IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60050

16 FRONT STREET, L.L.C.; C. RICHARD COTTON, 

 Plaintiffs–Appellants,

v.

MISSISSIPPI SILICON, L.L.C.; GARY C. RIKARD, Executive Director, 

Mississippi Department of Environmental Quality, In His Official Capacity 

and As Executive Director of the Mississippi Environmental Quality Permit 

Board, 

 Defendants–Appellees.

Appeal from the United States District Court 

for the Northern District of Mississippi

Before CLEMENT, PRADO, and OWEN, Circuit Judges.

PRISCILLA OWEN, Circuit Judge:

16 Front Street, LLC and Richard Cotton (collectively, Front Street) filed 

a citizen suit under the Clean Air Act (CAA), 42 U.S.C. § 7604, to enjoin 

Mississippi Silicon from constructing a silicon plant. They later amended their 

complaint to include Gary C. Rikard, in his official capacity as Executive 

Director of the Mississippi Department of Environmental Quality and the 

Mississippi Environmental Quality Permit Board (collectively, MDEQ). The 

district court dismissed the claim against Mississippi Silicon for lack of subject 

matter jurisdiction. The court then dismissed the claim against MDEQ, 

United States Court of Appeals

Fifth Circuit

FILED

March 30, 2018

Lyle W. Cayce

Clerk

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determining that the time-of-filing rule barred amending a complaint over 

which the court lacked jurisdiction. We affirm in part, reverse in part, and 

remand for further proceedings.

I

The CAA prohibits construction of any “major emitting facility” unless 

the requirements of the Prevention of Significant Deterioration (PSD) Program 

are met.1 The PSD program requires that “a permit has been issued for such 

proposed facility in accordance with this part setting forth emission limitations 

for such facility which conform to the requirements of this part.”2 The PSD 

program also includes other substantive and procedural requirements, such as

a demonstration that the facility will meet emissions standards and a public 

hearing on the permit.3

This court has previously described the history and intent of the CAA’s 

PSD program.4 Importantly, the CAA makes “the States and the Federal 

Government partners in the struggle against air pollution.”5 Though “‘[s]tates 

have the primary role in administering and enforcing the various components 

of the PSD program[,]’ . . . Congress has set forth explicit substantive and 

procedural requirements that must be met prior to the construction of any 

major emitting facility.”6 States must design a plan for the enforcement and 

implementation of the CAA and submit it to the Environmental Protection 

Agency (EPA) for approval.7 The EPA “interprets existing law and regulations 

to require an opportunity for state judicial review of PSD permit actions . . . by 

 

1 42 U.S.C. § 7475(a).

2 Id. § 7475(a)(1).

3 Id. § 7475(a)(2)-(8).

4 CleanCOALition v. TXU Power, 536 F.3d 469, 471-73 (5th Cir. 2008).

5 Id. at 471 (quoting Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990)).

6 Id. at 472 (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 491 

(2004)).

7 Id. at 471-72.

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permit applicants and affected members of the public in order to ensure an 

adequate and meaningful opportunity for public review and comment on all 

issues within the scope of the permitting decision, including environmental 

justice concerns and alternatives to the proposed source.”8 The EPA approved 

Mississippi’s CAA state implementation plan.9

In August 2013, Mississippi Silicon applied to MDEQ for a PSD permit 

to construct a silicon metal manufacturing plant in Burnsville, Mississippi. 

MDEQ issued a draft permit, making it available for public notice and 

comment by posting it on the MDEQ website on October 23, 2013. The 

following day, it published a notice of the comment period in a local paper, 

soliciting public comments through November 22, 2013. This notice advised 

that a public hearing would “be held if the Permit Board finds a significant 

degree of public interest.” MDEQ also made certain materials relating to the 

permit available at the Burnsville Public Library. Only the EPA and United 

States Department of Agriculture commented on the draft permit. After the 

comment period ended, MDEQ issued a final permit for the Burnsville Plant, 

which the Mississippi Permit Board voted to accept in December of 2013.

Front Street filed this suit on September 29, 2014 under the citizen suit 

section of the CAA, 42 U.S.C. § 7604(a)(3). This section states that “any person 

may commence a civil action on his own behalf . . . against any person who 

proposes to construct or constructs any new or modified major emitting facility 

without a permit required under [the PSD program].”10 Front Street argued 

that the permit was not “issued in accordance with PSD,” because Mississippi 

Silicon and MDEQ did not “meet all applicable procedural requirements” and 

 

8 Id. at 473 (quoting Approval and Promulgation of Air Quality Implementation Plans; 

Commonwealth of Virginia—Prevention of Significant Deterioration Program, 61 Fed. Reg. 

