author: Justice Marshall Justice Scalia,

text:
    GWALTNEY OF SMITHFIELD, LTD. v. CHESAPEAKE BAY FOUNDATION, INC., et al.
    No. 86-473.
    Argued October 5, 1987
    Decided December 1, 1987

      Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, and Blackmun, JJ., joined, and in Parts I and II of which Stevens, O’Connor, and Scalia, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Stevens and O’Connor, JJ., joined, post, p. 67.

      E. Barrett Prettyman, Jr., argued the cause for petitioner. With him on the briefs were Richard J. M. Poulson, Patrick M. Raher, Catherine James LaCroix, and John G. Roberts, Jr.

      Louis F. Claiborne argued the cause for respondents. With him on the brief were Jeter M. Watson and James Thornton.

      Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States et al. by Theodore L. Garrett, Katherine L. Rhyne, Robin S. Conrad, James K. Jackson, and Richard Wasserstrom; for the Connecticut Business and Industry Association by Wayne S. Henderson; for the Consolidated Rail Corporation et al. by McNeill Watkins II, James E. Baine, Timothy N. Atherton, Nathan M. Edelstein, Jose A. Berlanga, and Grant Van Home; and for Rollins Environmental Services (NJ) Inc., by William H. Leivis, Jr.

      Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Fried, Acting Assistant Attorney General Hookano, Deputy Solicitor General Wallace, Jeffrey P. Minear, and David C. Shilton; for the State of Alabama et al. by John K. Van de Kamp, Attorney General of California, Roderick E. Walston arid Aliene C. Zanger, Deputy Attorneys General, Don Siegelman, Attorney General of Alabama, Joseph I. Lieberman, Attorney General of Connecticut, Robert E. Walsh, Assistant Attorney General, Warren Price III, Attorney General of Hawaii, James E. Tierney, Attorney General of Maine, Philip Ahrens, Deputy Attorney General, Frank J. Kelley, Attorney General of Michigan, Louis J. Caruso, Solicitor General, William L. Webster, Attorney General of Missouri, Louis W. Rose, Special Assistant Attorney General of New Mexico, T. Travis Medlock, Attorney General of South Carolina, W. J. Michael Cody, Attorney General of Tennessee, Jeffrey L. Amestoy, Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia, and Kenneth Eilcenberry, Attorney General of Washington; for Friends of the Earth et al. by Bruce J. Terris; and for the National Wildlife Federation by Mark Van Putten and Norman L. Dean, Jr.

      Briefs of amici curiae were filed for Bethlehem Steel Corporation et al. by Benjamin Rosenberg; and for Mid-Atlantic Legal Foundation Inc., et al. by Richard B. McGlynn.

   Justice Marshall

delivered the opinion of the Court.

In this case, we must decide whether § 505(a) of the Clean Water Act, also known as the Federal Water Pollution Control Act, 33 U. S. C. § 1365(a), confers federal jurisdiction over citizen suits for wholly past violations.

I

The Clean Water Act (Act), 86 Stat. 816, 33 U. S. C. § 1251 et seq. (1982 ed. and Supp. Ill), was enacted in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” § 1251(a). In order to achieve these goals, § 301(a) of the Act makes unlawful the discharge of any pollutant into navigable waters except as authorized by specified sections of the Act. 33 U. S. C. § 1311(a).

One of these specified sections is §402, which establishes the National Pollutant Discharge Elimination System (NPDES). 33 U. S. C. §1342. Pursuant to § 402(a), the Administrator of the Environmental Protection Agency (EPA) may issue permits authorizing the discharge of pollutants in accordance with specified conditions. § 1342(a). Pursuant to § 402(b), each State may establish and administer its own permit program if the program conforms to federal guidelines and is approved by the Administrator. § 1342(b). The Act calls for the Administrator to suspend the issuance of federal permits as to waters subject to an approved state program. § 1342(c)(1).

The holder of a federal NPDES permit is subject to enforcement action by the Administrator for failure to comply with the conditions of the permit. The Administrator’s enforcement arsenal includes administrative, civil, and criminal sanctions. § 1319. The holder of a state NPDES permit is subject to both federal and state enforcement action for failure to comply. §§ 1319, 1342(b)(7). In the absence of federal or state enforcement, private citizens may commence civil actions against any person “alleged to be in violation of” the conditions of either a federal or state NPDES permit. § 1365(a)(1). If the citizen prevails in such an action, the court may order injunctive relief and/or impose civil penalties payable to the United States Treasury. § 1365(a).

The Commonwealth of Virginia established a federally approved state NPDES program administered by the Virginia State Water Control Board (Board). Va. Code § 62.1-44.2 et seq. (1950). In 1974, the Board issued a NPDES permit to ITT-Gwaltney authorizing the discharge of seven pollutants from the company’s meatpacking plant on the Pagan River in Smithfield, Virginia. The permit, which was reissued in 1979 and modified in 1980, established effluent limitations, monitoring requirements, and other conditions of discharge. In 1981, petitioner Gwaltney of Smithfield acquired the assets of ITT-Gwaltney and assumed obligations under the permit.

Between 1981 and 1984, petitioner repeatedly violated the conditions of the permit by exceeding effluent limitations on five of the seven pollutants covered. These violations are chronicled in the Discharge Monitoring Reports that the permit required petitioner to maintain. See 9 Record, Exh. 10. The most substantial of the violations concerned the pollutants fecal coliform, chlorine, and total Kjeldahl nitrogen (TEN). Between October 27, 1981, and August 30, 1984, petitioner violated its TKN limitation 87 times, its chlorine limitation 34 times, and its fecal coliform limitation 31 times. 9 Record, Stipulation, p. 3. Petitioner installed new equipment to improve its chlorination system in March 1982, and its last reported chlorine violation occurred in October 1982. Id., at 7-8. The new chlorination system also helped to control the discharge of fecal coliform, and the last recorded fecal coliform violation occurred in February 1984. 9 Record, Exh. 10-A. Petitioner installed an upgraded wastewater treatment system in October 1983, and its last reported TKN violation occurred on May 15, 1984. 9 Record, Stipulation, p. 10.

Respondents Chesapeake Bay Foundation and Natural Resources Defense Council, two nonprofit corporations dedicated to the protection of natural resources, sent notice in February 1984 to Gwaltney, the Administrator of EPA, and the Virginia State Water Control Board, indicating respondents’ intention to commence a citizen suit under the Act based on petitioner’s violations of its permit conditions. Respondents proceeded to file this suit in June 1984, alleging that petitioner “has violated . . . [and] will continue to violate its NPDES permit.” 1 Record, Doc. No. 1, p. 5. Respondents requested that the District Court provide declaratory and injunctive relief, impose civil penalties, and award attorney’s fees and costs. The District Court granted partial summary judgment for respondents in August 1984, declaring Gwaltney “to have violated and to be in violation” of the Act. No. 84-0366-R (ED Va. Aug. 30,1984). The District Court then held a trial to determine the appropriate remedy.

Before the District Court reached a decision, Gwaltney moved in May 1985 for dismissal of the action for want of subject-matter jurisdiction under the Act. Gwaltney argued that the language of § 505(a), which permits private citizens to bring suit against any person “alleged to be in violation” of the Act, requires that a defendant be violating the Act at the time of suit. Gwaltney urged the District Court to adopt the analysis of the Fifth Circuit in Hamker v. Diamond Shamrock Chemical Co., 756 F. 2d 392 (1985), which held that “a complaint brought under [§ 505] must allege a violation occurring at the time the complaint is filed.” Id., at 395. Gwaltney contended that because its last recorded violation occurred several weeks before respondents filed their complaint, the District Court lacked subject-matter jurisdiction over respondents’ action. See 4 Record, Doc. No. 44.

The District Court rejected Gwaltney’s argument, concluding that § 505 authorizes citizens to bring enforcement actions on the basis of wholly past violations. The District Court found that “[t]he words ‘to be in violation’ may reasonably be read as comprehending unlawful conduct that occurred solely prior to the filing of the lawsuit as well as unlawful conduct that continues into the present.” 611 F. Supp. 1542, 1547 (ED Va. 1985). In the District Court’s view, this construction of the statutory language was supported by the legislative history and the underlying policy goals of the Act. Id., at 1550. The District Court held in the alternative that respondents satisfied the jurisdictional requirements of §505 because their complaint alleged in good faith that Gwaltney was continuing tú violate its permit at the time the suit was filed. Id., at 1549, n. 8.

