to each of you thank you will be glad to hear from you miss maddox may please the court my name is emma maddox and i represent the plaintiffs in this case the issue today is whether congress intended the plaintiffs with serious pollutants on their property could sue the responsible party after they've discovered their harm this issue turns on whether section nine six five eight if circa preempts north carolina's ten year statute of repose section subsection a one of nine six five eight specifies applicable state limitations period shall commence at the federally required commencement date in lieu of an earlier date provided by state law the plain meaning of the term statute of limitations as used in section nine six five eight includes statutes of repose both are limitations periods that have the same effect of barring the plaintiff's claim for her before he has an opportunity to discover his harm this court is not writing on a clean slate in this case traditionally all statutes of limitations operated like statutes of repose and began at the defendant's tortious act all statutes of limitations lacked the discovery rule and this worked when the defendants injury when the defendants hall act and the plaintiff's injury occurred simultaneously however with the development of latent injuries the traditional rule caused great hardships on plaintiffs who found that their claims were time barred before they even had an opportunity to discover their harm the fifth edition of the black's law dictionary published in one nine hundred seventy nine and directly to statutes of limitations thus the term the lack of the term repose in section nine six five eight is unremarkable because the two terms are used interchangeably and equated with each other no federal statute uses the term repose even though at times congress has created statutes of repose the north carolina legislature itself did not use the term repo say but it says limitations it doesn't say the statute of absolutely your honor however a statute speaks from the date of an act meant and in one thousand nine hundred six statute of well to the contrary your honor our argument is that the term statute of limitations in fact meant both statutes of limitations and statutes of repose at the time that the statute at at the time section nine six five eight was  and thus the plain meaning a statute of limitations in one thousand nine hundred six included both limitations periods a court this is in consistent with the traditional rule which was that statutes of limitations operated precisely like statutes of repose are understood to operate today and this is consistent with the fifth edition of the black's law dictionary which was in force of the nineteen i thought it was pretty clear and well settled to be sure judges have been judges and courts and lawyers and law professors have been a loose sometimes in our use of language and have sometimes use understand these technical differences between statutes of limitations and statutes of repose however both of these are considered to be limitations periods with the same effect and in one thousand nine hundred sixty that's that's why i guess i'm challenging you on the effect of a statute to repose there's no tolling there's no preferable consideration once the period of repose is extinguished that's the end of the matter there is no right well your honor that label that is applied is applied primarily by courts and by scholars but congress has never used the term repose and the north carolina legislature did not use the term or pose that congress had the opportunity to use the repose in the in their recommendation the report a recommendation to congress that recommendation discusses separately a statute of limitation instead you are oppose it talks first about a statute of limitations then it says the recommendation is intended also to cover the repeal of statutes of repose congress chose not to take that particular recommendation actually to the contrary your honor the recommendation sets forth one recommendation by the study group the single recommendation that all states adopt the discovery role and then states that this recommendation is also intended to recut to cover the repeal of statutes repose and congress adopted neither of these recommendations congress went farther and created a uniform federal discovery role that would preempt that all of the applicable limitations period that would effectively bar a plaintiff's claim before he has an opportunity to discover his harm the study group itself used the two terms interchangeably referring to policies of repose that underlie statutes of limitations it referred to the statute of repose at issue in this case solely as a statute of limitations it expressed concern and was in fact critical of statutes riposte statutes of repose on the and the specific purpose under section nine six five eight the plaintiffs have an opportunity to discover their harm before state limitations period preclude periods preclude their claim in fact it's clear that  congress was focusing on the precise time period that's at issue in this case the study group recognized that the harm was caused by latency periods of up to twenty to thirty years and it focused on latency and delayed impact as the primary issue it recognized that both of these limitations periods created unreasonable barriers there is no indication and in fact in fact congress purpose and intent would not be served by preempting one and not the other furthermore one of the issues addressed by statutes of repose is to prevent plaintiffs from sleeping on their rights the pla cannot be said to be sleeping on their rights where they do not know and could not reasonably have discovered their harm the passage of time thus becomes a necessary element in these types of claims congress rejected the idea that a plaintiff who is exercising diligence should be nevertheless barred by state limitations period the us congress didn't wait for states it created this uniform federal discovery rule to address this precise problem furthermore it should be noted that there has been some concern in briefings for the the possibility of open ended liability it is simply not an issue in this type of case in fact congress created a new or should have known standard the should have known portion of that standards that standard is objective and therefore puts a check on the possibility of endless liability so that's not a property left on occupied for let's say forty five years and then there's a transaction in that property those the new owner forty years later have a cause of action your honor to the extent that they can prove their prima facia case and meet