1880 (Jan. 24, 1996) (to be codified at 40 C.F.R. pt. 52)).

9 See 40 C.F.R. § 52.1272 (2016).

10 42 U.S.C. § 7604(a)(3).

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that, consequently, Mississippi Silicon was constructing a new major emitting 

facility without the required PSD permit. Front Street alleged various 

procedural deficiencies, including: (1) a public comment period of only 29 days

(instead of 30); (2) inadequate materials available for public review;

(3) insufficient time to review the materials; and (4) the lack of a public 

hearing. 

Front Street moved for a temporary restraining order and preliminary 

injunction. The district court denied the restraining order due to uncertainty 

about subject matter jurisdiction. The court called for additional briefing on 

subject matter jurisdiction, and pointed out that MDEQ was “noticeably 

absent” from the proceedings and that it was unclear what relief could be 

obtained if MDEQ were not a party.

Four months after filing, Front Street amended the complaint joining

Gary C. Rikard, in his official capacity as Executive Director of MDEQ and its 

Permit Board, as an additional defendant. The amended complaint asserted

that there was jurisdiction over the claim against MDEQ under 42 U.S.C. 

§ 7604(a)(1), which allows an action against any “governmental 

instrumentality or agency . . . who is alleged to have violated . . . or to be in 

violation of [ ] an emission standard or limitation under [the CAA].”11 The CAA 

requires plaintiffs to give states 60 days’ notice prior to commencing an action 

under § 7604(a)(1).12 Front Street sent the required notice to MDEQ on 

November 14, 2014, and filed the amended complaint on January 23, 2015.

The district court dismissed Front Street’s claim against Mississippi 

Silicon for lack of subject matter jurisdiction after determining that the claim 

did not meet the requirements of the CAA’s citizen suit section. The court later 

 

11 42 U.S.C. § 7604(a)(1).

12 Id. § 7604(b)(1)(A).

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dismissed without prejudice the claim against MDEQ for lack of subject matter 

jurisdiction. The district court concluded that “[b]ecause this Court lacked 

jurisdiction at the time the original complaint was filed, the time-of-filing rule 

compels the conclusion that this Court lacks jurisdiction over the amended 

complaint.”

II

We first consider Front Street’s claim against Mississippi Silicon under 

§ 7604(a)(3). We review de novo the district court’s dismissal of Mississippi 

Silicon’s claim for lack of subject matter jurisdiction.13

This court previously analyzed the language of § 7604(a)(3) in 

CleanCOALition v. TXU Power.14 In that case, environmental interest groups 

filed a citizen suit alleging that the defendant’s permit application did not 

comply with the requirements of the PSD program.15 The defendant had not 

only applied for a permit, but had since successfully obtained one.16 We agreed 

with the district court’s interpretation of § 7604(a)(3) “as authorizing citizen 

suits when an entity proposes to construct or constructs a facility without a 

permit whatsoever.”17 We rejected the argument that “without a permit” 

meant “without a permit that complies with the CAA” because we “decline[d] 

to rewrite the plain language of the statute.”18 We held that “§ 7604(a)(3) does 

not authorize preconstruction citizen suits against facilities that have either 

obtained a permit or are in the process of doing so.”19

 

13 Meredith v. La. Fed’n of Teachers, 209 F.3d 398, 402 (5th Cir. 2000).

14 536 F.3d 469 (5th Cir. 2008). 

15 Id. at 470.

16 Id. at 479. 

17 Id. at 478-79.

18 Id. at 479.

19 Id.

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Front Street contends that Mississippi Silicon is “without a permit” 

because a “purported PSD permit issued in violation of the [PSD program]

requirements” is not a PSD permit. Front Street argues that the violations of 

the permitting process render Mississippi Silicon’s permit not a PSD permit,

citing language from CleanCOALition labeling PSD permit requirements 

“preconditions for granting a preconstruction permit.”20 However, in 

CleanCOALition, we rejected the argument that “without a permit” meant 

“without a permit that complies with the CAA.”21 We are bound by that 

decision and therefore reject the argument that “without a permit” means 

“without a permit that complies with procedural requirements.”

