Thursday, September 4, 2014

Circuit Split on Whether Clean Air Act § 307(b)’s Limitations Are Jurisdictional

As I have described in prior posts this week (here and here), a Seventh Circuit decision from last week created a circuit split with the D.C. and Tenth Circuits regarding whether the timing and venue requirements under Clean Air Act § 307(b), 42 U.S.C. § 7607(b), for judicial review of EPA decisions under the Act are jurisdictional.   On August 28, in Clean Water Action Council of Northeastern Wisconsin v. EPA, the Seventh Circuit held that the limitations are not jurisdictional.  On September 3, in Utah v. EPA, the Tenth Circuit reaffirmed its prior cases holding that the limitations are jurisdictional. 

In the Seventh Circuit case, the jurisdictional/non-jurisdictional distinction mattered because it allowed the court of appeals to dodge the § 307(b) question—in that case, whether the petition for review challenged a nationally applicable regulation and therefore should have been brought in the D.C. Circuit.  Once the court held that § 307(b)’s limitations are not jurisdictional, it was free to deny the petition on other grounds without reaching the § 307(b) issue.  In the Tenth Circuit case, the impact was more significant, because it allowed the court of appeals to dismiss the petitions for review based on untimeliness, over EPA’s objection.  EPA had inadvertently induced the untimeliness in that case by attempting to extend the deadline for filing a petition for review, only to have the Tenth Circuit hold that EPA’s extension had no effect on the application of § 307(b)’s sixty-day deadline.

So how did the two courts reach their differing conclusions?  Judge Easterbrook’s opinion for the Seventh Circuit relied on a presumption, citing recent Supreme Court decisions, that venue and filing deadlines are non-jurisdictional.  In the absence of a “clear statement” or “clean indication” that Congress intended § 307(b)’s limits to be jurisdictional, Judge Easterbrook concluded that they were not.

Judge Bacharach in the Tenth Circuit, by contrast, focused on the text and legislative history of § 307(b), which he read to indicate strong congressional intent to apply the timeliness deadline strictly.  Judge Bacharach reasoned (a) that Congress “used jurisdictional terminology” in the statute; (b) that the legislative history indicated Congress intended the deadline to be strictly applied and that courts could consider untimely petitions only based on new information; and (c) that the sixty-day deadline “serves a jurisdictional function by restricting the congressional waiver of sovereign immunity.” 

To some extent, then, the two opinions seem like ships passing in the night.  Judge Easterbrook did not find the clear statement of congressional intent he believes is required, but he was apparently not pointed to, and did not consider, the legislative materials relied on by Judge Bacharach.  Judge Bacharach, on the other hand, does not seem to read the Supreme Court cases to have established the strong presumption against jurisdictionality that the Seventh Circuit found.  Judge Easterbrook examined precedential treatment of filing deadlines and found a pattern of non-jurisdictionality; Judge Bacharach examined precedential treatment of filing deadlines for appeals to Article III courts and found a pattern of jurisdictionality.  Judge Easterbrook faulted earlier D.C. Circuit and Tenth Circuit decisions (including the original Utah opinion) for their lack of reasoning; Judge Bacharach’s decision on rehearing in Utah presents the most detailed analysis of any court to date.

Given the clear circuit split, and the Supreme Court’s recent strong interest in taking cases examining the jurisdictional/non-jurisdictional distinction, see, e.g., Sebelius  v.  Auburn  Regional  Medical  Center, 133 S. Ct. 817 (2013); Henderson v. Shinseki, 131 S. Ct. 1197 (2011); Reed-Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), the Utah case seems like a case where the Court might well grant certiorari.  (Clean Water Action Council, on the other hand, is a poor vehicle because the United States—loser on the issue—won the case anyway.)

—Todd Aagaard

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