the substantive requirements of proving that there was property damage from exposure  forward for all lives and being your honor certainly a plaintiff there's a point at which the plaintiff should have known if the brought if the player doesn't become the panel or for forty five years well your hon that's very similar to facts in this case there are plaintiffs who have had who have moved onto the property for there was any indication that the property was contaminated it was essentially sold to the plaintiff doesn't amount to open  only the extent that the plaintiffs as they have established in the complaint in this case can prove the the substantive portions of section nine six five eight to the extent that they have complained that there is  hazardous substance released into the environment from a facility they are entitled to to be applied the should or knew or should have known standard and there is no way that the plaintiffs in this case should have known of the contamination when the statute of repose had already run by the time they moved to land where there was it was sold with a clean a clean deed should we require more of congress your honor in one thousand nine hundred six based on the usage of these two terms and the fact that the term statute of repose was simply not in legislative usage it was used by courts it's never been used by congress before we should not that congress intended for the broad preempted scope in section nine six five eight to apply to bow to statutes of repose room card this is just set back and watch this extraordinary circuit split over this over this that you well to the extent that congressional islands indicates their intent in this case the majority although the federal courts are one to one at present the majority of the district courts have found preemption and on this particular issue that's if congress were going to change the language or amend the statute then it should do so to explicitly exclude statutes of repose not to explicitly include them accordingly  congress has in concert with congressional intent congress would not do so it's simply against congressional purpose because it recognized that both of these limitations periods where i'm reasonable barriers to plaintiffs who were subject to latent toxic torts as these plaintiffs are accordingly congress was providing defendants with certainty in section nine six five eight certainty that defendants would be required to clean up their own pollution the and furthermore the study group report itself used the terms consistently with this historical use and that can be found on the government's brief page a ten and a twenty three accordingly it's it's clear that the use of these terms these terms are both limitations periods and to the extent that they preclude a plaintiff's claim before he has an opportunity to discover his harm it thwarts congressional intent in the of section nine six five eight accordingly for these reasons the plaintiffs respectfully request that this court reverse the order of the district court thank you thank you very much mr murdoch's mr home and will be glad to hear thank you please accord this case involves the district court's application of the most fundamental rule of statutory construction that if a federal statute is clear and unambiguous courts are required to apply the statute as written applying his basic principle to the assertion of federal preemption a state substitutable all the district court correctly dismiss plaintiff's nuisance claim is barred by north carolina's tenure statute  interchangeably the one make an argument that is that it is it being used obviously that argument is has been made in this case your honor i do not believe that argument is consistent with the expressed language that congress used to quote presume that the legislature states in a statute what it means and means in a statute what it says inquiry begins with the statutory text and ends there as well if the text is unambiguous so the question becomes and the focus of this court's determination should be first and foremost the text of the statute is there evidence in this case that there was some misuse  the language that congress chose and the answer is not i don't see how all of it follows quite so neatly if if if legions of lawyers law professors and judges for decades if not centuries have used these two terms interchangeably how can they not be how can the use of statue limitations in the statute not be ambiguous  first your honor looking to the language that congress used it's clear that it is consistent entirely with the definition of statute of limitations it's inconsistent with statute over looking at the statute itself we don't have a definition of statute limiting that begs the question what you do your honor have is the application of the statute first of all you've got repeatedly throughout the statute the references to statutes of limit limitation you have no reference whatsoever to statutes of repose importantly though the context and the and the purpose of the statute is is correctly do as best they can be tell from a limited legislative history is to was first and foremost to address the issue of latency disease that's not at issue in this case secondly and the manner in which it was limitation has no application whatsoever to statutes of repose and thus the entire structure that congress choose in addressing and imposing this minimum discovery rule is only consistent with statutes of limitation it's not consistent with statutes when you say there's no latent disease issue in this case you don't mean to suggest to you that the meaning of this statute depends on whether or and i'm sorry ad i don't believe that there's anything that changes the fact that the study report clearly reflected the distinction between statutes of limitation it came out with two specific recommendations to address both of them which incidentally and as opposing counsel indicated was was a state action so yes congress went  further than was recommended in the study group report in taking action at all but that should not lead to the conclusion or the inference that congress took the additional step to to address every component or potential cause of the problem that's reflected that is reflected in the study report what congress did do was address the principal issue which was the statute limit the effect of the absence and inconsistency of among states with the discovery rule in not having the discovery rule that was the recommendation that the first recommendation that the study group provided which was that all states that have not already done so clearly adopt the rule that an action or a cruise when the