Mississippi Silicon obtained a PSD permit and has since completed 

construction of the plant. Because § 7604(a)(3) does not authorize suits 

“against facilities that have either obtained a permit or are in the process of 

doing so,”22 it does not apply here. Accordingly, we affirm the district court’s 

dismissal of the claim against Mississippi Silicon.

III

We turn to the dismissal of the claims against MDEQ for lack of subject 

matter jurisdiction, which turns only on the time-of-filing rule. We emphasize 

that no party contends that the district court had jurisdiction over claims 

against Mississippi Silicon by virtue of the amended complaint that added 

MDEQ as a defendant. The only question is whether the district court had 

subject matter jurisdiction over the claims against MDEQ simply because it 

was not included as a defendant in the initial complaint, and the district court 

had no subject matter jurisdiction over the claims against Mississippi Silicon, 

the sole defendant in the initial complaint.

 

20 Id. at 477. 

21 Id. at 479.

22 Id. at 478.

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Front Street’s original complaint named Mississippi Silicon as the sole

defendant, asserting a claim under a federal statute. After the district court

questioned why MDEQ had not also been made a defendant, Front Street 

amended its complaint to include MDEQ as a defendant and asserted federal 

question jurisdiction under § 7604(a)(1). The district court subsequently

dismissed the claims against Mississippi Silicon, correctly, for the reasons 

considered above, because the federal statute under which Front Street sued 

did not provide a cause of action. The district court then dismissed the claims

against MDEQ for lack of subject matter jurisdiction. The district court

reasoned that because it had no jurisdiction over the claims in the initial 

complaint, when only Mississippi Silicon was a defendant, it was barred by the 

“time-of-filing rule” from considering claims in an amended complaint that had 

added MDEQ as a defendant, even if it would otherwise have federal question 

jurisdiction. 

The statute granting jurisdiction to federal courts when a federal 

question is asserted is 28 U.S.C. § 1331, which provides, “[t]he district courts 

shall have original jurisdiction of all civil actions arising under the 

Constitution, laws, or treaties of the United States.”23 It is undisputed that 

Front Street’s claims against MDEQ arise under the laws of the United States 

and that if they had been brought in a separate suit, the federal district court 

would have subject matter jurisdiction. MDEQ contends, however, and the 

district court held, that the “time-of-filing” rule considers only whether the 

district court had subject matter jurisdiction when the initial complaint was 

filed. MDEQ points out that at the time the initial suit was filed, the 60-day 

notice required under the federal statute had not been given by Front Street, 

and, therefore, Front Street could not have sued MDEQ when it first sued 

 

23 28 U.S.C. § 1331.

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Mississippi Silicon. MDEQ also contends—and the district court reasoned—

that because MDEQ was not a party to the suit when it was initially filed, and 

because there was no subject matter jurisdiction over any of the claims against 

Mississippi Silicon, the district court could not assert jurisdiction over the 

claims against MDEQ in the amended complaint.

As an initial matter, nothing in the text of § 1331 forecloses jurisdiction 

over the claims, grounded in federal law, against MDEQ. The time-of-filing

rule is not based on the text of § 1331. The time-of-filing rule was initially 

expressed in 1824 by Justice Marshall in Mollan v. Torrance, a case involving 

diversity jurisdiction, which was and is governed under a statute other than 

§ 1331.24 The time-of-filing rule in Mollan dealt with ouster of diversity

jurisdiction.25

More recently, the Supreme Court has indicated that the time-of-filing 

rule pertains to diversity of citizenship cases.26 Writing for the Court in Grupo 

Dataflux, Justice Scalia recounted that “[i]t has long been the case that ‘the 

jurisdiction of the court depends upon the state of things at the time of the 

action brought.’”27 He recognized the rule’s familiarity: “This time-of-filing 

rule is hornbook law (quite literally) taught to first-year law students in any 

basic course on federal civil procedure.”28 But he described the rule as one used 

in diversity jurisdiction cases: “It measures all challenges to subject-matter 

jurisdiction premised upon diversity of citizenship against the state of facts 

 

24 22 U.S. 537 (1824).

25 Id. at 539 (concluding that “[i]t is quite clear, that the jurisdiction of the Court 

depends upon the state of things at the time of the action brought, and that after vesting, it 

cannot be ousted by subsequent events”).

