Grp. Against Smog & Pollution, Inc. v. Shenango Inc.

摘要

In deciding this case, we have determined that the diligent prosecution bar of the Clean Air Act is a claim-processing rule, not a jurisdictional limitation, and should have been dealt with under Rule 12(b)(6) rather than Rule 12(b)(1). GASP has failed to state a cause of action in its citizen suit because of the diligent prosecution bar. The ACHD diligently prosecuted the same three Clean Air Act violations GASP now attempts to litigate. The ACHD entered into a Consent Decree and Consent Order and Agreement with Shenango which were still in effect when GASP filed its citizen suit. ACHD's prosecution requires compliance with the Act. We hold that when a state or federal agency diligently prosecutes an underlying action in court, the diligent prosecution bar will prohibit citizen suits during the actual litigation as well as after the litigation has been terminated by a final judgment, consent decree, or consent order and agreement. In addition, when a state or federal agency diligently pursues an ongoing consent decree that may be modified by the parties and enforced by the agency, the diligent prosecution bar will prohibit citizen suits.