*

The Honorable Judith M. Barzilay, Judge, United States Court of

International Trade, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0229P (6th Cir.)

File Name: 04a0229p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

FANNIE BALL, et al.

(02-6289); STEPHEN HEISER,

et al. (02-6311),

Plaintiffs-Appellants,

v.

UNION CARBIDE CORP., et al.,

Defendants-Appellees.

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Nos. 02-6289/6311

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

Nos. 01-00022; 01-00037—James H. Jarvis, District Judge.

Argued: April 27, 2004

Decided and Filed: July 15, 2004 

Before: GUY and GILMAN, Circuit Judges; BARZILAY,

Judge.*

2 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

_________________

COUNSEL

ARGUED: Edmund L. Carey, Jr., BARRETT, JOHNSTON

& PARSLEY, Nashville, Tennessee, for Appellants.

Christopher Landau, KIRKLAND & ELLIS, Washington,

D.C., John T. Buckingham, ASSISTANT UNITED STATES

ATTORNEY, Knoxville, Tennessee, for Appellees.

ON BRIEF: Edmund L. Carey, Jr., George E. Barrett,

BARRETT, JOHNSTON & PARSLEY, Nashville,

Tennessee, for Appellants. Christopher Landau, Susan E.

Kearns, KIRKLAND & ELLIS, Washington, D.C., John T.

Buckingham,ASSISTANT UNITED STATESATTORNEY,

Knoxville, Tennessee, Kevin T. Van Wart, KIRKLAND &

ELLIS, Chicago, Illinois, E. H. Rayson, Thomas M. Hale,

KRAMER, RAYSON, LEAKE, RODGERS & MORGAN,

Knoxville, Tennessee, for Appellees. 

_________________

OPINION

_________________

JUDITH M. BARZILAY, Judge. This is a consolidated

case. The Heiser Plaintiffs are individuals who live or have

lived in or near Oak Ridge, Tennessee, and who allegedly

have cancer or have an increased risk of acquiring cancer or

other diseases. The Ball Plaintiffs are African-Americans

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

Spencer Abraham of the United States Department of Energy
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

3

1

The Ball Plaintiffs no longer ask for damages, Pls.’ Ball Br. at 1-2,

19, even though initially they sought damages along with injunctive relief

and never amended their complaint to that effect. (JA 51, 52.)

Contractor-Defendants argue that the Ball Plaintiffs cannot “amend” their

complaint in their briefs to this court. See Con-Defs.’ Ball Br. at 17. In

any event, the Ball Plaintiffs’ arguments on this issue are without merit,

as explained below. 

and John A. Gordon of the National Nuclear Security

Administration (“Government-Defendants”). Plaintiffs

appeal from a final order granting summary judgment to both

the Contractor-Defendants and Government-Defendants, and

the denial of Plaintiffs’ motion for class certification.

Plaintiffs seek injunctive and equitable relief for medical

monitoring and environmental cleanup, and, in Heiser,

damages.

1

 For all the reasons stated below, we AFFIRM.

BACKGROUND

The federal government established the Oak Ridge

Reservation (“ORR”) as part of the Manhattan Project in

1942. The ORR includes three production facilities, each in

a separate valley. The city of Oak Ridge was established in

the ORR to house thousands of civilian workers and military

personnel. The federal ownership and control of the area

ended when the City of Oak Ridge received a charter of

incorporation from the State of Tennessee in 1959. 

In the early 1940s, African-American workers were

recruited from Tennessee and other southern states to work as

common laborers, janitors, and domestic workers in Oak

Ridge. These workers were housed in a separate camp, which

came to be known as Scarboro, near one of the Oak Ridge

plants, code named Y-12, that enriched uranium and produced

nuclear weapon components. It is undisputed that Scarboro

was established and maintained as a segregated community in

the 1940s. The district court noted that “Scarboro remains a

4 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

predominantly African-American community in Oak Ridge.”

(JA 192.) 

In addition to federal agencies, the following private

contractors operate or have operated the Oak Ridge facilities

and are named as Contractor-Defendants in Plaintiffs’

complaint: the University of Chicago; Monsanto Company;

Union Carbide Corporation; Roane-Anderson Company;

Management Services, Inc.; Eastman Chemical Company;

Eastman Kodak Company; Turner Construction Company;

UT-Battelle, LLC; Martin-Marietta Energy Systems, Inc.;

Lockheed Martin Energy Systems, Inc.; BWXT Y-12 LLC;

and Bechtel Jacobs Company, LLC. (JA 32, 147.) 