26 Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004).

27 Id. (quoting Mollan, 22 U.S. at 539).

28 Id. at 570-71 (footnote omitted).

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that existed at the time of filing—whether the challenge be brought shortly 

after filing, after the trial, or even for the first time on appeal.”29

The Court’s decision in Grupo Dataflux recognized, however, that there 

has “long been an exception to the time-of-filing rule,”30 citing its decision in 

Caterpillar, Inc. v. Lewis.31 We begin our analysis of the issue in the present 

case with Caterpillar because, although it involved jurisdiction based on 

diversity of citizenship in the context of a removed action, its rationale is 

instructive.

It was undisputed in Caterpillar that at the time the suit was removed 

from state court to federal court, complete diversity of citizenship did not exist, 

and the district court had clearly erred in denying the motion to remand.32 

But, as the suit progressed in federal court, the non-diverse party was

dismissed after a settlement was reached between that party and the 

plaintiff.33 By the time of trial and judgment, it was undisputed that “there 

was . . . complete diversity.”34 The Supreme Court held that the federal 

district court had subject matter jurisdiction to try the case and render 

judgment. The Court first recognized that “[d]espite a federal trial court’s 

threshold denial of a motion to remand, if, at the end of the day and case, a 

jurisdictional defect remains uncured, the judgment must be vacated.”35 But 

that was not the case in Caterpillar because “no jurisdictional defect lingered 

through judgment in the District Court.”36

 

29 Id. at 571.

30 Id. at 572.

31 519 U.S. 61 (1996).

32 Id. at 64.

33 Id. at 66.

34 Id. at 73.

35 Id. at 76-77.

36 Id. at 77.

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The Court’s decision in Caterpillar stands for the proposition that even 

in a diversity jurisdiction case, the lack of jurisdiction can be cured when the 

reason for the lack of diversity was the existence of a non-diverse party at the 

time the case first reached the district court. The lack of jurisdiction can be 

cured when the non-diverse party is dismissed in federal court. Assuming, 

without deciding, that the time-of-filing rule applies when a federal question 

is asserted as the basis of jurisdiction, the rationale of Caterpillar leads us to 

conclude that there would be a similar exception that permits a “cure” after 

the time of filing. Though the district court did not have subject matter 

jurisdiction over the claims against Mississippi Silicon in the initial complaint, 

it unquestionably had federal question jurisdiction over the claims asserted in 

the amended complaint against MDEQ. Any defect as to jurisdiction was

“cured” as to MDEQ because the amended complaint asserted a basis for 

federal question jurisdiction, though the initial complaint had not included

MDEQ as a party.

The Supreme Court’s decision in Grupo Dataflux reinforces this 

conclusion, though it did not directly address the issue with which we are 

confronted today. The Court explained in Grupo Dataflux that “Caterpillar

broke no new ground, because the jurisdictional defect it addressed had been 

cured by the dismissal of the party that had destroyed diversity.”37 The Court 

explained: “[t]hat method of curing a jurisdictional defect had long been an 

exception to the time-of-filing rule.”38 In Grupo Dataflux, the Court 

emphasized that in Caterpillar, “[the] Court unanimously held that the lack of 

complete diversity at the time of removal did not require dismissal of the 

case.”39

 

37 Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 572 (2004).

38 Id. 39 Id. at 573.

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The distinction the Court drew between the facts presented in Grupo 

Dataflux and those in Caterpillar also strongly supports our conclusion that 

because the district court had federal question jurisdiction over the claims 

against MDEQ, it is irrelevant that it did not have jurisdiction over the claims 

asserted only against Mississippi Silicon in the initial complaint. In Grupo 

Dataflux, “[t]here was from the beginning of [the] action a single 

plaintiff . . . which . . . was not diverse from the sole defendant.”40 The 

question that the Supreme Court decided was “whether a party’s post-filing 

change in citizenship can cure a lack of subject-matter jurisdiction that existed 

at the time of filing in an action premised upon diversity of citizenship.”41 The 

Court recognized that because the plaintiff, Atlas, “had two partners who were 

Mexican citizens at the time of filing, the partnership was a Mexican citizen,” 

and that because “the defendant, Dataflux, was a Mexican corporation, aliens 

were on both sides of the case, and the requisite diversity was therefore 

absent.”42 One month before trial began in Grupo Dataflux, the Mexican 

partners in Atlas left the partnership.43 The case proceeded to trial and a 

verdict. The Supreme Court held that there was no jurisdiction under these 

circumstances. 