The Court of Appeals affirmed, expressly rejecting the Fifth Circuit’s approach in Hawker and holding that §505 “can be read to comprehend unlawful conduct that occurred only prior to the filing of a lawsuit as well as unlawful conduct that continues into the present.” 791 F. 2d 804, 309 (CA4 1986). The Court of Appeals concluded that its reading of §505 was consistent with the Act’s structure, legislative history, and purpose. Although it observed that “[a] very sound argument can be made that [respondents’] allegations of continuing violations were made in good faith,” the Court of Appeals declined to rule on the District Court’s alternative holding, finding it unnecessary to the disposition of the case. Id., at 308, n. 9.

Subsequent to the issuance of the Fourth Circuit’s opinion, the First Circuit also had occasion to construe § 505. It took a position different from that of either the Fourth or the Fifth Circuit, holding that jurisdiction lies under § 505 when “the citizen-plaintiff fairly alleges a continuing likelihood that the defendant, if not enjoined, will again proceed to violate the Act.” Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F. 2d 1089, 1094 (1986). The First Circuit’s approach precludes suit based on wholly past violations, but permits suit when there is a pattern of intermittent violations, even if there is no violation at the moment suit is filed. We granted certiorari to resolve this three-way conflict in the Circuits. 479 U. S. 1029 (1987). We now vacate the Fourth Circuit’s opinion and remand the case.

I — I 1 — I

A

It is well settled that “the starting point for interpreting a statute is the language of the statute itself.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). The Court of Appeals concluded that the “to be in violation” language of § 505 is ambiguous, whereas petitioner asserts that it plainly precludes the construction adopted below. We must agree with the Court of Appeals that § 505 is not a provision in which Congress’ limpid prose puts an end to all dispute. But to acknowledge ambiguity is not to conclude that all interpretations are equally plausible. The most natural reading of “to be in violation” is a requirement that citizen-plaintiffs allege a state of either continuous or intermittent violation — that is, a reasonable likelihood that a past polluter will continue to pollute in the future. Congress could have phrased its requirement in language that looked to the past (“to have violated”), but it did not choose this readily available option.

Respondents urge that the choice of the phrase “to be in violation,” rather than phrasing more clearly directed to the past, is a “careless accident,” the result of a “debatable lapse of syntactical precision.” Brief for Respondents 8. But the prospective orientation of that phrase could not have escaped Congress’ attention. Congress used identical language in the citizen suit provisions of several other environmental statutes that authorize only prospective relief. See, e. g., Clean Air Act, 42 U. S. C. §7604; Resource Conservation and Recovery Act of 1976, 42 U. S. C. § 6972 (1982 ed. and Supp. III); Toxic Substances Control Act, 15 U. S. C. § 2619 (1982 ed. and Supp. IV). Moreover, Congress has demonstrated in yet other statutory provisions that it knows how to avoid this prospective implication by using language that explicitly targets wholly past violations.

Respondents seek to counter this reasoning by observing that Congress also used the phrase “is in violation” in § 309(a) of the Act, which authorizes the Administrator of EPA to issue compliance orders. 33 U. S. C. § 1319(a). That language is incorporated by reference in § 309(b), which authorizes the Administrator to bring civil enforcement actions. § 1319(b). Because it is little questioned that the Administrator may bring enforcement actions to recover civil penalties for wholly past violations, respondents contend, the parallel language of § 309(a) and § 505(a) must mean that citizens, too, may maintain such actions.

Although this argument has some initial plausibility, it cannot withstand close scrutiny and comparison of the two statutory provisions. The Administrator’s ability to seek civil penalties is not discussed in either § 309(a) or § 309(b); civil penalties are not mentioned until § 309(d), which does not contain the “is in violation” language. 33 U. S. C. § 1319(d). This Court recently has recognized that § 309(d) constitutes a separate grant of enforcement authority:

“Section 1319 [§ 309] does not intertwine equitable relief with the imposition of civil penalties. Instead each kind of relief is separably authorized in a separate and distinct statutory provision. Subsection (b), providing injunctive relief, is independent of subsection (d), which provides only for civil penalties.” Tull v. United States, 481 U. S. 412, 425 (1987).

In contrast, § 505 of the Act does not authorize civil penalties separately from injunctive relief; rather, the two forms of relief are referred to in the same subsection, even in the same sentence. 33 U. S. C. § 1365(a). The citizen suit provision suggests a connection between injunctive relief and civil penalties that is noticeably absent from the provision authorizing agency enforcement. A comparison of § 309 and § 505 thus supports rather than refutes our conclusion that citizens, unlike the Administrator, may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation.

B

Our reading of the “to be in violation” language of § 505(a) is bolstered by the language and structure of the rest of the citizen suit provisions in § 505 of the Act. These provisions together make plain that the interest of the citizen-plaintiff is primarily forward-looking.

One of the most striking indicia of the prospective orientation of the citizen suit is the pervasive use of the present tense throughout § 505. A citizen suit may be brought only for violation of a permit limitation “which is in effect” under the Act. 33 U. S. C. § 1365(f). Citizen-plaintiffs must give notice to the alleged violator, the Administrator of EPA, and the State in which the alleged violation “occurs.” § 1365(b)(1)(A). A Governor of a State may sue as a citizen when the Administrator fails to enforce an effluent limitation “the violation of which is occurring in another State and is causing an adverse effect on the public health or welfare in his State.” § 1365(h). The most telling use of the present tense is in the definition of “citizen” as “a person . . . having an interest which is or may be adversely affected” by the defendant’s violations of the Act. § 1365(g). This definition makes plain what the undeviating use of the present tense strongly suggests: the harm sought to be addressed by the citizen suit lies in the present or the future, not in the past.

Any other conclusion would render incomprehensible § 505’s notice provision, which requires citizens to give 60 days’ notice of their intent to sue to the alleged violator as well as to the Administrator and the State. § 1365(b)(1)(A). If the Administrator or the State commences enforcement action within that 60-day period, the citizen suit is barred, presumably because governmental action has rendered it unnecessary. § 1365(b)(1)(B). It follows logically that the purpose of notice to the alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit. If we assume, as respondents urge, that citizen suits may target wholly past violations, the requirement of notice to the alleged violator becomes gratuitous. Indeed, respondents, in propounding their interpretation of the Act, can think of no reason for Congress to require such notice other than that “it seemed right” to inform an alleged violator that it was about to be sued. Brief for Respondents 14.

Adopting respondents’ interpretation of §505’s jurisdictional grant would create a second and even more disturbing anomaly. The bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action. The legislative history of the Act reinforces this view of the role of the citizen suit. The Senate Report noted that “[t]he Committee intends the great volume of enforcement actions [to] be brought by the State,” and that citizen suits are proper only “if the Federal, State, and local agencies fail to exercise their enforcement responsibility.” S. Rep. No. 92-414, p. 64 (1971), reprinted in 2 A Legislative History of the Water Pollution Control Act Amendments of 1972, p. 1482 (1973) (hereinafter Leg. Hist.). Permitting citizen suits for wholly past violations of the Act could undermine the supplementary role envisioned for the citizen suit. This danger is best illustrated by an example. Suppose that the Administrator identified a violator of the Act and issued a compliance order under § 309(a). Suppose further that the Administrator agreed not to assess or otherwise seek civil penalties on the condition that the violator take some extreme corrective action, such as to install particularly effective but expensive machinery, that it otherwise would not be obliged to take. If citizens could file suit, months or years later, in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator’s discretion to enforce the Act in the public interest would be curtailed considerably. The same might be said of the discretion of state enforcement authorities. Respondents’ interpretation of the scope of the citizen suit would change the nature of the citizens’ role from interstitial to potentially intrusive. We cannot agree that Congress intended such a result.

C

The legislative history of the Act provides additional support for our reading of §505. Members of Congress frequently characterized the citizen suit provisions as “abatement” provisions or as injunctive measures. See, e. g., Water Pollution Control Legislation, Hearings before the Subcommittee on Air and Water Pollution of the Senate Committee on Public Works, 92d Cong., 1st Sess., pt. 1, p. 114 (1971) (staff analysis of S. 523) (“Any person may sue a polluter to abate a violation . . .”); id., pt. 2, at 707 (Sen. Eagleton) (“Citizen suits . . . are brought for the purpose of abating pollution”); H. R. Rep. No. 92-911, p. 407 (1972), 1 Leg. Hist. 876 (additional views of Reps. Abzug and Rangel) (“[C]itizens may institute suits against polluters for the purpose of halting that pollution”); 118 Cong. Rec. 33693 (1972), 1 Leg. Hist. 163 (Sen. Muskie) (“Citizen suits can be brought to enforce against both continuous and intermittent violations”); id., at 33717, 1 Leg. Hist. 221 (Sen. Bayh) (“These sorts of citizen suits — in which a citizen can obtain an injunction but cannot obtain money damages for himself — are a very useful additional tool in enforcing environmental protection laws”).

