United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2000 Decided January 30, 2001
No. 00-1258
National Wildlife Federation, et al.,
Petitioners
v.
Carol M. Browner,
Administrator, Environmental Protection Agency and
Environmental Protection Agency,
Respondents
American Forest and Paper Association, Inc.,
Intervenor
On Motion to Dismiss the Petition
for Want of Jurisdiction
Raymond B. Ludwiszewski argued the cause for Industry
Petitioners Boise Cascade Corporation, et al. With him on
the briefs were Peter E. Seley and Scott H. Segal. Gene E.
Godley entered an appearance.
Neil S. Kagan argued the cause and filed the brief for
petitioners National Wildlife Federation, et al.
Jon M. Lipshultz, Attorney, U.S. Department of Justice,
argued the cause for respondents. Lois J. Schiffer, Assistant
Attorney General, Karen L. Egbert, Attorney, and Carol Ann
Siciliano, Attorney, Environmental Protection Agency, were
on the brief. Seth M. Barsky, Attorney, U.S. Department of
Justice, entered an appearance.
Before: Williams and Tatel, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: The National Wildlife Federation
and various pulp, paper, and paperboard companies petitioned
for review of the Environmental Protection Agency's new
effluent guidelines for paper mills. At this stage of the
proceedings, we consider Industry petitioners' motion to dis-
miss NWF's petition for lack of subject matter jurisdiction.
This is a simple issue. Because the statutory provision
Industry petitioners invoke is not jurisdictional, we deny their
motion.
I
In April of 1998, EPA promulgated regulations, known as
the "Cluster Rules," governing parts of the paper and pulp
industry. The Rules include both effluent limitation guide-
lines under the Clean Water Act and emission standards
under the Clean Air Act. See National Emission Standards
for Hazardous Air Pollutants for Source Category: Pulp and
Paper Production, 63 Fed. Reg. 18,504 (April 15, 1998).
Six environmental groups, including the National Wildlife
Federation, filed a joint petition for review of the Clean
Water Act portion of the Rules in the Ninth Circuit. Various
paper producers--we will refer to them collectively as "Indus-
try petitioners"--then filed petitions for review of the effluent
guidelines here and in the Fourth and Eleventh Circuits.
The three Industry petitions were transferred to the Ninth
Circuit, which consolidated them with NWF's. Industry peti-
tioners moved to dismiss the NWF petition for lack of subject
matter jurisdiction or, in the alternative, to transfer the case
to this circuit.
Without ruling on the motion to dismiss, the Ninth Circuit
transferred the case here. Nat'l Wildlife Fed'n v. Browner,
No. 98-70506 (9th Cir. Nov. 3, 1989) (order granting transfer
of venue to D.C. Circuit). We bifurcated the motion to
dismiss and the merits, holding the merits in abeyance pend-
ing resolution of the jurisdictional issue. Both NWF and
EPA opposed the motion to dismiss. While that motion was
pending, Industry petitioners filed an additional motion to
sanction both NWF and EPA for alleged disclosure, conceal-
ment, and use of protected confidential business information.
II
Section 509(b)(1) of the Clean Water Act provides:
Review of the [EPA] Administrator's action (A) in pro-
mulgating any standard of performance under section
1316 of this title, (B) in making any determination pursu-
ant to section 1316(b)(1)(C) of this title, (C) in promulgat-
ing any effluent standard, prohibition, or pretreatment
standard under section 1317 of this title, (D) in making
any determination as to a State permit program submit-
ted under section 1342(b) of this title, (E) in approving or
promulgating any effluent limitation or other limitation
under section 1311, 1312, 1316, or 1345 of this title, (F) in
issuing or denying any permit under section 1342 of this
title, and (G) in promulgating any individual control
strategy under section 1314(l) of this title, may be had by
any interested person in the Circuit Court of Appeals of
the United States for the Federal judicial district in
which such person resides or transacts business which is
directly affected by such action upon application by such
person....
