dissenting:
The majority holds that the district court had no subject matter jurisdiction over the claim of Atlantic City Municipal Utilities Authority (ACMUA) under the citizen suit provision of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1365(a)(2). I would hold that the court had subject matter jurisdiction under the *104citizen suit provision. Although the majority’s analysis makes it likely that ACMUA would, in any event, lose on the merits in whatever court was eventually found to have jurisdiction, my differences with the majority are far from academic. At issue is the jurisdiction of the district courts over suits brought under a statute serving the important public purpose of controlling and abating water pollution. While it may not matter to ACMUA whether it is eaten by a lion or a tiger, the analysis used by the majority in rejecting its claim may make survival of future claims for judicial review of EPA inaction more difficult.
Under the citizen suit provision of the FWPCA, 33 U.S.C. § 1365(a), the district courts have jurisdiction to order the Administrator to perform any act or duty “which is not discretionary.”1 The basis for the majority’s holding that the district court had no subject matter jurisdiction is its conclusion that “here as in Fairview ... the alleged nondiscretionary duty which plaintiff seeks to enforce does not exist.” Maj. Op. at 100. The majority never thereafter explains why the act or duty in question, i.e. to receive current state certification before releasing funds for an application previously approved, should be characterized as discretionary.
The analytic process used by the majority, and indeed by Fairview Township v. EPA, 773 F.2d 517 (3d Cir.1985), to which the majority refers, compresses the jurisdictional inquiry and the merits inquiry into one. The majority first decides whether the statute permits the Administrator to exercise discretion in the matter at issue. If so, then it would hold that there was no subject matter jurisdiction in the district court in the first instance. If there was a nondiscretionary duty, then presumably the majority would, in one swoop, uphold the jurisdiction of the district court and decide the merits, unless there was a factual issue requiring further resolution.
I believe that is an unwise approach to follow in making a jurisdictional ruling. I suggest that a more appropriate course would be to determine from the face of the complaint whether the allegation of a non-discretionary duty appears to be frivolous or insubstantial. If a nonfrivolous claim has been asserted that the Regional Administrator has failed to perform a nondiscretionary duty or act, then I believe that there is jurisdiction in the federal courts under the citizen suit provision.
As the district court in this case stated, “The FWPCA does not specify or imply what acts or duties of the EPA Administrator are not discretionary.” Atlantic City Municipal Utilities Authority v. Regional Administrator, 616 F.Supp. 722, 733 (D.N.J.1985). The Clean Water Act segment of the FWPCA, 33 U.S.C. §§ 1281-1299, vests in the Regional Administrator broad discretion to determine which proposed treatment facilities receive federal funding. The Regional Administrator exercised that discretion in his initial decision to deny funding to ACMUA. Concededly, ACMUA could not have utilized the citizen suit provisions to attack that decision, since it is patently a discretionary duty.
However, the Regional Administrator’s exercise of his discretionary duties was overturned by the EPA’s Board of Assistance Appeals which held that the acquisition of the sewer plant, which was the subject of ACMUA’s application, was “appropriate and eligible under the statutes, regulations and EPA policy.” App. at 25. Thus, the matter was returned to the Re*105gional Administrator. There was no longer any discretionary decision to be made by him, although he retained authority, and indeed the duty, to deny funding if the application failed to comply with any requirement of the Clean Water Act.
The Regional Administrator’s subsequent decision to deny ACMUA funding was based on his interpretation of the statutory provision that requires that funds be given only for “works [that] have been certified by the appropriate State water pollution control agency as entitled to priority over such other works in the State in accordance with any applicable State plan” 33 U.S.C. § 1284(a)(3). The interpretation of statutory language is a matter of law subject to review in the courts, and is not the type of discretionary duty that is precluded from judicial review under the citizen suit provision. As the district court stated, “the FWPCA either requires current certification or it does not.” 616 F.Supp. at 733. I could not characterize as frivolous ACMUA’s contention that the “certification” requirement of the statute could be satisfied by its earlier certification. I would therefore conclude that there was citizen suit jurisdiction under the FWPCA.
In this case, ACMUA seeks a release of funds. If ACMUA is viewed as asserting a monetary claim exceeding $10,000, it would be necessary for this court to decide whether judicial review under the citizen suit provision (or even under the joint provisions of federal question jurisdiction, 28 U.S.C. § 1331, and the Administrative Procedure Act, 5 U.S.C. § 702) belongs to the district courts or to the Claims Court under the exclusive jurisdiction provisions of the Tucker Act, 28 U.S.C. §§ 1346 & 1491. That determination would depend on whether jurisdiction over this type of claim has been withdrawn from the Claims Court by Congress through its enactment of the citizens suit provision of the FWPCA. In a discursive footnote in Fairview, there were references to various cases holding that notwithstanding the Tucker Act, suit could be brought in the district court under a narrow grant of jurisdiction providing for review of the actions of one specific agency. See Fairview, 773 F.2d at 527 n. 18. The majority pretermits consideration of those difficult questions by its decision on the merits in the context of its jurisdictional holding. Analysis of these issues in a dissent would be a dissertation in futility, and I will therefore reserve comment for the day when it would be pertinent to the court’s holding.
I respectfully dissent from the majority’s holding that there was no subject matter jurisdiction under the citizens suit provision.
Each party shall bear its own costs.
. The citizen suit provision, in pertinent part, states:
Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf—
... (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator,
The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties ... to order the Administrator to perform such act or duty, as the case may be,____
33 U.S.C. § 1365(a). Subsection (b) sets forth notice requirements which are not at issue in this case.