Moreover, both the Senate and House Reports explicitly connected § 505 to the citizen suit provisions authorized by the Clean Air Act, which are wholly injunctive in nature. See S. Rep. No. 92-414, supra, at 79, 2 Leg. Hist. 1497 (Citizen participation under the Clean Water Act is “modeled on the provision enacted in the Clean Air Amendments of 1970”); H. R. Rep. No. 92-911, supra, at 133, 1 Leg. Hist. 820 (“Section 505 closely follows the concepts utilized in section 304 of the Clean Air Act”). Congress’ acknowledgment of this connection suggests that the identity of the “alleged to be in violation” language of the citizen suit provisions of the two Acts is not accidental; rather, the two provisions share the common central purpose of permitting citizens to abate pollution when the government cannot or will not command compliance. This understanding of the “alleged to be in violation” language as a statutory term of art rather than a mere stylistic infelicity is reinforced by the consistent adherence in the Senate and House Reports to the precise statutory formulation. See, e. g., S. Conf. Rep. No. 92-1236, p. 145 (1972), 1 Leg. Hist. 328; H. R. Rep. No. 92-911, supra, at 133, 1 Leg. Hist. 820; S. Rep. No. 92-414, supra, at 79, 2 Leg. Hist. 1497.

Respondents make much of the fact that Senator Muskie, one of the principal authors and sponsors of the bill, deviated from this formulation at one point, expressing the view that “a citizen has a right under section 505 to bring an action for an appropriate remedy in the case of any person who is alleged to be, or to have been, in violation.” 118 Cong. Rec. 33700 (1972), 1 Leg. Hist. 179 (emphasis added). When viewed in context, however, Senator Muskie’s statement does not support respondents’ contention that § 505 authorizes citizen suits for wholly past violations. The full context of the Senator’s remarks is as follows:

“This 60-day [notice] provision was not intended, however, to cut off the right of action a citizen may have [with respect] to violations that took place 60 days earlier but which may not have been continuous. As in the original Senate bill, a citizen has a right under section 505 to bring an action for an approprate remedy in the case of any person who is alleged to be, or to have been, in violation, whether the violation be a continuous one, or an occasional or sporadic one.” Ibid.

The surrounding text strongly suggests that Senator Muskie used the past tense in order to make clear that an intermittent polluter — -one who violates permit limitations one month out of every three — is just as much “in violation” of the Act as a continuous violator. His reference to “occasional or sporadic” violations cannot fairly be read to include “wholly past” violations, as respondents contend. Our understanding of Senator Muskie’s written remarks is supported by the Senator’s oral summary of his written views for his colleagues. In summarizing, Senator Muskie stated merely that “[c]itizen suits can be brought to enforce against both continuous and intermittent violations.” Id., at 33693, 1 Leg. Hist. 163. Noticeably lacking here, too, is any reference to wholly past violations. Senator Muskie’s remarks cannot bear the weight that respondents place on them.

I — I HH l — I

Our conclusion that § 505 does not permit citizen suits for wholly past violations does not necessarily dispose of this lawsuit, as both lower courts recognized. The District Court found persuasive the fact that “[respondents’] allegation in the complaint, that Gwaltney was continuing to violate its NPDES permit when plaintiffs filed suit[,] appears to have been made fully in good faith.” 611 F. Supp., at 1549, n. 8. On this basis, the District Court explicitly held, albeit in a footnote, that “even if Gwaltney were correct that a district court has no jurisdiction over citizen suits based entirely on unlawful conduct that occurred entirely in the past, the Court would still have jurisdiction here.” Ibid. The Court of Appeals acknowledged, also in a footnote, that “[a] very sound argument can be made that [respondents’] allegations of continuing violations were made in good faith,” 791 F. 2d, at 308, n. 9, but expressly declined to rule on this alternative holding. Because we agree that § 505 confers jurisdiction over citizen suits when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation, we remand the case to the Court of Appeals for further consideration.

Petitioner argues that citizen-plaintiffs must prove their allegations of ongoing noncompliance before jurisdiction attaches under § 505. Brief for Petitioner 37-43. We cannot agree. The statute does not require that a defendant “be in violation” of the Act at the commencement of suit; rather, the statute requires that a defendant be “alleged to be in violation.” Petitioner’s construction of the Act reads the word “alleged” out of §505. As petitioner itself is quick to note in other contexts, there is no reason to believe that Congress’ drafting of §505 was sloppy or haphazard. We agree with the Solicitor General that “Congress’s use of the phrase ‘alleged to be in violation’ reflects a conscious sensitivity to the practical difficulties of detecting and proving chronic episodic violations of environmental standards.” Brief for United States as Amicus Curiae 18. Our acknowledgment that Congress intended a good-faith allegation to suffice for jurisdictional purposes, however, does not give litigants license to flood the courts with suits premised on baseless allegations. Rule 11 of the Federal Rules of Civil Procedure, which requires pleadings to be based on a good-faith belief, formed after reasonable inquiry, that they are “well grounded in fact,” adequately protects defendants from frivolous allegations.

Petitioner contends that failure to require proof of allegations under § 505 would permit plaintiffs whose allegations of ongoing violation are reasonable but untrue to maintain suit in federal court even though they lack constitutional standing. Petitioner reasons that if a defendant is in complete compliance with the Act at the time of suit, plaintiffs have suffered no injury remediable by the citizen suit provisions of the Act. Petitioner, however, fails to recognize that our standing cases uniformly recognize that allegations of injury are sufficient to invoke the jurisdiction of a court. In Warth v. Seldin, 422 U. S. 490, 501 (1975), for example, we made clear that a suit will not be dismissed for lack of standing if there are sufficient “allegations of fact” — not proof — in the complaint or supporting affidavits. This is not to say, however, that such allegations may not be challenged. In United States v. SCRAP, 412 U. S. 669, 689 (1973), we noted that if the plaintiffs’ “allegations [of standing] were in fact untrue, then the [defendants] should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact.” If the defendant fails to make such a showing after the plaintiff offers evidence to support the allegation, the case proceeds to trial on the merits, where the plaintiff must prove the allegations in order to prevail. But the Constitution does not require that the plaintiff offer this proof as a threshold matter in order to invoke the District Court’s jurisdiction.

Petitioner also worries that our construction of § 505 would permit citizen-plaintiffs, if their allegations of ongoing noncompliance become false at some later point in the litigation because the defendant begins to comply with the Act, to continue nonetheless to press their suit to conclusion. According to petitioner, such a result would contravene both the prospective purpose of the citizen suit provisions and the “case or controversy” requirement of Article III. Longstanding principles of mootness, however, prevent the maintenance of suit when “ 'there is no reasonable expectation that the wrong will be repeated.’” United States v. W. T. Grant Co., 345 U. S. 629, 633 (1953) (quoting United States v. Aluminum Co. of America, 148 F. 2d 416, 448 (CA2 1945)). In seeking to have a case dismissed as moot, however, the defendant’s burden “is a heavy one.” 345 U. S., at 633. The defendant must demonstrate that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (emphasis added). Mootness doctrine thus protects defendants from the maintenance of suit under the Clean Water Act based solely on violations wholly unconnected to any present or future wrongdoing, while it also protects plaintiffs from defendants who seek to evade sanction by predictable “protestations of repentance and reform.” United States v. Oregon State Medical Society, 343 U. S. 326, 333 (1952).

Because the court below erroneously concluded that respondents could maintain an action based on wholly past violations of the Act, it declined to decide whether respondents’ complaint contained a good-faith allegation of ongoing violation by petitioner. We therefore remand the case for consideration of this question. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

with whom Justice Stevens and Justice O’Connor join, concurring in part and concurring in the judgment.

