Heiser v. Union Carbide Corp

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Ball, et al. v. Union Nos. 02-6289/6311 ELECTRONIC CITATION: 2004 FED App. 0229P (6th Cir.) Carbide Corp., et al. File Name: 04a0229p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Edmund L. Carey, Jr., BARRETT, JOHNSTON _________________ & PARSLEY, Nashville, Tennessee, for Appellants. Christopher Landau, KIRKLAND & ELLIS, Washington, FANNIE BALL , et al. X D.C., John T. Buckingham, ASSISTANT UNITED STATES (02-6289); STEPHEN HEISER, - ATTORNEY, Knoxville, Tennessee, for Appellees. et al. (02-6311), - ON BRIEF: Edmund L. Carey, Jr., George E. Barrett, - Nos. 02-6289/6311 BARRETT, JOHNSTON & PARSLEY, Nashville, Plaintiffs-Appellants, - Tennessee, for Appellants. Christopher Landau, Susan E. > Kearns, KIRKLAND & ELLIS, Washington, D.C., John T. , v. - Buckingham, ASSISTANT UNITED STATES ATTORNEY, - Knoxville, Tennessee, Kevin T. Van Wart, KIRKLAND & UNION CARBIDE CORP ., et al., - ELLIS, Chicago, Illinois, E. H. Rayson, Thomas M. Hale, KRAMER, RAYSON, LEAKE, RODGERS & MORGAN, Defendants-Appellees. - Knoxville, Tennessee, for Appellees. - N _________________ Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. OPINION Nos. 01-00022; 01-00037—James H. Jarvis, District Judge. _________________

Argued: April 27, 2004 JUDITH M. BARZILAY, Judge. This is a consolidated case. The Heiser Plaintiffs are individuals who live or have Decided and Filed: July 15, 2004 lived in or near Oak Ridge, Tennessee, and who allegedly have cancer or have an increased risk of acquiring cancer or Before: GUY and GILMAN, Circuit Judges; BARZILAY, other diseases. The Ball Plaintiffs are African-Americans Judge.* who live or have lived in a community known as Scarboro in Oak Ridge. Plaintiffs claim that they have been harmed through exposure to radioactive and other toxic substances over the period when nuclear weapons were manufactured in Oak Ridge. Defendants are private contractors of the United States government that operate or have operated nuclear weapons manufacturing and research facilities in the Oak * Ridge Reservation (“Contractor-Defendants”), and Secretary The Honorable Judith M. Barzilay, Judge, United States Court of Spencer Abraham of the United States Department of Energy International Trade, sitting by designation.

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and John A. Gordon of the National Nuclear Security predominantly African-American community in Oak Ridge.” Administration (“Government-Defendants”). Plaintiffs (JA 192.) appeal from a final order granting summary judgment to both the Contractor-Defendants and Government-Defendants, and In addition to federal agencies, the following private the denial of Plaintiffs’ motion for class certification. contractors operate or have operated the Oak Ridge facilities Plaintiffs seek injunctive and equitable relief for medical and are named as Contractor-Defendants in Plaintiffs’ monitoring and environmental cleanup, and, in Heiser, complaint: the University of Chicago; Monsanto Company; damages.1 For all the reasons stated below, we AFFIRM. Union Carbide Corporation; Roane-Anderson Company; Management Services, Inc.; Eastman Chemical Company; BACKGROUND Eastman Kodak Company; Turner Construction Company; UT-Battelle, LLC; Martin-Marietta Energy Systems, Inc.; The federal government established the Oak Ridge Lockheed Martin Energy Systems, Inc.; BWXT Y-12 LLC; Reservation (“ORR”) as part of the Manhattan Project in and Bechtel Jacobs Company, LLC. (JA 32, 147.) 1942. The ORR includes three production facilities, each in a separate valley. The city of Oak Ridge was established in In 1992 the state and federal governments collaborated in the ORR to house thousands of civilian workers and military forming a panel (Oak Ridge Health Agreement Steering Panel personnel. The federal ownership and control of the area (“ORHASP”)) to study the health effects of the release of ended when the City of Oak Ridge received a charter of radioactive and other toxic substances from the Oak Ridge incorporation from the State of Tennessee in 1959. facilities. The ORHASP periodically disclosed the results of its ongoing study and held open meetings throughout the In the early 1940s, African-American workers were 1990s. The study was covered by the news media. recruited from Tennessee and other southern states to work as common laborers, janitors, and domestic workers in Oak On January 15, 2000, the ORHASP issued its final report Ridge. These workers were housed in a separate camp, which to the public. The report was dated December 1999. The came to be known as Scarboro, near one of the Oak Ridge ORHASP final report determined: plants, code named Y-12, that enriched uranium and produced nuclear weapon components. It is undisputed that Scarboro The results suggest it is likely that some people were hurt was established and maintained as a segregated community in by the releases. The project reports present estimates of the 1940s. The district court noted that “Scarboro remains a the number of people who could have become ill as a result of exposure to the ORR environmental pollutants. Two groups were most likely to have been harmed: local children drinking milk from a “backyard” cow or goat in 1 The Ball Plaintiffs no longer ask for d amages, Pls.’ B all Br. at 1-2, the early 1950s, and fetuses carried in the 1950s and 19, even though initially they sought damages along with injunctive relief early 1960s by women who routinely ate fish taken from and never amended their comp laint to that effect. (JA 51, 5 2.) the contaminated creeks and rivers located downstream Contracto r-Defendants argue that the Ball Plaintiffs cannot “amend” their from the ORR. complaint in their briefs to this court. See Con-D efs.’ Ba ll Br. at 17. In any event, the Ball Plaintiffs’ arguments on this issu e are without merit, (JA 1329.) as exp lained below.