The Court distinguished the situation in Caterpillar, where, at the time 

of trial, there had been a change in parties. The Court explained that in 

Caterpillar, “[t]he postsettlement dismissal of the diversity-destroying 

defendant cured the jurisdictional defect,” and “the less-than-complete 

diversity which had subsisted throughout the action had been converted to 

complete diversity between the remaining parties to the final judgment.”44 The 

 

40 Id. at 579.

41 Id. at 568.

42 Id. at 569.

43 Id. 44 Id. at 573.

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“crux of the analysis in Caterpillar,” the Court explained, “related not to cure 

of the jurisdictional defect, but to cure of a statutory defect, namely, failure to 

comply with the requirement of the removal statute . . . that there be complete 

diversity at the time of removal.”45 The Court emphasized in Grupo Dataflux

that “‘[w]here there is no change of party, a jurisdiction depending on the 

condition of the party is governed by that condition, as it was at the 

commencement of the suit.’”46 In Grupo Dataflux, there was no change in 

parties to the action, but here, the amended complaint did change the parties 

to the action. As the decision in Grupo Dataflux emphasizes, “[t]he purported 

cure arose not from a change in the parties to the action, but from a change in 

the citizenship of a continuing party. Withdrawal of the Mexican partners 

from Atlas did not change the fact that Atlas, the single artificial entity created 

under Texas law, remained a party to the action.”47 The Court recognized that 

“[t]rue, the composition of the partnership, and consequently its citizenship, 

changed. But allowing a citizenship change to cure the jurisdictional defect 

that existed at the time of filing would contravene the principle articulated by 

Chief Justice Marshall in Conolly.”48

In the present case, there was a change in parties after the initial 

complaint was filed. MDEQ was added as a new party, and a claim arising 

under federal law was alleged against it. Allowing a suit against a new party 

to proceed is not an attempt to cure the jurisdictional defect that existed at the 

time of filing as to the initial defendant. Had the initial complaint included 

claims against both MDEQ and Mississippi Silicon, the fact that there was no 

jurisdiction over the claims against Mississippi Silicon would not have 

 

45 Id. at 574.

46 Id. (quoting Conolly v. Taylor, 27 U.S. 556, 565 (1829))

47 Id. at 575.

48 Id.

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precluded federal question jurisdiction over the claims against MDEQ,

assuming the requisite notice had been given. The jurisdictional bases of the 

claims are independent of one another.

Front Street has cited no decision in which the Supreme Court or a 

Circuit Court has held that the time-of-filing rule applies to facts like those in 

the present case. To the contrary, the First Circuit in ConnectU LLC v. 

Zuckerberg held that the time-of-filing rule does not apply when a plaintiff 

“switch[es] jurisdictional horses before any jurisdictional issue has been 

raised” from a defective allegation of diversity jurisdiction in an initial 

complaint to an allegation of federal question jurisdiction in an amended 

complaint.49 That court reasoned that “concerns about forum-shopping and 

strategic behavior” in diversity cases “offer special justifications for” the rule, 

but that such “concerns are not present in the mine-run of federal question 

cases.”50 The ConnectU decision further interpreted the Supreme Court’s 

decision in Grupo Dataflux as “explicitly restrict[ing] the time-of-filing rule to 

diversity cases.”51

We do not hold that that the Supreme Court’s decision in Grupo Dataflux 

restricts the time-of-filing rule to diversity cases. The time-of-filing rule is 

most frequently employed in the removal context, to prevent a plaintiff from 

re-pleading after removal to deprive the federal court of jurisdiction. The fact 

that a case was removed based on a federal question rather than diversity 

should not affect whether a plaintiff may re-plead in order to obtain a remand 

to state court. Our court explored this in Boelens v. Redman Homes, Inc., 

although the plaintiffs in that case had filed suit in federal court and 

 

49 522 F.3d 82, 92 (1st Cir. 2008). 50 Id.