I join Parts I and II of the Court’s opinion. I cannot join Part III because I believe it misreads the statute to create a peculiar new form of subject-matter jurisdiction.

h-H

The Court concludes that subject-matter jurisdiction exists under § 505 if there is a good-faith allegation that the defendant is “in violation.” Thereafter, according to the Court’s interpretation, the plaintiff can never be called on to prove that jurisdictional allegation. Ante, at 65. This creates a regime that is not only extraordinary, but to my knowledge unique. I can think of no other context in which, in order to carry a lawsuit to judgment, allegations are necessary but proof of those allegations (if they are contested) is not. The Court thinks it necessary to find that Congress produced this jurisprudential anomaly because any other conclusion, in its view, would read the word “alleged” out of § 505. It seems to me that, quite to the contrary, it is the Court’s interpretation that ignores the words of the statute.

Section 505(a) states that “any citizen may commence a civil action on his own behalf. . . against any person . . . who is alleged to be in violation ...” (emphasis added). There is of course nothing unusual in the proposition that only an allegation is required to commence a lawsuit. Proof is never required, and could not practicably be required, at that stage. From this clear and unexceptionable language of the statute, one of two further inferences can be made: (1) The inference the Court chooses, that the requirement for commencing a suit is the same as the requirement for maintaining it, or (2) the inference that, in order to maintain a suit the allegations that are required to commence it must, if contested, be proved. It seems to me that to favor the first inference over the second is to prefer the eccentric to the routine. It is well ingrained in the law that subject-matter jurisdiction can be called into question either by challenging the sufficiency of the allegation or by challenging the accuracy of the jurisdictional facts alleged. See, e. g., Land v. Dollar, 330 U. S. 731, 735, n. 4 (1947); Thomson v. Gaskill, 315 U. S. 442, 446 (1942); KVOS, Inc. v. Associated Press, 299 U. S. 269, 278 (1936); McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 189 (1936). Had Congress intended us to eliminate the second form of challenge, and to create an extraordinary regime in which the jurisdictional fact consists of a good-faith belief, it seems to me it would have delivered those instructions in more clear fashion than merely specifying how a lawsuit can be commenced.

In my view, therefore, the issue to be resolved by the Court of Appeals on remand of this suit is not whether the allegation of a continuing violation on the day suit was brought was made in good faith after reasonable inquiry, but whether petitioner was in fact “in violation” on the date suit was brought. The phrase in § 505(a), “to be in violation,” unlike the phrase “to be violating” or “to have committed a violation,” suggests a state rather than an act — the opposite of a state of compliance. A good or lucky day is not a state of compliance. Nor is the dubious state in which a past effluent problem is not recurring at the moment but the cause of that problem has not been completely and clearly eradicated. When a company has violated an effluent standard or limitation, it remains, for purposes of § 505(a), “in violation” of that standard or limitation so long as it has not put in place remedial measures that clearly eliminate the cause of the violation. It does not suffice to defeat subject-matter jurisdiction that the success of the attempted remedies becomes clear months or even weeks after the suit is filed. Subject-matter jurisdiction “depends on the state of things at the time of the action brought”; if it existed when the suit was brought, “subsequent events” cannot “ous[t]” the court of jurisdiction. Mollan v. Torrance, 9 Wheat. 537, 539 (1824); see, e. g., Smith v. Sperling, 354 U. S. 91, 93, n. 1 (1957); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 289-290 (1938). It is this requirement of clarity of cure for a past violation, contained in the phrase “to be in violation,” rather than a novel theory of subject-matter jurisdiction by good-faith allegation, that meets the Court’s concern for “‘the practical difficulties of detecting and proving chronic episodic violations,’ ” ante, at 65, quoting Brief for United States as Amicus Curiae 18.

Thus, I think the question on remand should be whether petitioner had taken remedial steps that had clearly achieved the effect of curing all past violations by the time suit was brought. I cannot claim that the Court’s standard and mine would differ greatly in their practical application. They would, for example, almost certainly produce identical results in this lawsuit. See 611 F. Supp. 1542, 1549, n. 8 (ED Va. 1985) (District Court, in stating that allegation of continuing violation was in good faith, relied entirely on post-complaint uncertainty as to whether cause of TKN violation was cured). This practical insignificance, however, makes all the more puzzling the Court’s willingness to impute to Congress creation of an unprecedented scheme where that which must be alleged need not be proved.

1 — 1 H-f

Even if the Court were correct that no evidence of a state of noncompliance has to be produced to survive a motion for dismissal on grounds of subject-matter jurisdiction, such evidence would still be required in order to establish the plaintiff’s standing. While Gwaltney did not seek certiorari (or even appeal to the Court of Appeals) on the denial of its motion to dismiss for lack of standing, it did raise the standing issue before us here, see Reply Brief for Petitioner 17-18, and we in any event have an independent obligation to inquire into standing where it is doubtful, see Bender v. Williamsport Area School Dist., 475 U. S. 534, 541 (1986). If it is undisputed that the defendant was in a state of compliance when this suit was filed, the plaintiffs would have been suffering no remediable injury in fact that could support suit. The constitutional requirement for such injury is reflected in the statute itself, which defines “citizen” as one who has “an interest which is or may be adversely affected.” 33 U. S. C. § 1365(g). See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 16 (1981).

Accordingly, even on the Court’s theory of this case it seems to me that the remand should require the lower court to consider not just good-faith allegation of a state of violation but its actual existence. To be sure, nothing in the Court’s opinion precludes such consideration of standing, but under sound practice the remand should require it. See, e. g., Havens Realty Corp. v. Coleman, 455 U. S. 363, 378 (1982); Combs v. United States, 408 U. S. 224, 227-228 (1972) (per curiam). Of course that disposition would call attention to the fact that we have interpreted the statute to confer subject-matter jurisdiction over a class of cases in which, by the terms of the statute itself, there cannot possibly be standing to sue.

       In its entirety, § 505(a), as codified, 33 U. S. C. § 1365(a), provides:
      “Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf—
      “(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
      “(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 enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the ease may be, and to apply any appropriate civil penalties under section 1319(d) of this title.”

       For example, the Solid Waste Disposal Act was amended in 1984 to authorize citizen suits against any “past or present” generator, transporter, owner, or operator of a treatment, storage, or disposal facility “who has contributed or who is contributing” to the “past or present” handling, storage, treatment, transportation, or disposal of certain hazardous wastes. 42 U. S. C. § 6972(a)(1)(B) (1982 ed., Supp. III). Prior to 1984, the Solid Waste Disposal Act contained language identical to that of § 505(a) of the Clean Water Act, authorizing citizen suits against any person “alleged to be in violation” of waste disposal permits or standards. 42 U. S. C. § 6972(a)(1). Even more on point, the most recent Clean Water Act amendments permit EPA to assess administrative penalties without judicial process on any person who “has violated” the provisions of the Act. Water Quality Act of 1987, § 314, Pub. L. 100-4, 101 Stat. 46.

       The notice provisions specifically provide that citizen suits are barred only if the Administrator or State has commenced an action “io require compliance.” 33 U. S. C. § 1365(b)(1)(B) (emphasis added). This language supports our conclusion that the precluded citizen suit is also an action for compliance, rather than an action solely for civil penalties for past, nonrecurring violations.

       Respondents also seek to rely on the legislative history of the 1987 amendments to the Act, which, inter alia, gave the Administrator authority to assess civil penalties for past violations without judicial enforcement proceedings. Water Quality Act of 1987, § 314, Pub. L. 100-4, 101 Stat. 46. Respondents point to provisions in the 1987 Act and statements in its legislative history to the effect that an administrative penalty action for violation of one effluent limitation does not bar a citizen suit for a past violation of another effluent limitation, even if the two violations resulted from the same discharge. Brief for Respondents 17-18, and n. 11. Respondents contend that this evidence demonstrates that the 99th Congress viewed the Act as permitting citizen suits for wholly past violations. The conclusions of the 99th Congress, however, are hardly probative of the intent of the 92d Congress. See Rainwater v. United States, 356 U. S. 590, 593 (1958). Moreover, the provisions and legislative history of the 1987 Act support arguments that cut against respondents as well. The fact that Congress consciously chose the past tense to describe the Administrator’s new authority to assess civil penalties suggests that Congress knows how to target past violations when it wants to do so. See n. 2, swpra. The legislative history demonstrates that the Senate and House bills were in conflict on whether to adopt the present or past tense, compare H. R. Rep. No. 99-189, p. 89 (1985), with S. Rep. No. 99-50, pp. 26, 100 (1985), and the Act reflects that Congress chose to adopt the past tense from the Senate bill.