33 U.S.C. s 1369(b)(1) (emphasis added). Industry petition-
ers assert that the language specifying review in the circuit
where a petitioner "resides or transacts business" is jurisdic-
tional. They urge us to dismiss for lack of jurisdiction
because, they claim, only one of the NWF petitioners--the
Clark Fork-Pend Oreille Coalition--"resides or transacts
business" in the Ninth Circuit, and this petitioner lost stand-
ing (or, alternatively, its claim became moot) nine months
after NWF's petition was filed. Disagreeing, NWF argues
that the "resides or transacts business" clause in section
509(b)(1) is a venue provision, that venue in the Ninth Circuit
was properly established, and that Industry petitioners'
standing and mootness arguments are without merit. To
resolve Industry petitioners' motion to dismiss, we need
address only the parties' disagreement over the meaning of
section 509(b)(1).
So far as we can tell, no court has yet decided whether the
"resides or transacts business" requirement of section
509(b)(1) is jurisdictional. Courts and commentators, howev-
er, have assumed that similar provisions in other statutes
determine venue, not jurisdiction. See Fed. Power Comm'n
v. Texaco, 377 U.S. 33, 37-39 (1964) (assuming a provision
stating that an aggrieved party "may obtain review ... in the
court of appeals of the United States for any circuit wherein
the natural-gas company to which the order relates is located
or has its principal place of business, or in the United States
Court of Appeals for the District of Columbia" was a venue
provision, despite an explicit reference to "jurisdiction" later
in the provision, see 15 U.S.C. s 717r(b)); 15 Charles Alan
Wright, Arthur R. Miller, & Edward H. Cooper, Federal
Practice and Procedure s 3816 at 166-67 n.4 (2d ed. 1986)
(implying that a provision in the Federal Trade Commission
Act allowing review in "any circuit ... where such person,
partnership, or corporation resides or carries on business" is
a venue provision). Moreover, in Texas Municipal Power
Agency v. EPA, 89 F.3d 858 (D.C. Cir. 1996), we decided that
an analogous provision of the Clean Air Act, section 307(b)(1),
determines venue. That section provides that
[a] petition for review of action of the Administrator in
promulgating any national primary or secondary ambient
air quality standard, [any standard or any requirements
under a variety of other specified sections of the Act], or
any other nationally applicable regulations promulgated,
or final action taken, by the Administrator under this
chapter may be filed only in the United States Court of
Appeals for the District of Columbia. A petition for
review of ... any other final action of the Administrator
under this chapter ... which is locally or regionally
applicable may be filed only in the United States Court
of Appeals for the appropriate circuit.
42 U.S.C. s 7607(b)(1) (emphasis added). We rejected EPA's
contention that the section was jurisdictional. Noting that it
"[could] be read as prescribing the choice among circuits and
not the power of a particular federal circuit court to hear a
claim," see Texas Mun., 89 F.3d at 867, we suggested that
"the provision's reference to where a petitioner may 'file' "
and its "unequivocal characterization in the legislative history
as a venue provision" both supported the view that it speci-
fied venue. Id. Although we acknowledged that there was
"some 'jurisdictional' language" elsewhere in the section, such
as a "clearly jurisdictional 60-day limit for filing petitions for
review," and that the language was "mandatory rather than
providing a 'choice' of circuits," we nevertheless thought these
facts "not determinative":
we think it more significant that federal court power to
entertain petitions is clear, that the provision refers to
where a petitioner must file, and that the apparent
congressional purpose was to place nationally significant
decisions in the D.C. Circuit. Given the less than clear
language, the structure of the section--dividing cases
among the circuits--and the legislative history indicate
that s 307(b)(1) is framed more as a venue provision.
Id.
In light of Texas Municipal, we think the statute at issue
in this case determines venue, not jurisdiction. Like the
statutory language in Texas Municipal, section 509(b)(1)'s
language--"[r]eview of the Administrator's action ... may be
had by any interested person in the Circuit Court of Appeals
of the United States for the Federal judicial district in which
such person resides or transacts business"--is best read as
"prescribing the choice among circuits and not the power of a
particular federal circuit court to hear a claim." See Texas
Mun., 89 F.3d at 867. In fact, for at least two reasons, this
reading has even more facial plausibility here than it did in
Texas Municipal. To begin with, the provision at issue in
Texas Municipal contained exclusive language stating that a
petition for review "may be filed only" in the specified circuit.