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The Heiser Plaintiffs claim personal injury from emissions. limitations issue. Pls.’ Ball Br. at 21-25; Pls.’ Heiser Br. at Four of the Heiser Plaintiffs allege they have developed 33, 35-36. Contractor-Defendants counter that a separate thyroid cancer due to radioactive emissions. The remaining notice was not required because their motion was for three allege they are at risk of developing thyroid cancer. dismissal or, in the alternative, for summary judgment, which provided notice to Plaintiffs. Con-Defs.’ Heiser Br. at 13-16. The Ball Plaintiffs allege discrimination under a number of civil rights statutes and the Equal Protection and Due Process A district court’s decision to convert a motion to dismiss Clauses of the Fifth and Fourteenth Amendments to the under Rule 12(b)(6) into a motion for summary judgment United States Constitution. In particular, the Ball Plaintiffs under Rule 56 is reviewed for abuse of discretion. See Shelby allege that “Defendants located and maintained, and continue County Health Care Corp. v. S. Council of Indus. Workers to maintain, Scarboro in an area known by Defendants to be Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir. the most contaminated and the most vulnerable to ongoing 2000). pollution because of its proximity to the Y-12 plant.” Pls.’ Ball Br. at 13-14. Plaintiffs maintain that as a result, the When deciding on a motion for summary judgment, Fed. R. housing in Scarboro is less desirable, worth less, and accorded Civ. P. 56(f) allows the court to order discovery if it “should lower priority in terms of cleanup than other parts of Oak . . . appear from the affidavits of a party opposing the motion Ridge. Plaintiffs also maintain that “Defendants, by placing that the party cannot for reasons stated present by affidavit Plaintiffs in the location of Scarboro and the immediate facts essential to justify the party’s opposition.” Further, environs of the Y-12 plant, created a condition which was under Fed. R. Civ. P. 12(b), before the district court may treat inherently unsafe and unhealthy; and is the proximate cause a motion to dismiss as a summary judgment motion, it must of Plaintiffs’ injuries and of their higher risk of injuries, give “all parties . . . reasonable opportunity to present all creating the need for medical monitoring and surveillance.” material made pertinent to” the issue. The Sixth Circuit Id. at 15. interpreted this requirement to mean that it is “serious error” for a district court to convert the motion sua sponte to a Plaintiffs commenced this action within one year of the summary judgment motion without notice to parties and date of the release of the ORHASP final report on January 15, without further discovery. Helwig v. Vencor, Inc., 251 F.3d 2000. 540, 552 (6th Cir. 2001) (en banc). DISCUSSION Here, the district court did not act sua sponte in converting the motion to dismiss to a summary judgment motion. A. Notice and Discovery. Contractor-Defendants moved for summary judgment in the alternative. Moreover, as Contractor-Defendants correctly Plaintiffs first challenge the district court’s grant of assert, Plaintiffs responded to the summary judgment motion summary judgment under Fed. R. Civ. P. 56 on the basis that by submitting materials outside the pleadings, such as the statute of limitations had run on Plaintiffs’ claims. affidavits. See Con-Defs.’ Heiser Br. at 14-15. Therefore, Plaintiffs argue that the district court should not have granted Plaintiffs’ insistence that they “genuinely were surprised that the summary judgment without first giving notice to Plaintiffs the Court would have any intention to convert the motion,” and without permitting Plaintiffs discovery as to the statute of Pls.’ Heiser Br. at 34, is not supported by the facts. They had