       See also Warth v. Seldin, 422 U. S., at 501 (“Art. Ill’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself . . .”) (emphasis added); Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973) (“[W]e have steadfastly adhered to the requirement that. . . federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction”) (footnotes omitted; emphasis added); Baker v. Carr, 369 U. S. 186, 204 (1962) (“Have the [plaintiffs] alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?”) (emphasis added).

       Under the Act, plaintiffs are also protected from the suddenly repentant defendant by the authority of the district courts to award litigation costs “whenever the court determines such award is appropriate.” 33 U. S. C. § 1365(d). The legislative history of this provision states explicitly that the award of costs “should extend to plaintiffs in actions which result in successful abatement but do not reach a verdict. For instance, if as a result of a citizen proceeding and before a verdict is issued, a defendant abated a violation, the court may award litigation expenses borne by the plaintiffs in prosecuting such actions.” S. Rep. No. 92-414, p. 81 (1971), 2 Leg. Hist. 1499.


source: Caselaw Access Project

author: Justice O’Connor Justice White,

license: Public Domain

text:
    KARCHER, SPEAKER OF THE NEW JERSEY GENERAL ASSEMBLY, et al. v. MAY et al.
    No. 85-1551.
    Argued October 6, 1987
    Decided December 1, 1987

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, Stevens, and Scalia, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 83.

      Rex E. Lee argued the cause for appellants. With him on the briefs were William W. Robertson, Dean A. Gaver, Robert P. Zoller, and Carter G. Phillips.

      Norman L. Cantor argued the cause for appellees. With him on the briefs were Richard M. Altman, John A. Powell, and Eric Neis ser.

      Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, Andrew J. Pincus, David K. Flynn, and Dennis J. Dimsey; for the State of Connecticut et al. by Joseph I. Lieberman, Attorney General of Connecticut, Barney Lapp, Henry S. Cohn, and Carl J. Schuman, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, Charles M. Oberly III of Delaware,
        Linley E. Pearson of Indiana, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Brian McKay of Nevada, and Hal Stratton of New Mexico; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Rutherford Institute et al. by John W. Whitehead, David E. Morris, Alfred J. Lindh, Ira W. Still III, William B. Hollberg, Randall A. Pentiuk, Thomas W. Strahan, John F. Southworth, Jr., and W. Charles Bundren; and for Ronald Sokalski et al. by Rex E. Lee, Carter G. Phillips, Richard G. Wilkins, Michael J. Woodruff, and Samuel E. Ericsson.

      Briefs of amici curiae urging affirmance were filed for the American Association of School Administrators by David S. Tatel, Walter A. Smith, Jr., and Elizabeth B. Heffeman; for the American Jewish Congress et al. by Sheldon H. Elsen and Clement J. Coined; for Americans United for Separation of Church and State et al. by Lee Boothby and James M. Parker; for the Anti-Defamation League of B’nai B’rith et al. by Ruti G. Teitel, Justin J. Finger, Meyer Eisenberg, Jeffrey P. Sinensky, and Steven M. Freeman; for the New Jersey Council of Churches et al. by Donald L. Drakeman; and for the New Jersey Education Association by James R. Zazzali and Kenneth I. Nowak.

   Justice O’Connor

delivered the opinion of the Court.

Alan J. Karcher and Carmen A. Orechio, the former presiding officers of the New Jersey Legislature, seek to appeal a judgment declaring a New Jersey statute unconstitutional. Their appeal presents the question whether public officials who have participated in a lawsuit solely in their official capacities may appeal an adverse judgment after they have left office. We hold that they may not.

I

In December 1982 the New Jersey Legislature enacted, over the Governor’s veto, a statute requiring the State’s primary and secondary public school educators to permit their students to observe a minute of silence before the start of each schoolday. The statute reads as follows:

“Principals and teachers in each public elementary and secondary school of each school district in this State shall permit students to observe a 1 minute period of silence to be used solely at the discretion of the individual student, before the opening exercises of each school day for quiet and private contemplation or introspection. ” N. J. Stat. Ann. § 18A:36-4 (West Supp. 1987).

The New Jersey Attorney General immediately announced that he would not defend the statute if it were challenged. The statute became effective December 17,1982, and within a month appellees — a New Jersey public school teacher, several public school students, and parents of public school students— challenged its constitutionality in federal court. Appellees sued under 42 U. S. C. § 1983, alleging that the statute violated the Establishment Clause of the First Amendment and seeking both declaratory and injunctive relief. They named as defendants the New Jersey Department of Education, its Commissioner, and two township boards of education.

When it became apparent that neither the Attorney General nor the named defendants would defend the statute, Karcher and Orechio, as Speaker of the New Jersey General Assembly and President of the New Jersey Senate, respectively, sought and obtained permission to intervene as defendants on behalf of the legislature. Appellees entered into a stipulation dismissing the suit against the named defendants, but the District Court refused to accept the stipulation out of concern for the effect it might have on the jurisdictional posture of the case. The legislature, through its presiding officers, carried the entire burden of defending the statute.

After a 5-day trial, the District Court declared the New Jersey statute unconstitutional. Applying the test set out in Lemon v. Kurtzman, 403 U. S. 602 (1971), the court held that the statute violated the Establishment Clause of the First Amendment because its purpose was religious rather than secular, because it both advanced and inhibited religion, and because it fostered excessive government entanglement with religion. May v. Cooperman, 572 F. Supp. 1561 (NJ 1983).

Karcher and Orechio appealed from the District Court’s judgment in their official capacities as Speaker of the New Jersey General Assembly and President of the New Jersey Senate. The named defendants filed letters with the Court of Appeals stating that they would not participate in the appeal, except to the extent necessary to protect themselves from having to pay attorney’s fees.

The Court of Appeals affirmed the District Court’s declaratory judgment by a divided vote. The majority held that the statute did not promote or inhibit religion and would not foster excessive entanglement between government and religion, but affirmed the District Court’s conclusion that the statute violated the Establishment Clause for lack of a valid secular purpose. The dissent concluded that the evidence was not sufficient to prove the absence of a secular legislative purpose. The Court of Appeals entered its judgment of affirmance on December 24, 1985. May v. Cooperman, 780 F. 2d 240 (CA3 1985).

On January 14, 1986, Karcher and Orechio lost their posts as presiding legislative officers. Charles Hardwick replaced Karcher as Speaker of the New Jersey General Assembly. John Russo succeeded Orechio as President of the New Jersey Senate.

A March 19, 1986, notice appealing the judgment of the Court of Appeals to this Court was filed on behalf of “Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio, as President of the New Jersey Senate and the New Jersey Senate.” App. to Juris. Statement 106a-107a. By letter dated May 6, 1986, appellants’ counsel informed us that Senate President Russo and General Assembly Speaker Hardwick were withdrawing the legislature’s appeal, but that Karcher desired to continue the appeal. App. to Motion to Dismiss or Affirm la-3a. Appellees moved to dismiss the appeal on the ground that the legislature’s withdrawal left the Court without a case or controversy. We postponed consideration of the jurisdictional question to the hearing of the case on the merits. 479 U. S. 1062 (1987). We now dismiss the appeal for want of jurisdiction.

II

The power of federal courts to hear and decide cases is defined by Article III of the Constitution and by the federal statutes enacted thereunder. Karcher and Orechio seek to invoke this Court’s jurisdiction under 28 U. S. C. § 1254(2). That statute empowers us to review cases upon “appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States.” One who is not an original party to a lawsuit may of course become a party by intervention, substitution, or third-party practice. 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 203.06 pp. 3-20 (1987). But we have consistently applied the general rule that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom. United States ex rel. Louisiana v. Jack, 244 U. S. 397, 402 (1917); Ex parte Leaf Tobacco Board of Trade, 222 U. S. 578, 581 (1911); Ex parte Cockcroft, 104 U. S. 578, 579 (1882); Ex parte Cutting, 94 U. S. 14, 20-21 (1877).

Karcher and Orechio intervened in this lawsuit in their official capacities as presiding officers on behalf of the New Jersey Legislature. They do not appeal the judgment in those capacities. Indeed, they could not, for they no longer hold those offices. The authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office. Davis v. Preston, 280 U. S. 406, 407 (1930). Federal Rule of Appellate Procedure 43(e)(1) provides that “[w]hen a public officer is a party to an appeal or other proceeding in the court of appeals in an official capacity and during its pendency . . . ceases to hold office, the action does not abate and the public officer’s successor is automatically substituted as a party.” The current presiding officers have informed us that the New Jersey Legislature is not an appellant in this case.