In 1992 the state and federal governments collaborated in

forming a panel (Oak Ridge Health Agreement Steering Panel

(“ORHASP”)) to study the health effects of the release of

radioactive and other toxic substances from the Oak Ridge

facilities. The ORHASP periodically disclosed the results of

its ongoing study and held open meetings throughout the

1990s. The study was covered by the news media. 

On January 15, 2000, the ORHASP issued its final report

to the public. The report was dated December 1999. The

ORHASP final report determined:

The results suggest it is likely that some people were hurt

by the releases. The project reports present estimates of

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

the early 1950s, and fetuses carried in the 1950s and

early 1960s by women who routinely ate fish taken from

the contaminated creeks and rivers located downstream

from the ORR.

(JA 1329.)
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

5

The Heiser Plaintiffs claim personal injury from emissions.

Four of the Heiser Plaintiffs allege they have developed

thyroid cancer due to radioactive emissions. The remaining

three allege they are at risk of developing thyroid cancer. 

The Ball Plaintiffs allege discrimination under a number of

civil rights statutes and the Equal Protection and Due Process

Clauses of the Fifth and Fourteenth Amendments to the

United States Constitution. In particular, the Ball Plaintiffs

allege that “Defendants located and maintained, and continue

to maintain, Scarboro in an area known by Defendants to be

the most contaminated and the most vulnerable to ongoing

pollution because of its proximity to the Y-12 plant.” Pls.’

Ball Br. at 13-14. Plaintiffs maintain that as a result, the

housing in Scarboro is less desirable, worth less, and accorded

lower priority in terms of cleanup than other parts of Oak

Ridge. Plaintiffs also maintain that “Defendants, by placing

Plaintiffs in the location of Scarboro and the immediate

environs of the Y-12 plant, created a condition which was

inherently unsafe and unhealthy; and is the proximate cause

of Plaintiffs’ injuries and of their higher risk of injuries,

creating the need for medical monitoring and surveillance.”

Id. at 15. 

Plaintiffs commenced this action within one year of the

date of the release of the ORHASP final report on January 15,

2000.

DISCUSSION

A. Notice and Discovery.

Plaintiffs first challenge the district court’s grant of

summary judgment under Fed. R. Civ. P. 56 on the basis that

the statute of limitations had run on Plaintiffs’ claims.

Plaintiffs argue that the district court should not have granted

the summary judgment without first giving notice to Plaintiffs

and without permitting Plaintiffs discovery as to the statute of

6 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

limitations issue. Pls.’ Ball Br. at 21-25; Pls.’ Heiser Br. at

33, 35-36. Contractor-Defendants counter that a separate

notice was not required because their motion was for

dismissal or, in the alternative, for summary judgment, which

provided notice to Plaintiffs. Con-Defs.’ Heiser Br. at 13-16.

A district court’s decision to convert a motion to dismiss

under Rule 12(b)(6) into a motion for summary judgment

under Rule 56 is reviewed for abuse of discretion. See Shelby

County Health Care Corp. v. S. Council of Indus. Workers

Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir.

2000). 

When deciding on a motion for summary judgment, Fed. R.

Civ. P. 56(f) allows the court to order discovery if it “should

. . . appear from the affidavits of a party opposing the motion

that the party cannot for reasons stated present by affidavit

facts essential to justify the party’s opposition.” Further,

under Fed. R. Civ. P. 12(b), before the district court may treat

a motion to dismiss as a summary judgment motion, it must

give “all parties . . . reasonable opportunity to present all

material made pertinent to” the issue. The Sixth Circuit

interpreted this requirement to mean that it is “serious error”

for a district court to convert the motion sua sponte to a

summary judgment motion without notice to parties and

without further discovery. Helwig v. Vencor, Inc., 251 F.3d

540, 552 (6th Cir. 2001) (en banc). 

Here, the district court did not act sua sponte in converting

the motion to dismiss to a summary judgment motion.

Contractor-Defendants moved for summary judgment in the

alternative. Moreover, as Contractor-Defendants correctly

assert, Plaintiffs responded to the summary judgment motion

by submitting materials outside the pleadings, such as

affidavits. See Con-Defs.’ Heiser Br. at 14-15. Therefore,

Plaintiffs’ insistence that they “genuinely were surprised that

the Court would have any intention to convert the motion,”

Pls.’ Heiser Br. at 34, is not supported by the facts. They had
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

7

notice that the district court might treat the motion as one for

summary judgment because such a motion was actually filed,

and they responded to it. 