51 Id. at 93.

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established federal question jurisdiction in their initial complaint.52 They 

amended their complaint, however, and it failed to establish jurisdiction in 

federal court.53 The case nevertheless proceeded to trial, but this court held 

that when the plaintiffs voluntarily amended their complaint, the amended 

complaint governed whether the court continued to have jurisdiction and that 

the judgment in their favor obtained at trial must be reversed.54 In so doing, 

we contrasted cases that had been removed to federal court, rather than 

initially filed in federal court.55 We reasoned that the time-of-filing rule 

applies when a case has been removed on the basis of a federal question 

because “[t]he rule that a plaintiff cannot oust removal jurisdiction by 

voluntarily amending the complaint to drop all federal questions serves the 

salutary purpose of preventing the plaintiff from being able to destroy the 

jurisdictional choice that Congress intended to afford a defendant in the 

removal statute.”56 We explained that, “[t]he same considerations are not 

present, however, in a case of original federal question jurisdiction in which 

the plaintiff, rather than the defendant, is invoking the jurisdiction of the 

federal court.”57 “In that case, because the burden is on the plaintiff to 

establish jurisdiction in the first instance, we conclude that the plaintiff must 

be held to the jurisdictional consequences of a voluntary abandonment of 

claims that would otherwise provide federal jurisdiction.”58 We looked to the 

 

52 759 F.2d 504, 506 (5th Cir. 1985).

53 Id. 54 Id. at 512.

55 Id. at 507.

56 Id.; see also id. (“Although there is older authority to the contrary, the majority view 

is that a plaintiff's voluntary amendment to a complaint after removal to eliminate the 

federal claim upon which removal was based will not defeat federal jurisdiction.”). 57 Id. at 507-08.

58 Id. at 508.

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amended complaint, not the initial complaint, in Boelens to determine if the 

federal court had jurisdiction.

Our decision in Boelens teaches that the time-of-filing rule should apply 

in the context of cases raising a federal question that have been removed, but 

that in cases initially brought by a plaintiff in federal court, the time-of-filing 

rule is not dispositive.59 Jurisdiction in federal court may be lost if the 

amended pleading fails to state a claim arising under the laws of the United 

States.

Our decision in Spear Marketing is entirely consistent with Boelens.60 In 

Spear Marketing, the defendants removed the case to federal court on the 

ground that the plaintiff’s claims were completely preempted by the Copyright 

Act.61 In an amended complaint following removal, the plaintiffs no longer 

asserted claims that were preempted and then moved to remand the case to 

state court.62 Unsurprisingly, this court held that “once a case is properly 

removed, the district court retains jurisdiction even if the federal claims are 

later dropped.”63 We explained in Spear Marketing that the plaintiff had

“conflated the question whether the initial removal was proper—which follows 

the time-of-filing rule—with the question whether the district court should, in 

its discretion, remand the case when the federal claims disappear as the case 

progresses.”64 We rejected a number of the plaintiff’s arguments regarding 

jurisdiction, including its assertion that the time-of-filing rule was limited by 

Grupo Dataflux to diversity cases.65 But that statement must be considered in

 

59 Id. at 507-08.

60 Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 591-92 (5th Cir. 2015).

61 Id. at 591.

62 Id.

63 Id. at 592.

64 Id. at 593.

65 Id.

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the context of the issue presented, which was whether, after a defendant had 

properly removed a case, the plaintiff could replead to divest the federal court 

of jurisdiction and therefore require remand to state court. The law is clear 

that a plaintiff cannot do so after removal, and our conclusion that Grupo 

Dataflux did not change the law in this regard is correct and entirely consistent 

with the Supreme Court’s jurisprudence regarding removal cases.66 Our 

decision in Spear Marketing did not address, and did not purport to address,

the factual pattern presented here. 

With regard to federal question jurisdiction, this court has said, in 

certain contexts, that “[a] complaint that is defective because it does not allege 

a claim within the subject matter jurisdiction of a federal court may be 

amended to state a different claim over which the federal court has 

jurisdiction” if the claim “arises out of the conduct or occurrence set forth in 

the original complaint.”67 Using this rationale, we have allowed amendments 

that change the cause of action from § 1981 to Title VII to relate back to the 

original complaint for the purposes of tolling, even though the court had no 

jurisdiction over § 1981 claims, so long as the “amendment ar[ose] out of the 

conduct or occurrence set forth in the original complaint.”68 

In Whitmire v. Victus Ltd., the plaintiff filed suit in federal court

asserting causes of action under a federal statute and contended that the 

district court had supplemental jurisdiction over state-law claims.69 The 

 

66 See, e.g., Rockwell Int’l Corp. v. United States, 549 U.S. 457, 474 n.6 (2007) (“[W]hen 

a defendant removes a case to federal court based on the presence of a federal claim, an 

amendment eliminating the original basis for federal jurisdiction generally does not defeat 

jurisdiction.”).