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notice that the district court might treat the motion as one for The Sixth Circuit generally applies the abuse of discretion summary judgment because such a motion was actually filed, standard to the district court’s decision to deny discovery and they responded to it. whether such request was made on a motion or by a Rule 56(f) affidavit. See Plott, 71 F.3d at 1196-97. It is not an Accordingly, the only remaining issue is whether the abuse of discretion for the district court to deny the discovery district court abused its discretion in denying Plaintiffs’ request when the party “makes only general and conclusory request for discovery before it granted the summary judgment statements [in its affidavit] regarding the need for more motion. discovery and does not show how an extension of time would have allowed information related to the truth or falsity of the It is well-established that the plaintiff must receive “a full [document] to be discovered.” Ironside v. Simi Valley Hosp., opportunity to conduct discovery” to be able to successfully 188 F.3d 350, 354 (6th Cir. 1999). It is also not an abuse of defeat a motion for summary judgment. See Anderson v. discretion to reject a Rule 56(f) affidavit as insufficient to Liberty Lobby, Inc., 477 U.S. 242, 257 (1986); see also support further discovery when the affidavit lacks “any Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“the plain details” or “specificity.” Emmons v. McLaughlin, 874 F.2d language of Rule 56(c) mandates the entry of summary 351, 357 (6th Cir. 1989). judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to The affidavit in question here was submitted by Plaintiffs’ establish the existence of an element essential to that party's attorney and included the following statements in support of case, and on which that party will bear the burden of proof at the discovery request: trial”); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231-32 (6th Cir. 1994) (“[in light of Anderson and In my opinion, to respond with due diligence, Celotex,] a grant of summary judgment is improper if the discharging my responsibilities to the class, to the non-movant is given an insufficient opportunity for materials outside the pleadings which these defendants discovery”). urge the Court to consider by converting their motion to one for summary judgment, would require obtaining the The district court’s decision to deny further discovery is, results of substantial written and document discovery, however, generally unreviewable unless the appellant has and a number of depositions, on the subjects of when filed “a Rule 56(f) affidavit or a motion that gives the district plaintiffs’ claims accrued, and what information was court a chance to rule on the need for additional discovery.” released by any defendants to members of the public and Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir. when and how such releases occurred, and on a variety of 1995). “Beyond the procedural requirement of filing an statements, and agents of defendants, over the years on affidavit, Rule 56(f) has been interpreted as requiring that a the subject of the safety of their operations and their party making such a filing indicate to the district court its impact upon the environment surrounding their need for discovery, what material facts it hopes to uncover, operations. Only this type of discovery would produce and why it has not previously discovered the information.” an adequate response to the many partial documents, and Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. partial collections of documents, submitted by 2000). Defendants, who appear upon inspection of the

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documents to have selected some, and omitted others affidavit was “irrelevant” to the issue of statute of limitations. bearing on the same subjects. (JA 88.) (JA 508; 1181.) B. Statute of Limitations. Plaintiffs argue that the district court erred because the A district court’s decision to grant summary judgment is affidavit was sufficient and specific. See Pls.’ Heiser Br. at reviewed de novo. Higgason v. Stephens, 288 F.3d 868, 874 49. Contractor-Defendants counter that Plaintiffs’ discovery (6th Cir. 2002). request does not include any specific statements as to which “material facts [they] hope[d] to uncover.” Con-Defs.’ Heiser (i) Personal injury claims. Br. at 18 (quoting Cacevic, 226 F.3d at 488). Contractor- Defendants additionally argue that “when plaintiffs’ claims The ultimate issue in this case is when the statute of accrued” is not a discoverable fact, but is a legal question. limitations was triggered. Plaintiffs maintain that the district See id. court erred in granting summary judgment in favor of all Defendants on the grounds that Tennessee’s one-year statute The district court here stated (without explanation) that of limitations barred Plaintiffs’ claims. Pls.’ Ball Br. at 25; Plaintiffs “have not satisfied the requirements of Rule 56(f).” see also Tenn. Code Ann. §§ 28-3-104(a)(1), (3) (2000). (JA 87.) The district court additionally noted, however, that Plaintiffs argue that the statute did not begin to run with “even if they had, they have not described any helpful respect to their personal injury claims until January 15, 2000, discovery in light of the fact that it has been publicly debated when the final report of the ORHASP was released. since the early 1980s that toxins are present in the Oak Ridge community.” (Id.) The district court further observed that the “The statute of limitations commences to run when the ORHASP final report contained no information “not plaintiff knows or has reason to know of the injury which is previously available to the public.” (Id.) The district court the basis of his action.” Sevier v. Turner, 742 F.2d 262, 273 took judicial notice of “such publicity” under Fed. R. Evid. (6th Cir. 1984); Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn. 201. (JA 88.) 1995) (the statute is triggered when the plaintiff becomes “aware of facts sufficient to put a reasonable person on notice The district court did not abuse its discretion in denying that he has suffered an injury as a result of wrongful Plaintiffs’ discovery request. Plaintiffs’ Rule 56(f) affidavit conduct”). “A plaintiff has reason to know of his injury when does not state how any discovery would have shed further he should have discovered it through the exercise of light on the issue of when the statute of limitations began to reasonable diligence.” Sevier, 742 F.2d at 273. The Sixth run. Plaintiffs merely hint at concealment on the part of Circuit explained the duty to inquire as follows: Defendants with respect to adverse health effects of the emissions. See discussion, infra. The reality of toxic [I]f greater than de minimis harm is discernable at the emissions from the Oak Ridge facilities has, however, been in time of the tortious event, then the time of the event rule the public domain for some time. Accordingly, as the district applies . . . [I]f the injured person sustains an injury court stated, the discovery requested in Plaintiffs’ Rule 56(f) which cannot itself be reasonably discovered, or the cause of which cannot reasonably be discovered, until