plane discovers or should have discovered the injury or disease and its goals that is entirely consistent with precisely what congress did in ninety six fifty eight the second recommendation of the study group was the recommendation is intended also to cover the repeal of statutes a repeal use which in a number of states have the same effect as some statutes of limitation in barring plaintiffs claims before he knows that he has one so a different recommendation made clear it clearly a distinction made that congress was aware of prior to the not going to the statu between statutes of limitation statutes of repose to different remedies for addressing both congress choose one to study group reflects a group's recommendation of two separate actions one of which was adopted modified by the congress taking action itself and pursued the other which was not there is also good reason for congress having taken the action that it did solely to address the discovery period but not statutes of the discovery period for the accrual statutes of limitation again was a clear focus of the study group it was a primary problem that the study group spent the time discussing again the two recommendations made to congress congress adopts one you have the structure of ninety six fifty eight being in a political entirely to statutes of it does not even make sense if you try to use that same language and apply it to statutes of repose because statutes  within statutes riposte it's entirely irrelevant when an action accrues or not you also have congress being more likely to have been reluctant to preempt state substantive law  also have important policy considerations regarding finale guaranteed by statute and as well what i'm sorry what is a common law statute of limitations that really seems like an oxymoron your honor i believe that the the study group report reflected that there were common law and so i'm asking you to step back from the study group report because i think your argument in part is that we don't even get to the study group report the less there's ambiguity in the statute that's entirely ok so i suggest then you don't if you don't provide an answer to my question honor to the extent that there's ambiguity in that term that ambiguity has no pertinence to decision before the court because your is new you're prepared to concede that there's ambiguity in the statute if if th a term in a statute then there is ambiguity in that statute i'm not prepared to concede that there's ambiguity in the statute i believe that it's clear that it's intended to apply to the limitations so if there was actually true is it i mean the original the origin of the of the discovery rule was a judicial imposition on legislative lead in active ambiguous meaning with regard to the particular dispute in the case it's interesting you mention robinson because robinson as you well know was a nine to zero reversal of this court by the supreme court which on the basis of  may please the court daniel tenney for the united states i'd like to start where we left off in terms of what a statute of limitations is and how it can be set out in common law i'm you can look to or two thousand and nine the relevant definition is the same in the one hundred seventy nine version is reprinted on page six of the reply brief and it says that what it is is it requires a claim to be brought within a specific period of simply because of the words but also because of the way it operates if i could just explain with respect to your earlier question a statute of limitations we use that term statute of limitations but it can be set out in common law sometimes some states didn't have legislative annakin instead set the amount of time that a claim was right was live for and said i was instead done through common law now you could have a common law statute of limitations which would say the claim accrues on a particular date and i'm sorry can you give me an example in your brief but when example of a common law court not applying latches but actually saying we here by a males that this cause of action repose that was at issue in some of the alabama cases was a judicially created one that i was not a limitations period it was a riposte period but the point is that asking about what was right but the point is that courts sometimes say you have this many years and  the distinction we're drawing here is between when courts say you have this many years after the right of cruz which is the which is thought of as a statute of limitations and when you say you have in amount of time and then there are other aster be to propose not subject starts from a fixed date known to the defendant substantive rather than procedural all of which are met by this north carolina provision now going back to your question of why we don't think the statute is ambiguous it's not just the three words statute of limitations you look at the way the statute operate the way it operates is by delaying the commencement date or the cruelty of the running of the statute of limitations that is not something that is done with respect to started to propose this court's decision in first united methodist concerned a state state provision that said that that told limitations periods when there was fraudulent concealment by the defendant and this court held that that provision that legislative act meant it didn't even use the word statute of limitations that  ment did not affect the operation of the statute of repose in that case because of repose are not subject to tolling their substantive and not procedural and so what congress did here was congress enacted a provision that delays the commencement date of the statute of limitations that is a discovery will everyone agrees that what they were doing was an acting a discovery rule and discovery rules are something that you have for statutes of limitations statute to propose don't have discovery rules they start to run on that's known to the defendant and we know that particular we can look at the north carolina provision that's at issue in this case there is a statute of limitations it's three years and there's a discovery rule the statute of limitations does not begin to run into the plaint discover their injury under state law and there's also a statute of repose and so the idea that congress would have wanted to say yes we want states to have a discovery rule but if a state has taken the substantive step of saying as a matter of substantive state law we i'm not going to destroy the cause of action might might i'm asking about i'm asking i'm testing i'm trying to test to see just exactly where you draw the line so you say no preemption on forty eight months no preemption