67 Johnson v. Crown Enters., Inc., 398 F.3d 339, 342-43 n.3 (5th Cir. 2005) (quoting 

Sessions v. Rusk State Hosp., 648 F.2d 1066, 1070 (5th Cir. Unit A Jun. 1981)). 68 Watkins v. Lujan, 922 F.2d 261, 265 (5th Cir. 1991) (quoting Sessions, 648 F.2d at 

1070); see also Johnson, 398 F.3d at 342 n.3 (allowing a § 1981 claim first made in an 

amendment to cure the possible jurisdictional defect over the original Title VII claim).

69 212 F.3d 885, 886-87 (5th Cir. 2000).

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district court granted summary judgment against the plaintiff on the federal 

claims, and dismissed the state-law claims without prejudice.70 The plaintiff 

sought leave to amend to assert that there had been diversity jurisdiction from 

the inception of the case.71 This court held that she could so amend, and that 

the district court abused its discretion in denying the motion to amend.72

By contrast, in United States ex rel. Jamison v. McKesson Corp., we 

rejected attempts by plaintiffs to rest jurisdiction on “substantive jurisdictional 

fact[s]” that first appear in amended complaints, noting that § 1653 does not 

allow curing “substantive defects in jurisdiction.”73 But a later decision from 

our court, Arena v. Graybar Electric Co., held that in a case initially filed in 

federal district court, that court may have had pendant jurisdiction to 

adjudicate state-law claims, even though federal question jurisdiction was 

lacking, and we remanded for a factual determination of whether the plaintiff 

could establish that there had been diversity jurisdiction from the outset of the 

suit.74

 

70 Id.

71 Id.

72 Id. at 890.

73 649 F.3d 322, 328 n.8 (5th Cir. 2011); see id. at 328 (discussing, in a False Claims 

Act case, the Supreme Court’s decision in Rockwell, and holding that “‘[t]he term “allegations”

is not limited to the allegations of the original complaint.’ The [Supreme] Court did not hold, 

however, that the original complaint is irrelevant to jurisdiction or that a relator need not 

establish jurisdiction from the moment he first files his action. Indeed, Rockwell did not 

speak to the question whether a relator can use an amended complaint to establish 

jurisdiction when the original complaint is lacking. Consequently, we fall back on the 

longstanding rule that the amendment process cannot ‘be used to create jurisdiction 

retroactively where it did not previously exist.’ If Jamison's complaint did not establish 

jurisdiction, it should have been dismissed; his amendments cannot save it.” (quoting 

Rockwell Intern. Corp. v. United States, 549 U.S. 457, 473 (2007))); see also In re Katrina 

Canal Breaches Litig., 342 F. App'x 928, 930-31 (5th Cir. 2009) (per curiam) (rejecting the 

exercise of supplemental jurisdiction over state-law claims in an original complaint based 

solely on claims in an amended complaint when the amended complaint added a new 

defendant, new allegations, and a new cause of action).

74 669 F.3d 214, 224-25 (5th Cir. 2012).

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To the extent that there is a conflict between Jamison, on one hand, and 

one of our decisions such as Whitmire, Watkins, Sessions, Johnson, or Arena

on the other, the earlier-in-time decision controls. But in any event, none of 

these cases considers whether, in a suit initially filed in federal court, the 

addition of a new party in an amended complaint can confer jurisdiction over 

the new party even though the initial complaint failed to establish federal 

question jurisdiction as to a different defendant.

The addition of MDEQ as a party is not being used to create jurisdiction 

over the claim against Mississippi Silicon. Nor could it. As described above,

the district court did not have subject matter jurisdiction over the federal 

question claim in the original complaint, which only named Mississippi Silicon 

as a defendant.75 We have found no decision that holds that if an original 

complaint—arising via federal question, not diversity or removal—asserts a 

claim against a party over which the court has no subject matter jurisdiction, 

the district court cannot assert federal question jurisdiction over a claim 

asserted against a new party in an amendment adding the new defendant. It 

is undisputed that had 16 Front Street sued MDEQ alone, after giving the 

required 60 days’ notice, the district court would have had jurisdiction. We can 

discern no basis in the Supreme Court’s jurisprudence for concluding that the 

district court lacked subject matter jurisdiction over the federal-law claims 

against MDEQ. Accordingly, the district court should not have dismissed the 

claims against MDEQ based on the time-of-filing rule.