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some time following the tortious event and the running is whether a typical person would have been aware of a of the statue of limitations, courts often apply the possible link between emissions and health risks.3 “discovery” rule, tolling the running of the statute of limitations to the date by which the plaintiff reasonably Given that local and national news media repeatedly should have discovered both cause and injury. covered the issue, and that the ORHASP publicized the progression of its study since its inception in 1992 and issued Hicks v. Hines, Inc., 826 F.2d 1543, 1544 (6th Cir. 1987) its preliminary results throughout, Plaintiffs should have been (quotations omitted); see Mich. United Food & Commercial Workers Unions & Drug & Mercantile Employees Joint Health & Welfare Fund v. Muir Co., 992 F.2d 594, 600 (6th unpersuasive. See P ls.’ Ball Br. at 41-44. The Hughes court reach ed its Cir. 1993) (in defining the concept of due diligence, this court conclusion about the plaintiff’s possession of constructive knowledge has “looked to what event should have alerted the typical lay before noting the admission in the com plaint. Hughes, 215 F.3d at 548- person to protect his or her rights.” (quoting Dixon v. 49. Anderson, 928 F.2d 212, 215 (6th Cir. 1991)); Overberg v. 3 Lusby, 921 F.2d 90, 91 (6th Cir. 1990) (noting that plaintiff W ith respect to the interpretation of widespread publicity, Plaintiffs rely on the Ninth Circuit’s decision in O’Connor. See Pls.’ Heiser Br. at had a duty to inquire when she became knowledgeable about 53-55. The O’Connor court held that “[t]he d istrict court erred in her medical condition); accord O’Connor v. Boeing North concluding as a ma tter of law that newspaper reports concerning the Am., Inc., 311 F.3d 1139, 1146-48 (9th Cir. 2002) (accrual of Defend ants' facilities were sufficiently ‘num erous and notorious’ to claim must be based on “knowledge” and not “mere impute knowledge of them to Plaintiffs.” O’Connor, 311 F.3d at 1152. suspicion”). The O’Connor court pronounced that the determination of widespread publicity As rightly observed by Contractor-Defendants, the public required a fact-intensive examination of the geo graphic scope of record here was sufficient to alert Plaintiffs as to a possible the circulation of various publications, the level of saturation of connection between emissions and health risks near Oak each publication within the relevant communities, the frequency Ridge long before January 15, 2000. The rule in this Circuit with which articles on the Rocketdyne facilities appeared in each is that “[w]here events receive . . . widespread publicity, publication, the prominence of those articles within the publication, and the likelihood that a reaso nable person living in plaintiffs may be charged with knowledge of their Plaintiffs' various com munities at the same time as P laintiffs occurrence.” Hughes v. Vanderbilt Univ., 215 F.3d 543, 548 would have read such articles. These are all factual questions (6th Cir. 2000) (quotation omitted). A plaintiff is charged unsuitab le for sum mary judgm ent. with constructive knowledge even when she claims that “she did not hear or read any of the media reports.” Hughes, 215 Id. W e are of the belief that the O’Connor decision does not announce a bright-line rule with resp ect to the nature of pub licity about potentially F.3d at 548. “The relevant inquiry in [such] cases . . . is an hazardous conditions like Oak Ridge emissions. We also observe that the objective one.” Id. (citations omitted).2 That is, the question facts in O’C onnor are substantially different than the present case. The O’Connor opinion cited at least three prior studies that undermined the link betwe en the contam inants and the cancer. The O’Connor court 2 rightly observed that the media coverage did not “connect [the] dots” Plaintiffs’ attempt to distinguish Hughes on the basis that there was dispersed by unclear scientific reports. Here, on the other hand, an an admission by the named Hughes plaintiff in her complaint that she had amb iguity to that degree was not present. There has been no scientific actual knowledge of the facts sufficiently in advance of her suit is repo rt negating the link b etween releases and health risks.