on forty two months right and about thirty six when i was getting at what about thirty six months thirty six months no preemption if it was zero months no preempt and that's i don't want to go to zero i don't want to go to zero that's a different set of carolina legislature decided tomorrow we've had enough of these nuisance suits if the federal government wants to take here these brownfields and all of this problem let them take care of it we're going to have a two year statute of oppose because you know the eleventh circuit says or the first circuit says there's no preemption so let's do that they could do that could end congress and that goes to our point because congress did congress was presented with proposals to create a federal cause of action or to make substantive alterations to state law but they did not enact any of those proposals what congress decided was that if the this these state tort actions are going to be state toward actions they're not going to be federal actions and if a state wants to cap damages if a state wants to eliminate the cause of action entirely if a state wants to have a statute a repos the state can do that all we're doing is making a procedural change that we're saying that there has to be a discovery will and that's that's clear from the context but that's also clear from the language because the way the statute operates is to create a discovery will which is something you do for statutes of limitations it does not purport to change substantive law and preempted state law to a greater a stent thing congress has made clear that's the only point we're making on that we're not saying it doesn't preempt state law it does it preempt statutes of limitations that begin on the date when the cause of action accrues and the way it affects them is to delay the date on which the cause of action accrues and in this case that that has a limited effect on north carolina law because north carolina already has a discovery will there were some states that didn't have discovery rules and there were some dates states that it was uncertain whether they were going to have discovery rules and congress wanted everybody to have a discovery will if a state an act of a substantive provision that altered the cause of action in some way including through statute of repose congress simply did not act and act any provision that would do that and the report suggests and if this is accurate that if congress wanted to effect statutes of repose it would repeal them and there's no suggestion that anything in the circle it repeals any provision of state law that's what they would have to have done if interchangeable use of the two terms in one thousand nine hundred six this court returned to the legislative history and in particular congress in the house report notes specifically that it adopts the problem recognized by the study group the problem that the study group stated clearly in its report was that certain state statutes deprive plaintiffs of their day in court that limitations periods that do so are unreasonable barriers to the plaintiff's claim because they preclude his action before he has an opportunity to discover his harm consistent with the general purpose of circle of tagging defendants with the costs of their action and the specific purpose of section discovery rule  a statute of limitations in not to a statute of repose well your honor both the defendant and the government talked about a statute of repose not have having the commencement and discussing a cruel section nine six five eight does not use the word a cruel statutes of limitations as used in section nine six five eight refers to statutes that generally commence statutes of repose commenced at the time of the defendant's last act and this  understanding is consistent if not for all statutes of repose particularly for the statute of repose at issue in this case the north carolina statute of repose is within an article where the first statute of the article in c g s one dash forty six states the periods prescribed for the commencement of actions are set forth in this article furthermore the north carolina legislature placed the statute of repose within a chapter entitled civil procedure and a sub chapter entitled limitations why should congress be expected to use the term repos when the north carolina legislature was not even using the term repose itself and was in fact using term limitations with regard to the statute at issue accordingly the defendant stated that the study group presented to two recommendations and again i would reiterate that this is an incorrect reading of the study group report in fact its it in and discussed a single recommendations recommendation that all states adopt the discovery rule and stated and i quote this recommendation is also intended to cover the repeal of statutes and look at those which have the same effect as statutes of limitations thus it is clear that in order to fully address the problem recognized by congress by the study group commissioned by congress congress would be preempting both limitations periods which would be an unreasonable barrier to the plaintiff's claim furthermore a statute should not be construed in a way that frustrates its purpose and to construe the statute so that congress intended to preempt one limitations period and not the other would frustrate the essential purpose of providing plaintiffs with their day in court in fact statutes of repose are more harmful in this type of case because statutes of repose are more likely to have operational effect on the plaintiffs claims that congress intended to preempt statutes of repose act within the timeframe that the study group recognized of twenty to thirty years statutes of repose have the most effect on these latent toxic torts and the delayed impact that congress understood in the study group report accordingly circle is to be afforded a uniform it's a uniform statute and the supreme court has recognized this feature of circ law and to presume that congress preempted one limitations period and not the other would permit plaintiffs in different states to have different effects on their latent action latent toxic tour actions for example in virginia there is no statute of repose for these types of cases so virginia plaintiffs who could have suffered from the precise injury from the same defendant would be able to bring these claims while victims of latent toxic torts in north carolina are barred from them  your honor there the defendant has not made a tenth amendment argument in this case and furthermore the statute of repose in north carolina would still apply to numerous cases that do not fall within the substantive preempti