Having lost their official status as presiding legislative officers, Karcher and Orechio now seek to appeal in their capacities as individual legislators and as representatives of the majority of the 200th New Jersey Legislature, the now-expired legislative body that enacted the minute of silence statute. They do not seek leave to intervene in those capacities. Rather, they assert, for the first time in their briefs to this Court, that they originally intervened and ligitated the lawsuit in those roles.

The fact that Karcher and Orechio participated in this litigation in their official capacities as presiding officers on behalf of the legislature does not mean that they became parties in all of their personal and professional capacities. In Bender v. Williamsport Area School District, 475 U. S. 534 (1986), we observed that “[a]cts performed by the same person in two different capacities ‘are generally treated as the transactions of two different legal personages.’ ” Id., at 543, n. 6, quoting F. James & G. Hazard, Civil Procedure § 11.6, p. 594 (3d ed. 1985). The concept of “legal personage” is a practical means of identifying the real interests at stake in a lawsuit. We have repeatedly recognized that the real party in interest in an official-capacity suit is the entity represented and not the individual officeholder. See Bender, supra, at 543-544; Kentucky v. Graham, 473 U. S. 159, 166 (1985); Brandon v. Holt, 469 U. S. 464, 471 (1985). We therefore agree with the Solicitor General’s view that Karcher and Orechio’s intervention as presiding legislative officers does not entitle them to appeal in their other individual and professional capacities. Brief for United States as Amicus Curiae 10-11. Karcher and Orechio may not appeal the Court of Appeals’ judgment as individual legislators or as representatives of the 200th Legislature unless the record shows that they participated in those capacities below.

The course of proceedings in this case from the District Court to this Court make it clear that the only party-intervenor in this case was the incumbent New Jersey Legislature. At the District Court hearing on their oral motion to intervene, Karcher and Orechio represented to both the court and their opponents that they were intervening on behalf of the legislature and not as individual legislators. The District Court permitted Karcher and Orechio to intervene as party-defendants only in their representative capacities as presiding legislative officers. The intervention order provided:

“Alan J. Karcher in his representative capacity as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate; be permitted to intervene as direct party defendants.” App. 53-54.

The District Court’s opinion on the merits identifies the defendant-intervenors as “the New Jersey Assembly and New Jersey Senate.” May v. Cooperman, 572 F. Supp., at 1563. In its separate opinion on attorney’s fees, the District Court emphasizes that it gave the legislature leave to intervene to represent the interests of the State:

“The Legislature itself, through the Speaker of the General Assembly and the President of the Senate, moved to intervene in the case. The Legislature was permitted to intervene because it was responsible for enacting the statute and because no other party defendant was willing to defend the statute. The Legislature sought to perform a task which normally falls to the executive branch, but which, in this case, the executive branch refused to perform.” Record, Doc. No. 60, p. 20.

The record in the Court of Appeals similarly identifies the appellant-intervenor as the New Jersey Legislature. The notice of appeal was filed by “Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio as President of the New Jersey Senate and the New Jersey Senate, DefendantsIntervenors.” Record, Doc. No. 64. The Court of Appeals’ opinion identifies the appellants as “the New Jersey Senate and Assembly.” 780 F. 2d, at 241.

The notice of appeal to this Court identifies the appellants as “Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio, as President of the New Jersey Senate and the New Jersey Senate.” App. to Juris. Statement 106a-107a. Even the jurisdictional statement refers to the appellants as “the Legislature.” Juris. Statement 5-6. Though appellants assert in their brief that Karcher and Orechio as individual legislators were proper parties in the District Court and the Court of Appeals, our review of the record satisfies us that Karcher and Orechio have neither formally sought, nor in any sense been granted, permission to participate in this lawsuit as individual legislators.

We think it is also clear from the record that the partyintervenor at each point in the proceedings below was the incumbent legislature, on behalf of the State, and not the particular legislative body that enacted the minute of silence law. Nowhere in the record did Karcher and Orechio assert that they represented the 200th Legislature and no other.

In sum, Karcher and Orechio participated in this lawsuit in their official capacities as presiding officers of the New Jersey Legislature, but since they no longer hold those offices, they lack authority to pursue this appeal on behalf of the legislature. Karcher and Orechio as individual legislators and as representatives of the 200th New Jersey Legislature are not “parties” entitled to appeal the Court of Appeals’ judgment under 28 U. S. C. §1254(2). Accordingly, we must dismiss their appeal for want of jurisdiction.

Ill

Karcher and Orechio argue that if we dismiss their appeal we must vacate the judgments below. They advance two theories in support of this result.

First they contend that the judgments below must be vacated because no proper party-defendant ever intervened in the case. This is so, they say, because New Jersey law does not authorize the presiding legislative officers to represent the New Jersey Legislature in litigation. Not only is this claim directly contrary to appellants’ explicit representations to the District Court, it appears to be wrong as a matter of New Jersey law. The New Jersey Supreme Court has granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment. In re Forsythe, 91 N. J. 141, 144, 450 A. 2d 499, 500 (1982). Since the New Jersey Legislature had authority under state law to represent the State’s interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant-appellant.

Appellants’ second theory for vacating the judgments below is based upon our practice of vacating lower court judgments when a case becomes moot on appeal. See Burke v. Barnes, 479 U. S. 361, 365 (1987); United States Department of Treasury v. Galioto, 477 U. S. 556, 560 (1986); United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). In United States v. Munsingwear, we explained that when a case becomes moot in its journey through the federal courts we will reverse or vacate the “unreviewable” judgment below and remand with directions to dismiss. We reasoned that this procedure “clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance.” Id., at 40. Karcher and Orechio contend that the rationale underlying the Munsingwear procedure applies to this case, for it is the happenstance of their loss of official status that renders the judgment unreviewable.

We reject this argument because its underlying premise is wrong. This case did not become unreviewable when Karcher and Orechio left office. Rather, under Federal Rule of Appellate Procedure 43(c)(1), the authority of Karcher and Orechio to pursue the appeal on behalf of the legislature passed to their successors in office. The rules effectuating automatic substitution of public officers were specifically designed to prevent suits involving public officers from becoming moot due to personnel changes. See Advisory Committee Notes on 1961 Arndt, to Fed. Rule Civ. Proc. 25(d)(1), 28 U. S. C., pp. 568-569.

This controversy did not become moot due to circumstances unattributable to any of the parties. The controversy ended when the losing party — the New Jersey Legislature-declined to pursue its appeal. Accordingly, the Munsingwear procedure is inapplicable to this case. Because Karcher and Orechio are not parties to this case in the capacities under which they seek to appeal, their appeal must be dismissed for want of jurisdiction.

It is so ordered.

Justice White,

concurring in the judgment.

I do not disagree with the Court that Mr. Karcher and Mr. Orechio were made parties to this suit in their official capacities representing the New Jersey General Assembly and the New Jersey Senate; those two entities were also made parties. Neither official intervened in his individual capacity as a legislator, and neither sought to appear in that capacity in the Court of Appeals. In January 1986, after the Court of Appeals had decided the case but before any attempt was made to bring it here on appeal, Karcher and Orechio lost their official standing to represent the New Jersey Legislature. It is clear enough to me that they therefore lost their authority to appeal on behalf of the legislature and that their successors in office automatically became parties in their stead, pursuant to Federal Rule of Appellate Procedure 43(c) (1). If any appeal was to be had on behalf of the legislature as it then existed, the appeal was to be taken by the substituted parties, not by Kareher and Orechio. This would be the case even if under New Jersey law, legislative action would be required to authorize the successor officials to drop the appeal. The fact is that there never was a cognizable appeal by the incumbent New Jersey Legislature; an appeal on its behalf never reached this Court. Since Kareher and Orechio did not appeal the Court of Appeals’ judgment in their capacity as individual legislators, or as representatives of the defunct 200th New Jersey Legislature, I do not reach the question whether they would have had standing to maintain this appeal in one of those other capacities.

Last June, we denied a motion by parents and a schoolteacher to intervene as appellants in this Court. 483 U. S. 1017: Since our interest in this case was the validity of the moment-of-silence statute, it might appear that we could save this case and avoid wasting the time and attention we have given it by vacating our prior order, and granting the motion to intervene, which was filed by those seemingly with standing to defend the law. Cf. Mullaney v. Anderson, 342 U. S. 415 (1952). But if in reality we had no jurisdiction to entertain the appeal taken in this case, it is evident that the movants’ efforts to enter the case came too late.