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aware of a potential personal injury claim connected to Oak opposed to the disease itself. When the increased risk of Ridge emissions or releases in 1998 or 1999 at the latest, disease is the injury claimed, the threshold of finding a “duty when the ORHASP preliminary reports became available. to inquire” under Hicks is lower. That is, individuals should (JA 213, 1391-1401, 1600-1603.) It is true that the ORHASP know that they are “at risk” as soon as a link between cancer final report constitutes the first instance when a definite link and emissions becomes apparent. On the other hand, when was established with finality. However, Plaintiffs do not the injury is contracting cancer, the claim will accrue when allege that they belong to the two groups “most likely to have the plaintiff knew or should have known of the disease, not been harmed” by the Oak Ridge releases.4 The issue of the just the risk of acquiring the disease. In that event, a plaintiff final report did not by itself trigger Plaintiffs’ duty to inquire must clearly plead that the injury occurred within the statute under Hicks. Accordingly, Plaintiffs should have raised their of limitations period. Plaintiffs here face a formidable statute claims sometime in the late 1990s when it became apparent of limitations hurdle. The reason is in part that individuals that they may have had a viable claim.5 not similarly situated became plaintiffs in one and the same suit.6 It is possible the weaker claims have obscured the More importantly, none of the Plaintiffs here claim that stronger claims. From this vantage point, however, it is they have contracted a disease attributable to the toxic impossible to discern who would have a viable claim, releases within the one-year statute of limitation period. Only especially given that no argument was advanced that plaintiffs some of the Heiser Plaintiffs allege they have actually were diagnosed with any disease during the limitations contracted cancer, while others claim increased risk of cancer. period. The district court noted correctly that “conceivably a Yet, there must necessarily be different accrual dates when plaintiff with a still viable claim could exist (i.e., a person the injury complained of is the increased risk of disease as who was diagnosed with thyroid cancer within one year of filing suit).” (JA 88.). This opinion does not address such a claim. 4 Even that finding had been released in draft form in March 1998 and On a different note, we find Plaintiffs’ claims alleging the reported in local newspapers. The first paragraph of a March 1998 Knoxville News-Sentinel article reads “Releases of radioactive iodine from Contractor-Defendants’ “fraudulent acts” of concealment to Oak Ridge National Laborato ry during the 1940 s and ‘50s p robably be without merit. Pls.’ Ball Br. at 45. Plaintiffs claim no exposed thousands of children to radiation and increased their lifetime specific act of concealment, but underline that a number of risk of developing thyroid cancer, scientists repo rted T hursday in the articles that covered Oak Ridge were equivocal and preliminary findings.” Report Ties Releases of Iodine, K NOXVILLE N E W S- contained phrases such as “no harm” from the emissions, “no S ENTINEL, March 20, 1998. An Oak Ridg er article of the same date had the headline: “Releases Linked to Thyroid Cancer.” T HE O AK R IDGER , link” to cancer, and “no health concern.” Id. 52; Pls.’ Heiser May 20, 1998. Br. at 53. Plaintiffs also point to “national security classification” of information regarding Oak Ridge. Pls.’ Ball 5 Br. at 38. Plaintiffs’ attorney specifically states in his affidavit that a lawsuit during the 1990s would have been premature and frivolous under Fed. R. Civ. P. 11. (JA 509.) “A principal reason was that most relevant information was classified, unrelease d, and therefore unavailable and would remain unavailable.” (Id.) However, as urged by Contractor- 6 Defend ants, the stand ard is an objective one and does not relate to what Indeed, the district court devoted most of its opinion to explaining Plaintiffs’ attorney m ay subjectively have b elieved or no t believe d. why a class certification of these ind ividuals was no t appropriate.