IV

MS Silicon briefly argues that Front Street lacks standing to appeal the 

dismissal of the claims against MDEQ because Front Street may refile against 

MDEQ and therefore suffered no injury as a result of the district court’s 

 

75 Supra, Section II.

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dismissal without prejudice. This argument runs counter to both the Supreme 

Court’s and our precedents. As the Supreme Court held in United States v. 

Wallace & Tiernan Co., “[t]hat the dismissal was without prejudice to filing 

another suit does not make the cause unappealable, for denial of relief and 

dismissal of the case ended this suit so far as the District Court was 

concerned.”76 We have consistently echoed this position77 and accordingly

reject the argument that Appellants lack standing to appeal their claim 

against MDEQ.

V

Finally, Mississippi Silicon moves for attorneys’ fees pursuant to Rule 38 

of the Federal Rules of Appellate Procedure, which allows the court to award 

damages if an appeal is “frivolous.”78 Mississippi Silicon makes three 

arguments: (1) Appellants’ interpretation of § 7604(a)(3) is frivolous as it was 

“identical to that rejected in CleanCOALition”; (2) Appellants’ appeal of the 

dismissal without prejudice of their claim against MDEQ is “unnecessary and 

a waste,” and thus frivolous; and (3) attorneys’ fees are also warranted because 

Appellants have abused litigation.

As to the first argument, “[a]n appeal is frivolous if the result is obvious 

or the arguments of error are wholly without merit.”79 Bad faith and 

harassment are not necessary for sanctions, but “[b]ad faith may aggravate the 

 

76 336 U.S. 793, 794 n.1 (1949).

77 See, e.g., Linn v. Chivatero, 714 F.2d 1278, 1280 (5th Cir. 1983) (“To say that 

[appellant] may bring a different action in the future is not to say that this action was not 

fully and finally disposed of below.”); see also Prewitt v. City of Greenville, 1999 WL 1131957, 

at *1 (5th Cir. Nov. 16, 1999) (per curiam) (unpublished) (“A dismissal without prejudice may 

constitute a final judgment for purposes of appeal.”).

78 FED. R. APP. P. 38 (“If a court of appeals determines that an appeal is frivolous, it 

may, after a separately filed motion or notice from the court and reasonable opportunity to 

respond, award just damages and single or double costs to the appellee.”).

79 Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988) (per curiam) (citation omitted). 

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circumstances justifying sanctions.”80 Attempting to distinguish precedent 

and offering independent legal analysis are factors that can weigh against 

sanctions.81 Front Street faced long odds in overcoming two legal hurdles as 

to its claims against Mississippi Silicon: the plain text of the statute and the 

Fifth Circuit precedent in CleanCOALition. Nevertheless, Front Street made 

legitimate arguments and attempts to distinguish CleanCOALition. Though 

ultimately unsuccessful, the arguments were not “wholly without merit” and 

do not warrant sanctions. 

As to the second argument, Mississippi Silicon argues that this appeal is 

frivolous because Front Street lacks standing to bring it. Mississippi Silicon 

offers no binding precedent for this proposition and, as discussed above, it is 

without merit. Sanctions are also not warranted here. 

As to its final argument, Mississippi Silicon requests that this court 

consider Appellants’ “[r]elentless [l]itigation [c]ampaign” of filing “meritless 

suits” to damage Mississippi Silicon’s business interests. While “[b]ad faith 

may aggravate the circumstances justifying sanctions,”82 Front Street’s appeal 

of the claim against Mississippi Silicon is not wholly without merit. We 

therefore deny sanctions.

* * *

For the foregoing reasons, we AFFIRM the district court’s judgment that 

it lacks jurisdiction over Mississippi Silicon, L.L.C., but we REVERSE the 

district court’s judgment regarding MDEQ and REMAND for further 

proceedings, as warranted. Mississippi Silicon’s motion for attorneys’ fees is 

also DENIED.

 

80 Id. at 814.

81 See id. at 809.

82 Id. at 814.

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