellants raised arguable (though ultimately unsuccessful) legal theories and tried to distinguish precedent | Appellants’ arguments were frivolous or abusive litigation | Court: Denied sanctions; appeal not frivolous |
Key Cases Cited
- CleanCOALition v. TXU Power, 536 F.3d 469 (5th Cir. 2008) (interpreting §7604(a)(3) to permit suits only when no permit has been obtained)
- Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1996) (post-filing dismissal of a non-diverse party can cure a jurisdictional defect)
- Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567 (2004) (time-of-filing rule discussed in diversity context and distinguished from Caterpillar)
- Mollan v. Torrance, 22 U.S. 537 (1824) (early articulation of the time-of-filing principle)
- United States v. Wallace & Tiernan Co., 336 U.S. 793 (1949) (dismissal without prejudice is appealable)
- Boelens v. Redman Homes, Inc., 759 F.2d 504 (5th Cir. 1985) (distinguishing original federal filings from removal context for time-of-filing consequences)
- Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015) (federal jurisdiction retention after removal even if federal claim later dropped)