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We recognize that when a government project such as Oak by Plaintiffs include Wygant v. Jackson Board of Education, Ridge is shrouded in secrecy, it may be difficult to collect the 476 U.S. 267 (1986); Fullilove v. Klutznick, 448 U.S. 448 necessary facts to make a case. However, it was well known (1980) (including the concurring opinion by Justice Powell); that plants in Oak Ridge engaged in nuclear weapons United Steelworkers of America v. Weber, 443 U.S. 193 manufacturing and other nuclear research, that they released (1979); Regents of University of California v. Bakke, 438 U.S. toxic materials, and that such toxic materials may be 265 (1978); Hazelwood School District v. United States, 433 hazardous to human health depending on the dosage. (JA U.S. 299 (1977); and Hammon v. Barry, 813 F.2d 412 (D.C. 303-12; 988-1001; 1599-1603.) Plaintiffs needed to present Cir. 1987). to this court with sufficient clarity and “particularity” what they claim was fraudulently concealed by government Contractor-Defendants counter that Plaintiffs’ alleged officials and contractors and how that affected their case. exposure to Oak Ridge emissions is not a “vestige” of racial Dayco v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394 discrimination. Con-Defs.’ Ball Br. at 19-22. Contractor- (6th Cir. 1975). We find nothing in the record of this case Defendants alternatively argue that they have no ongoing that exhibits any concealment motivated by bad faith on the affirmative duty to remedy the effects of discrimination by part of Defendants. We further note that the duty to inquire governmental entities. Id. at 22, 29. Contractor-Defendants applies even when the government may have engaged in finally argue that, in any event, there is no affirmative duty to concealment of facts. See Kronisch v. United States, 150 F.3d remedy the effects of residential segregation. 112, 121 (2d Cir. 1998). The district court observed that “the Scarboro community (ii) Civil rights claims. has been integrated since the 1950s.” (JA 89.) The district court went on to say: “To find otherwise would mean the The Ball Plaintiffs additionally argue that the statute of statute of limitations would never be tolled unless every black limitations does not apply because Contractor-Defendants person left Scarboro.” (Id.) The district court specifically have a continuing affirmative duty to remedy effects of discounted the de facto discrimination cases regarding school exposure to emissions as such effects constitute “vestiges” of desegregation finding them “not applicable here.” (Id.) historical de jure racial segregation. Pls.’ Ball Br. at 28. Plaintiffs charge that “the continuing existence of Scarboro as The district court is correct. The factual patterns of school a segregated community is attributable (and attributed by the desegregation cases bear little resemblance to the facts alleged Amended Complaint) to all Defendants’ unconscionable here. Moreover, Plaintiffs do not seek to eliminate the actions.” Pls.’ Ball Br. at 29. Plaintiffs attempt to derive “vestige” of past discrimination by asking for the support from a number of school desegregation cases, such as desegregation of Scarboro. See Con-Defs.’ Ball Br. at 20. Freeman v. Pitts, 503 U.S. 467 (1992); Columbus Board of “Rather, [they] are seeking remedies for potential personal Education v. Penick, 443 U.S. 449 (1979); and Dayton Board injuries and property damage relating to alleged exposure to of Education v. Brinkman, 443 U.S. 526 (1979). Plaintiffs also rely on various affirmative action cases for the proposition that “affirmative action may be used to eradicate continuing effects (i.e., “vestiges”) of discrimination that occurred in the past.” Pls.’ Ball Br. at 33-34. The cases cited

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Oak Ridge emissions.”7 Id. at 20-21. As Contractor- On the issue of affirmative duty, the case Plaintiffs rely on Defendants correctly explain: is distinguishable. In Hills v. Gautreaux, the Supreme Court sustained “[a]n order directing HUD to use its discretion [T]he fact that [Plaintiffs’] alleged personal injuries and under the various federal housing programs to foster projects property damage might not have occurred (or might not located in white areas of the Chicago housing market,” have been so serious) but for the racial discrimination finding that such an order would be “consistent with and that led to the establishment of Scarboro in the first supportive of well-established federal housing policy.” 425 instance does not mean that the discrimination was the U.S. 284, 301 (1976). HUD was ordered to remedy its own proximate cause of those injuries and that damage. The “wrong” of “confin[ing black tenants] to segregated public concept of the “vestiges” of discrimination has never housing.” Id. at 299. In this case, there is no allegation here been stretched so far as to encompass anything bad that that Contractor-Defendants initiated the segregation. happens to someone that might not have happened but for racial segregation. Under [P]laintiffs’ logic, anything Accordingly, we find that neither the United States bad that happens as a result of Scarboro’s location can be Constitution nor federal civil rights statutes afford the relief deemed a “vestige” of discrimination, since Scarboro Plaintiffs ask.8 itself would not exist but for discrimination. C. Class certification. Id. at 21. It would indeed be a stretch to rely on the school desegregation cases to require Contractor-Defendants to Plaintiffs next challenge the district court’s denial of their eliminate any lingering effects of past governmental class action certification motion. In Heiser, Plaintiffs sought discrimination by paying for cleanup and medical monitoring. to certify as a Rule 23(b)(2) or Rule 23(b)(3) class:

The affirmative action cases Plaintiffs reference are [P]ersons who lived in Oak Ridge, Tennessee, or similarly not dispositive. Those cases stand for the otherwise resided in a nearby geographic area under the proposition that affirmative action is not prohibited by the influence of the Defendants from 1943 to the present Constitution or the federal civil rights statutes. See Con- who have not yet contracted thyroid cancer but who have Defs.’ Ball Br. at 26-27. These cases do not, however, go as been exposed and put at risk by Defendants’ act. far as to interpret the Constitution and the federal civil rights statutes as mandating government contractors to remedy past In Ball, Plaintiffs sought to certify as a Rule 23(b)(2) class: discrimination. That is, contractors have no affirmative duty to eliminate current effects of past discrimination by [A]ll individuals of African American descent who governmental entities. currently live in and/or currently own property in

8 Because we find the Ball Plaintiffs’ civil rights claim s without merit 7 in any event, we need not reach the issue of which statute of limitations See supra note 1, regarding the remedy the Ball Plaintiffs are now applies to the claims: the four-year statute of limitations of 28 U.S.C. seeking. § 16 58, the one-year T ennessee statute, or another statute.