It bears pointing out, however, that we have now acknowledged that the New Jersey Legislature and its authorized representative have the authority to defend the constitutionality of a statute attacked in federal court. Cf. Immigration and Naturalization Service v. Chadha, 462 U. S. 919, 940 (1983). Otherwise, there would never have been a valid appeal to the Court of Appeals, in which event, we would not leave standing the judgment of that court, as we now do.

It is also clear that because Kareher and Orechio did not seek to intervene as individual legislators in a nonrepresentative capacity, we again leave for another day the issue whether individual legislators have standing to intervene and defend legislation for which they voted. See Burke v. Barnes, 479 U. S. 361 (1987).

Since I agree with the majority that no proper appeal was taken from the judgment below, I concur in its judgment that the “appeal” before us should be dismissed for want of jurisdiction.

       “[INTERVENORS’ COUNSEL]: I am Lawrence Marinari for the General Assembly and Senate, the intervenors.
      “THE COURT: Who are you actually appearing for now?
      “[INTERVENORS’ COUNSEL]: I am appearing for both the presiding officers of the House and New Jersey Senate and New Jersey General Assembly.
      “As the presiding officers of both houses, they are empowered by the rules of both houses to represent the House in ligitation.
      “THE COURT: They are in a representative capacity?
      “[INTERVENORS’ COUNSEL]: That is correct.
      “[PLAINTIFFS’ COUNSEL]: I don’t thin[k] Messrs. Karcher and Orrechio [sic] are proper parties. I think it is the Legislature as a whole, separate entities.
      “[INTERVENORS’ COUNSEL]: The institution is coming in as an institution. I can’t come in for each of the 120 individuals directly. I have not polled each one of them.
      “THE COURT: So I will grant the motion for intervention for Mr. Karcher and Mr. Orrechio [sic] in their capacities as Speakers of the respective Houses.
      “[PLAINTIFFS’ COUNSEL]: I do think the General Assembly and Senate are proper parties and can be represented by Orrechio [sic] and Karcher, but those entities —
      “[INTERVENORS’ COUNSEL]: That is who I am representing. The order says Alan J. Karcher in representative capacity as Speaker of the New Jersey General Assembly, the New Jersey General Assembly and the same for the Senate and its body.” App. to Motion to Dismiss or Affirm 12a-21a.

       “THE COURT: You say there is a rule which provides the Speaker of each House—
      “[INTERVENORS’ COUNSEL]: It is the presiding officer of each House and in charge of all administrative duties, and from that we have been in numerous suits and have cooperated with counsel anytime they want a deposition. I don’t envision this to be a problem, your Honor.” App. to Motion to Dismiss or Affirm 16a-17a.


author: Justice Scalia

text:
    LANGLEY et ux. v. FEDERAL DEPOSIT INSURANCE CORPORATION
    No. 86-489.
    Argued October 14, 1987
    Decided December 1, 1987

      Scalia, J., delivered the opinion for a unanimous Court.

      William C. Shockey argued the cause and filed a brief for petitioners.

      Richard G. Taranto argued the cause for respondent. With him on the brief were Solicitor General Fried, Deputy

      Solictor General Wallace, John C. Murphy, Jr., and Ann S. DuRoss.

   Justice Scalia

delivered the opinion of the Court.

Petitioners W. T. and Maryanne Grimes Langley seek reversal of a decision by the United States Court of Appeals for the Fifth Circuit granting the Federal Deposit Insurance Corporation (FDIC) summary judgment on its claim for payment of a promissory note signed by petitioners. 792 F. 2d 541 (1986). The Fifth Circuit rejected petitioners’ contention that a defense of misrepresentation of existing facts is not barred by 12 U. S. C. § 1823(e) because such a representation is not an “agreement” under that section. We granted certiorari to resolve a conflict in the Courts of Appeals. 479 U. S. 1028 (1987). Compare Gunter v. Hutcheson, 674 F. 2d 862, 867 (CA11), cert. denied, 459 U. S. 826 (1982); FDIC v. Hatmaker, 756 F. 2d 34, 37 (CA6 1985) (dictum).

I

The Langleys purchased land in Pointe Coupee Parish, Louisiana, in 1980. To finance the purchase, they borrowed $450,000 from Planters Trust & Savings Bank of Opelousas, Louisiana, a bank insured by the FDIC. In consideration for the loan, they executed a note, a collateral mortgage, and personal guarantees. The note was renewed several times, the last renewal being in March 1982, for the principal amount of $468,124.41.

In October 1983, after the Langleys had failed to pay the first installment due on the last renewal of the note, Planters brought the present suit for principal and interest in a Louisiana state trial court. The Langleys removed the suit, on grounds of diversity, to the United States District Court for the Middle District of Louisiana, where it was consolidated with a suit by the Langleys seeking more than $5 million in damages from Planters and others. The Langleys alleged as one of the grounds of complaint in their own suit, and as a defense against Planters’ claim in the present suit, that the 1980 land purchase and the notes had been procured by misrepresentations. In particular, they alleged that the notes had been procured by the bank’s misrepresentations that the property conveyed in the land purchase consisted of 1,628.4 acres, when in fact it consisted of only 1,522, that the property included 400 mineral acres, when in fact it contained only 75, and that there were no outstanding mineral leases on the property, when in fact there were. No reference to these representations appears in the documents executed by the Langleys, in the bank’s records, or in the minutes of the bank’s board of directors or loan committee.

In April 1984, the FDIC conducted an examination of Planters during which it learned of the substance of the lawsuits with the Langleys, including the allegations of Planters’ misrepresentations. On May 18, 1984, the Commissioner of Financial Institutions for the State of Louisiana closed Planters because of its unsound condition and appointed the FDIC as receiver. The FDIC thereupon undertook the financing of a purchase and assumption transaction pursuant to 12 U. S. C. § 1823(c)(2), in which all the deposit liabilities and most of the assets of Planters were assumed by another FDIC-insured bank in the community. Because the amount of the liabilities greatly exceeded the value of the assets, the FDIC paid the assuming bank $36,992,000, in consideration for which the FDIC received, inter alia, the Langleys’ March 1982 note.

In October 1984, the FDIC was substituted as a plaintiff in this lawsuit, and moved for summary judgment on its claim. The District Court granted the motion, 615 F. Supp. 749 (WD La. 1985), and was sustained on appeal. The Fifth Circuit held that the word “agreement” in 12 U. S. C. § 1823(e) encompassed the kinds of material terms or warranties asserted by the Langleys in their misrepresentation defenses and, because the requirements of § 1823(e) were not met, those defenses were barred. 792 F. 2d, at 545-546. We granted the Langleys’ petition for certiorari on the issue whether, in an action brought by the FDIC in its corporate capacity for payment of a note, § 1823(e) bars the defense that the note was procured by fraud in the inducement even when the fraud did not take the form of an express promise.

II

The Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat. 889, as amended, 12 U. S. C. § 1823(e), provides:

“No agreement which tends to diminish or defeat the right, title or interest of the Corporation [FDIC] in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank.”

A

Petitioners’ principal contention is that the word “agreement” in the foregoing provision encompasses only an express promise to perform an act in the future. We do not agree.

As a matter of contractual analysis, the essence of petitioners’ defense against the note is that the bank made certain warranties regarding the land, the truthfulness of which was a condition to performance of their obligation to repay the loan. See 1 A. Corbin, Contracts §14, p. 31 (1963) (“[T]ruth [of the warranty] is a condition precedent to the duty of the other party”); accord, 5 S. Williston, Contracts § 673, pp. 168-171 (3d ed. 1961); J. Murray, Contracts § 136, pp. 275-276 (2d rev. ed. 1974). As used in commercial and contract law, the term “agreement” often has “a wider meaning than . . . promise,” Restatement (Second) of Contracts § 3, Comment a (1981), and embraces such a condition upon performance. The Uniform Commercial Code, for example, defines agreement as “the bargain of the parties in fact as found in their language or by implication from other circumstances ____” U. C. C. § 1-201(3), 1 U. L. A. 44 (1976). Quite obviously, the parties’ bargain cannot be reflected without including the conditions upon their performance, one of the two principal elements of which contracts are constructed. Cf. E. Farnsworth, Contracts §8.2, p. 537 (1982) (“[P]romises, which impose duties, and conditions, which make duties conditional, are the main components of agreements”). It seems to us that this common meaning of the word “agreement” must be assigned to its usage in § 1823(e) if that section is to fulfill its intended purposes.