See id. at 867 n.6 (emphasis added). Despite similar language
in, for example, the general venue statute for the district
courts, see 28 U.S.C. s 1391 (a) & (b), this exclusive language
could have been taken to suggest that the specified court had
exclusive jurisdiction over a particular kind of case. In
concluding otherwise, we relied on a variety of other factors,
including the legislative history and the provision's focus on
where a petitioner had to "file." Because section 509(b)(1)
contains no such exclusive language, it is far less plausible to
think it confers exclusive jurisdiction in the first place. The
Clean Air Act provision at issue in Texas Municipal, more-
over, required petitioners to file particular kinds of petitions
in particular courts--petitions for review of national actions in
this circuit, and petitions for review of regional actions in the
geographically appropriate circuit. Section 509(b)(1) simply
allows for review of any enumerated claim in whichever
circuit an interested person resides or transacts business. Its
purpose is thus even more clearly to "divid[e] cases among
the circuits," see Texas Mun., 89 F.3d at 867, placing deci-
sions in the circuits in which "interested person[s]" are locat-
ed, and thus ensuring, as EPA suggests, that "the appellate
court that hears the matter has some direct connection to the
parties involved in the proceeding." Brief for EPA at 3.
Our conclusion that section 509(b)(1) determines venue
finds further support from the fact that, as in Texas Munici-
pal, "federal court power to entertain petitions" under the
section is clear: under section 509(b)(1), every interested
person challenging an enumerated action has a court in which
to obtain review. Industry petitioners' interpretation con-
flicts with this broad grant of power, since under their
reading, "the punishment for a petitioner's failure to file its
petition initially in the proper circuit court of appeals ... is
dismissal of the petition for want of jurisdiction, even where
the petitioner otherwise can demonstrate standing to bring its
petition," Brief for EPA at 3, thus either denying review to an
otherwise qualified person, if the statute of limitations has
run, or making review more burdensome. Reading section
509(b)(1) as a venue provision comports better with the broad
grant of appellate authority, since the standard remedy for
improper venue is to transfer the case to the proper court
rather than dismissing it--thus preserving a petitioner's abili-
ty to obtain review. See Wright, Miller, & Cooper s 3827 at
268-29 ("It is not surprising that in most cases of improper
venue the courts conclude that it is in the interest of justice to
transfer to a proper forum rather than to dismiss.").
Disagreeing with this reading of the statute, Industry
petitioners argue that Texas Municipal actually supports
their claim that section 509(b)(1) is jurisdictional, pointing out
that the provision at issue in that case specified where a
petition for review "may be filed," while the provision here
specifies where "[r]eview ... may be had." Noting that our
decision in Texas Municipal singled out, among other factors,
"the provision's reference to where a petitioner may 'file,' "
Texas Mun., 89 F.3d at 867, Industry petitioners argue that
"the Court recognized [in Texas Municipal] that the lan-
guage in Clean Air Act s 307(b)(1) is intended to limit the
petitioner's ability to file a challenge to agency action in
particular fora. The language of Clean Water Act
s 509(b)(1), on the other hand, limits the court's ability to
review such a petition." Brief for Appellant at 7 n.1.
Though perhaps not "frivolous" in the Rule 11 sense, see
Fed. R. Civ. P. 11(b)(2), this argument is exceptionally uncon-
vincing. As we have already pointed out, our concern with
the word "file" in Texas Municipal was motivated by the
exclusive language in the provision there--language not found
in section 509(b)(1). More to the point, it is simply not clear,
as Industry petitioners assert, that section 509(b)(1)'s lan-
guage focuses on courts rather than petitioners. The provi-
sion does not explicitly address the courts: it does not say,
for example, that "only the court where any interested party
resides" may review a petition. Instead, it limits only where
review "may be had." And unlike the other provisions Indus-
try petitioners mention that confer jurisdiction based on
residence, section 509(b)(1) never uses the word "jurisdic-
tion." Cf., e.g., 26 U.S.C. s 7609(h)(1); Deal v. United States,
759 F.2d 442, 444 (5th Cir. 1985) (interpreting 26 U.S.C.
s 7609(h)(1) as a jurisdictional provision). Moreover, al-
though section 509(b)(1) does not use the word "file," it does
state that review may be had by an interested person in the
appropriate circuit "upon application by such person" (em-
phasis added). Thus, like the provision in Texas Municipal,
it clearly directs petitioners where to file.