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Scarboro and/or once lived in the Scarboro community analyzing commonality. See id. at 56. Plaintiffs explain that and continue to frequently visit the Scarboro community. “[i]f the issue of liability is common to all class members then Rule 23(a)(2) commonality and Rule 23(a)(3)’s typicality (JA 203.) The district court first emphasized that class action requirements are satisfied.” Id. at 57 (citing Mayer v. Mylod, certification is generally not appropriate in mass tort cases. 988 F.2d 635, 640 (6th Cir. 1993)). Plaintiffs identify the The district court further denied the motion because it found commonality issue as Defendants’ obligation to remedy that Plaintiffs failed to show commonality and typicality of present discriminatory effects of past discrimination, and the claims, and failed to meet the adequate representation typicality issue as Defendants’ same unlawful conduct being requirement under Fed. R. Civ. P. 23(a).9 directed at both Plaintiffs and the other members of the putative class. See id. at 54, 59. Plaintiffs charge that the district court abused its discretion when it ignored “five separate sworn affidavits or declarations Contractor-Defendants claim that the Ball case “is submitted” in support of their class certification motion. Pls.’ essentially the Heiser case, dressed up as a civil rights case.” Heiser Br. at 57. Plaintiffs further charge that the district Con-Defs.’ Ball Br. at 32 (emphasis in the original). court abused its discretion by treating the Ball Plaintiffs as a Contractor-Defendants maintain that the true remedy sought subclass of the Heiser Plaintiffs because, where race here is compensation for personal injury, property damage, discrimination is alleged and injunctive relief is sought, class and medical monitoring, all of which are individual remedies. certification is appropriate. See Pls.’ Ball Br. at 53. Plaintiffs See id. at 36. also challenge the district court’s focus on individualized issues of proof with respect to commonality because they As to the proposed class in Heiser, the district court found assert that the predominance analysis is inappropriate in that the commonality requirement is not satisfied because “there are multiple issues not common to all class members.” (JA 77-78.) The district court further found that the 9 Rule 23(a) reads as follows: individual Plaintiffs’ claims were not typical of the claims of Prerequisites to a Class Action. One or m ore m emb ers of a class the class as a whole because “many of the class members may sue or be sue d as represe ntative p arties on behalf of all only were not even living in Oak Ridge in the 1950s, which is if (1) the class is so nume rous that joind er of all m emb ers is impracticable, (2) there are questions of law or fact common to when the most significant emissions complained of occurred.” the class, (3) the claims or defenses of the representative parties (JA 78.) For similar reasons, the district court also found that are typical of the claims or defenses of the class, and (4) the Plaintiffs were not adequate representatives of the class. representative parties will fairly and adequately protect the interests of the class. As to the proposed class in Ball, the district court observed: Fed. R. Civ. P. 23 (a). Mo reover, an “action may be m aintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: ... Even if it is assumed there are common issues with (2) the party opposing the class has acted or refused to act on regard to de jure segregation and whether vestiges of that grounds generally applicable to the class, thereby m aking segregation remain in Scarboro, those questions do not app ropriate final injunctive relief, or corresponding declaratory predominate over the innumerable individualized relief with respect to the class as a whole . . . .” questions that would exist with respect to each plaintiff. Fed. R. Civ. P. 23(b)(2). Each member of the proposed class lived in Scarboro for