One purpose of § 1823(e) is to allow federal and state bank examiners to rely on a bank’s records in evaluating the worth of the bank’s assets. Such evaluations are necessary when a bank is examined for fiscal soundness by state or federal authorities, see 12 U. S. C. §§ 1817(a)(2), 1820(b), and when the FDIC is deciding whether to liquidate a failed bank, see § 1821(d), or to provide financing for purchase of its assets (and assumption of its liabilities) by another bank, see §§ 1823(c)(2), (c)(4)(A). The last kind of evaluation, in particular, must be made “with great speed, usually overnight, in order to preserve the going concern value of the failed bank and avoid an interruption in banking services.” Gunter v. Hutcheson, 674 F. 2d, at 865. Neither the FDIC nor state banking authorities would be able to make reliable evaluations if bank records contained seemingly unqualified notes that are in fact subject to undisclosed conditions.

A second purpose of § 1828(e) is implicit in its requirement that the “agreement” not merely be on file in the bank’s records at the time of an examination, but also have been executed and become a bank record “contemporaneously” with the making of the note and have been approved by officially recorded action of the bank’s board or loan committee. These latter requirements ensure mature consideration of unusual loan transactions by senior bank officials, and prevent fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure. Neither purpose can be adequately fulfilled if an element of a loan agreement so fundamental as a condition upon the obligation to repay is excluded from the meaning of “agreement.”

That “agreement” in § 1823(e) covers more than promises to perform acts in the future is confirmed by examination of the leading case in this area prior to enactment of § 1823(e) in 1950. In D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447 (1942), the FDIC acquired a note in a purchase and assumption transaction. The maker asserted a defense of failure of consideration (that is, the failure to perform a promise that was a condition precedent to the maker’s performance), based on an undisclosed agreement between it and the failed bank that the note would not be called for payment. The Court held that this “secret agreement” could not be a defense to suit by the FDIC because it would tend to deceive the banking authorities. Id., at 460. The Court stated that when the maker “lent himself to a scheme or arrangement whereby the banking authority . . . was likely to be misled,” that scheme or arrangement could not be the basis for a defense against the FDIC. Ibid, (emphasis added). We can safely assume that Congress did not mean “agreement” in § 1823(e) to be interpreted so much more narrowly than its permissible meaning as to disserve the principle of the leading case applying that term to FDIC-acquired notes. Certainly, one who signs a facially unqualified note subject to an unwritten and unrecorded condition upon its repayment has lent himself to a scheme or arrangement that is likely to mislead the banking authorities, whether the condition consists of performance of a counterpromise (as in D’Oench, Duhme) or of the truthfulness of a warranted fact.

B

Petitioners’ fallback position is that even if a misrepresentation concerning an existing fact can sometimes constitute an agreement covered by § 1823(e), it at least does not do so when the misrepresentation was fraudulent and the FDIC had knowledge of the asserted defense at the time it acquired the note. We conclude, however, that neither fraud in the inducement nor knowledge by the FDIC is relevant to the section’s application.

No conceivable reading of the word “agreement” in § 1823(e) could cause it to cover a representation or warranty that is bona fide but to exclude one that is fraudulent. Petitioners effectively acknowledge this when they concede that the fraudulent nature of a promise would not cause it to lose its status as an “agreement.” See supra, at 89, n. 1. The presence of fraud could be relevant, however, to another requirement of § 1823(e), namely, the requirement that the agreement in question “ten[d] to diminish or defeat the right, title or interest” of the FDIC in the asset.

Respondent conceded at oral argument that the real defense of fraud in the factum — that is, the sort of fraud that procures a party’s signature to an instrument without knowledge of its true nature or contents, see U. C. C. § 3-305(2)(c), Comment 7, 2 U. L. A. 241 (1977) — would take the instrument out of § 1823(e), because it would render the instrument entirely void, see Restatement (Second) of Contracts § 163 and Comments a, c; Farnsworth § 4.10, at 235, thus leaving no “right, title or interest” that could be “diminish[ed] or defeat[ed].” See Tr. of Oral Arg. 24-25, 27-30. Petitioners have never contended, however, nor could they have successfully, that the alleged misrepresentations about acreage or mineral interests constituted fraud in the factum. It is clear that they would constitute only fraud in the inducement, which renders the note voidable but not void. See U. C. C. §3-201(1), 2 U. L. A. 127; Restatement (Second) of Contracts §163, Comment c; Farnsworth §4.10, at 235-236. The bank therefore had and could transfer to the FDIC voidable title, which is enough to constitute “title or interest” in the note. This conclusion is not only textually compelled, but produces the only result in accord with the purposes of the statute. If voidable title were not an “interest” under § 1823(e), the FDIC would be subject not only to undisclosed fraud defenses but also to a wide range of other undisclosed defenses that make a contract voidable, such as certain kinds of mistakes and innocent but material misrepresentations. See Restatement (Second) of Contracts §§152-153, 164.

Finally, knowledge of the misrepresentation by the FDIC prior to its acquisition of the note is not relevant to whether § 1823(e) applies. Nothing in the text would support the suggestion that it is: An agreement is an agreement whether or not the FDIC knows of it; and a voidable interest is transferable whether or not the transferee knows of the misrepresentation or fraud that produces the voidability. See Farnsworth §11.8, at 780-781; cf. U. C. C. §3-201(1), 2 U. L. A. 127. Petitioners are really urging us to engraft an equitable exception upon the plain terms of the statute. Even if we had the power to do so, the equities petitioners invoke are not the equities the statute regards as predominant. While the borrower who has relied upon an erroneous or even fraudulent unrecorded representation has some claim to consideration, so do those who are harmed by his failure to protect himself by assuring that his agreement is approved and recorded in accordance with the statute. Harm to the FDIC (and those who rely upon the solvency of its fund) is not avoided by knowledge at the time of acquiring the note. The FDIC is an insurer of the bank, and is liable for the depositors’ insured losses whether or not it decides to acquire the note. Cf. 12 U. S. C. § 1821(f). The harm to the FDIC caused by the failure to record occurs no later than the time at which it conducts its first bank examination that is unable to detect the unrecorded agreement and to prompt the invocation of available protective measures, including termination of the bank’s deposit insurance. See § 1818 (1982 ed. and Supp. IV). Thus, insofar as the recording provision is concerned, the state of the FDIC’s knowledge at that time is what is crucial. But as we discussed earlier, see supra, at 92, § 1823(e) is meant to ensure more than just the FDIC’s ability to rely on bank records at the time of an examination or acquisition. The statutory requirements that an agreement be approved by the bank’s board or loan committee and filed contemporaneously in the bank’s records assure prudent consideration of the loan before it is made, and protect against collusive reconstruction of loan terms by bank officials and borrowers (whose interests may well coincide when a bank is about to fail). Knowledge by the FDIC could substitute for the latter protection only if it existed at the very moment the agreement was concluded, and could substitute for the former assurance not at all.

The short of the matter is that Congress opted for the certainty of the requirements set forth in § 1823(e). An agreement that meets them prevails even if the FDIC did not know of it; and an agreement that does not meet them fails even if the FDIC knew. It would be rewriting the statute to hold otherwise. Such a categorical recording scheme is of course not unusual. Under Article 9 of the U. C. C., for example, a filing secured creditor prevails even over those unrecorded security interests of which he was aware. See, e. g., Rockwell Int’l Credit Corp. v. Valley Bank, 109 Idaho 406, 408-409, 707 P. 2d 517, 519-520 (Ct. App. 1985); Bloom v. Hilty, 427 Pa. 463, 471, 234 A. 2d 860, 863-864 (1967); 9 R. Anderson, Uniform Commercial Code § 9-312:74, p. 298 (3d ed. 1985); J. White & R. Summers, Uniform Commercial Code §25-4, p. 1037 (2d ed. 1980).

* *

A condition to payment of a note, including the truth of an express warranty, is part of the “agreement” to which the writing, approval, and filing requirements of 12 U. S. C. § 1823(e) attach. Because the representations alleged by petitioners constitute such a condition and did not meet the requirements of the statute, they cannot be asserted as defenses here. The judgment of the Court of Appeals is

Affirmed.

       The Langleys also alleged certain other misrepresentations by Planters, including that the Langleys would have no personal liability on the notes, that Planters would provide another purchaser for the land as soon as the sale to the Langleys was closed, and that no payments would be due until the property was resold. The Langleys concede that 12 U. S. C. § 1823(e) bars these other misrepresentations from being asserted as defenses to FDIC’s suit on the note because they were promissory in nature. Brief for Petitioners 12.