Even more unconvincing is Industry petitioners' second
(and main) argument for reading section 509(b)(1) as jurisdic-
tional. Pointing out that courts have found other provisions
in the same section--such as the enumeration of Administra-
tor actions and the limitation to "interested persons"--to be
jurisdictional, see City of Baton Rouge v. EPA, 620 F.2d 478,
480 (5th Cir. 1980) (stating that "the Courts of Appeals have
jurisdiction for direct review only of those EPA actions
specifically enumerated in 33 U.S.C. s 1369(b)(1)"), Mont-
gomery Envtl. Coalition v. Costle, 646 F.2d 568, 577-78 (D.C.
Cir. 1980) (finding that the term "interested person" in
section 509(b) incorporates the jurisdictional injury-in-fact
requirement), Industry petitioners argue that it would be
"anomalous if all the different limitations on judicial review
embodied in section 509(b)(1) are considered jurisdictional
except the provision limiting the court in which review may be
had." Brief for Appellant at 6. Wholly undercutting this
argument, Texas Municipal found the fact that the judicial
review provision at issue there also contained some jurisdic-
tional restrictions to be "not determinative." 89 F.3d at 867.
Industry petitioners could have argued--but did not--that
unlike in Texas Municipal, the legislative history of the Clean
Water Act is not "unequivocal." The Senate Report accom-
panying the original Senate version of the Act states that
"[f]or ... actions which run only to one region, [section 509]
places jurisdiction in the U.S. Court of Appeals for the
Circuit in which the affected State or region ... is located."
S. Rep. No. 92-414, at 85 (1971) (emphasis added). Even if
the significance of this snippet of legislative history were
clear, we doubt it would change our view of section 509(b)(1).
For at least two reasons, however, its significance is not at all
clear. First, the judicial review provision in the Senate
version of the bill differed substantially from the one enacted.
See S. Conf. Rep. No. 92-1236, at 147-48 (1972). The legisla-
tive history cited above thus cannot be viewed as commenting
directly on the language at issue here. Second, Congress
subsequently revised section 509(b)(1), changing the original
phrase, "resides or transacts such business," to "resides or
transacts business which is directly affected by such ac-
tion...." See Historical and Statutory Notes, 1987 Amend-
ment, 33 U.S.C.A. s 1369, at 381 (West Supp. 2000). The
legislative history accompanying these revisions expressly
refers to section 509(b)(1) as a "venue" provision at least six
separate times. See S. Rep. No. 99-50, at 31 (1985) ("The
purpose of the changes ... is to clarify the proper venue for
court of appeals review....") (emphasis added); id. at 32
("In order to eliminate ... the potential for threshold litiga-
tion over proper venue, the Committee amendment changes
the venue provision....") (emphasis added); H.R. Conf. Rep.
No. 99-1004, at 164 (1986) ("The purpose of the changes ...
is to clarify the proper venue for court of appeals review....
The Senate bill provides that proper venue for judicial review
... shall be in the Circuit Court of Appeals [where] the
applicant resides or transacts business....") (emphasis add-
ed); Section-by-Section Analysis of the Water Quality Act of
1987, 133 Cong. Rec. H131 (daily ed. Jan. 7, 1987), reprinted
in 1987 U.S.C.C.A.N. 5, 42 ("Subsection (a) amends Section
509(b)(1) ... by modifying the choice of venue available for
persons seeking judicial review of certain actions taken by the
Administrator.") (emphasis added). Though it is certainly
true, as Industry petitioners argue, that "subsequent legisla-
tive history is a hazardous basis for inferring the intent of an
earlier Congress," Pension Benefit Guaranty Corp. v. LTV
Corp., 496 U.S. 633, 650 (1990) (internal quotation marks
omitted), it is nonetheless sufficient in this case to offset any
weight we might give the fragment from the earlier Senate
Report.
In view of these considerations, we hold that section
509(b)(1) determines venue, not jurisdiction. Since objections
to venue may be waived, see Wright, Miller, & Cooper
s 3829 at 309, and since Industry petitioners concede that
"[t]he proper venue of the present case is no longer at issue,"
Reply Brief for Appellant at 2, we reach neither Industry
petitioners' nor NWF's remaining arguments. Industry peti-
tioners' motion to dismiss is denied, and their additional
motion for sanctions is deferred to the merits panel.
So ordered.