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a discrete period of time and was exposed to mercury or Here, the district court did not abuse its discretion in other toxins in a discrete way. Some may have lived denying class certification. The district court analyzed the there for fifty or more years and some for a week or less. Rule 23(a) requirements in concluding that Plaintiffs did not Some were there in the late 1950s when emissions were have claims common and typical to the class. The district greatest and some were not. A few may have consumed court was correct in treating the Ball plaintiffs as a subset of milk from a backyard farm animal in the 1950s, most did the Heiser plaintiffs because of the same underlying claim of not. As in Heiser, each individual plaintiff, if he or she environmental injury in both. The Ball case is “simply not a has a claim, has a highly individualized claim based on case about racial discrimination in the abstract, but a case his or her total exposure time, exposure period, medical alleging that racial discrimination caused environmental history, diet, sex, age, and a myriad of other factors. The injuries.” Con-Defs.’ Ball Br. at 40. Even though liability court finds that the individualized issues far outweigh issues may have been common to the putative class, by any common ones. seeking medical monitoring and environmental cleanup of property, Plaintiffs have raised individualized issues. Each (JA 80-81.) The district court then pointed to differences individual’s claim was for that reason necessarily proportional among the named Ball Plaintiffs, such as the duration of time to his or her exposure to toxic emissions or waste. Similarly, they lived in Scarboro or their property ownership. (JA 81.) the Heiser Plaintiffs’ claims depended on their period of The district court opined that, therefore, “there is no ‘typical’ residency in Oak Ridge and levels of exposure. Also, the Scarboro resident for purposes of Rule 23.” Finally, the “named plaintiffs who already have thyroid cancer have district court noted that the proposed class in Ball, as in fundamentally different interests than those named and Heiser, was too “vague.” (JA 82.) unnamed plaintiffs who do not.” Con-Defs.’ Heiser Br. at 47 (emphasis in the original). Indeed, the Heiser Plaintiffs who The district court’s decision to deny class certification is had thyroid cancer were not even members of the proposed reviewed for abuse of discretion. See Sprague v. Gen. Motors class, which was defined as consisting of individuals who Corp., 133 F.3d 388, 397 (6th Cir. 1998) (en banc). The were at risk of developing the cancer. district court must “rigorously” analyze the requirements of Rule 23. See id. (citation omitted). “No class that fails to Furthermore, Plaintiffs’ reliance on Sterling v. Velsicol satisfy all four of the prerequisites of Rule 23(a) may be Chemical Corporation, 855 F.2d 1188, 1197 (6th Cir. 1988), certified, and each class meeting those prerequisites must also is misplaced. In Sterling, this court observed that “the mere pass at least one of the tests set forth in Rule 23(b).”10 Id. fact that questions peculiar to each individual member of the (citation omitted). class remain after the common questions of the defendant's liability have been resolved does not dictate the conclusion that a class action is impermissible.” 855 F.2d at 1197. The court went on to say that “where the [one] defendant's liability 10 can be determined on a class-wide basis because the cause of For that reason and contrary to Plaintiffs’ assertion, the district the disaster is a single course of conduct which is identical for court could no t have certified the Rule 2 3(b)(2 ) class without first finding each of the plaintiffs, a class action may be the best suited that all the req uirements of Rule 23(a) have been satisfied. The corollary is that the district court need not have reached the Rule 23(b) issues after vehicle to resolve such a controversy.” Id. Here, however, finding the requirements of R ule 23 (a) have not been met. there are multiple Defendants with presumably differing

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liability levels, if any. Accordingly, there is no “single course defendant, the real party in interest is the United States of conduct.” Therefore, Sterling is distinguishable on its government and the suit is subject to governmental defenses facts. Moreover, Sterling affirmed the class action including sovereign immunity. Kentucky v. Graham, 473 certification, emphasizing the district court’s discretion in U.S. 159, 166-67 (1985). Even so, federal courts have making such decisions. jurisdiction to provide prospective injunctive relief against the unconstitutional actions of federal officers. Bell v. Hood, 327 Finally, the fact that the district court’s discussions of the U.S. 678 (1946). Plaintiffs somewhat disingenuously argue commonality and typicality issues were intertwined is not that “this action is virtually entirely, if not exclusively, for fatal. We have recognized that the “commonality and injunctive relief.” The prayer for relief, however, includes typicality requirements of Rule 23(a) tend to merge.” requests for declaration of liability for all future costs of Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir. removing contamination, injunctive relief in the form of an 1998). Plaintiffs additionally charge that the district court order directing abatement and disclosure of information, and should not have used the term “predominance” found in Rule admission of wrongdoing and a public apology for violating 23(b)(3) in its analysis of commonality and typicality. 11 Plaintiffs’ constitutional rights. Because we affirm the However, “the predominance requirement of Rule 23(b)(3) dismissal of the claims in Ball on the merits, we need not [has been found] similar to the requirement of Rule 23(a)(3).” determine whether the claims are also barred by sovereign Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 623 n.18 immunity. (1997). As any claim the class may have had in common threatened to splinter into individualized claims, it was not CONCLUSION error for the district court to refer to the fact that Plaintiffs’ individualized claims predominated over their claims in For all the reasons stated above, we AFFIRM the judgment common. of the district court.

D. Sovereign immunity. The Ball Plaintiffs disavow making any individual capacity claims, and argue only that they are seeking declaratory and injunctive relief against the Government-Defendants in their official capacity. In a suit based on the official capacity of a

11 According to Rule 23(b )(3), an “action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in add ition: ... (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affec ting only individual mem bers, and that a class action is superior to o ther available methods for the fair and efficient adjudication of the controversy.”