Accordingly, the only remaining issue is whether the

district court abused its discretion in denying Plaintiffs’

request for discovery before it granted the summary judgment

motion. 

It is well-established that the plaintiff must receive “a full

opportunity to conduct discovery” to be able to successfully

defeat a motion for summary judgment. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 257 (1986); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“the plain

language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial”); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d

229, 231-32 (6th Cir. 1994) (“[in light of Anderson and

Celotex,] a grant of summary judgment is improper if the

non-movant is given an insufficient opportunity for

discovery”).

The district court’s decision to deny further discovery is,

however, generally unreviewable unless the appellant has

filed “a Rule 56(f) affidavit or a motion that gives the district

court a chance to rule on the need for additional discovery.”

Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.

1995). “Beyond the procedural requirement of filing an

affidavit, Rule 56(f) has been interpreted as requiring that a

party making such a filing indicate to the district court its

need for discovery, what material facts it hopes to uncover,

and why it has not previously discovered the information.”

Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.

2000). 

8 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

The Sixth Circuit generally applies the abuse of discretion

standard to the district court’s decision to deny discovery

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

abuse of discretion for the district court to deny the discovery

request when the party “makes only general and conclusory

statements [in its affidavit] regarding the need for more

discovery and does not show how an extension of time would

have allowed information related to the truth or falsity of the

[document] to be discovered.” Ironside v. Simi Valley Hosp.,

188 F.3d 350, 354 (6th Cir. 1999). It is also not an abuse of

discretion to reject a Rule 56(f) affidavit as insufficient to

support further discovery when the affidavit lacks “any

details” or “specificity.” Emmons v. McLaughlin, 874 F.2d

351, 357 (6th Cir. 1989).

The affidavit in question here was submitted by Plaintiffs’

attorney and included the following statements in support of

the discovery request:

In my opinion, to respond with due diligence,

discharging my responsibilities to the class, to the

materials outside the pleadings which these defendants

urge the Court to consider by converting their motion to

one for summary judgment, would require obtaining the

results of substantial written and document discovery,

and a number of depositions, on the subjects of when

plaintiffs’ claims accrued, and what information was

released by any defendants to members of the public and

when and how such releases occurred, and on a variety of

statements, and agents of defendants, over the years on

the subject of the safety of their operations and their

impact upon the environment surrounding their

operations. Only this type of discovery would produce

an adequate response to the many partial documents, and

partial collections of documents, submitted by

Defendants, who appear upon inspection of the
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

9

documents to have selected some, and omitted others

bearing on the same subjects. 

(JA 508; 1181.) 

Plaintiffs argue that the district court erred because the

affidavit was sufficient and specific. See Pls.’ Heiser Br. at

49. Contractor-Defendants counter that Plaintiffs’ discovery

request does not include any specific statements as to which

“material facts [they] hope[d] to uncover.” Con-Defs.’Heiser

Br. at 18 (quoting Cacevic, 226 F.3d at 488). ContractorDefendants additionally argue that “when plaintiffs’ claims

accrued” is not a discoverable fact, but is a legal question.

See id. 

The district court here stated (without explanation) that

Plaintiffs “have not satisfied the requirements of Rule 56(f).”

(JA 87.) The district court additionally noted, however, that

“even if they had, they have not described any helpful

discovery in light of the fact that it has been publicly debated

since the early 1980s that toxins are present in the Oak Ridge

community.” (Id.) The district court further observed that the

ORHASP final report contained no information “not

previously available to the public.” (Id.) The district court

took judicial notice of “such publicity” under Fed. R. Evid.

201. (JA 88.) 

The district court did not abuse its discretion in denying

Plaintiffs’ discovery request. Plaintiffs’ Rule 56(f) affidavit

does not state how any discovery would have shed further

light on the issue of when the statute of limitations began to

run. Plaintiffs merely hint at concealment on the part of

Defendants with respect to adverse health effects of the

emissions. See discussion, infra. The reality of toxic

emissions from the Oak Ridge facilities has, however, been in

the public domain for some time. Accordingly, as the district

court stated, the discovery requested in Plaintiffs’ Rule 56(f)

10 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

affidavit was “irrelevant” to the issue of statute of limitations.

(JA 88.) 

B. Statute of Limitations.

A district court’s decision to grant summary judgment is

reviewed de novo. Higgason v. Stephens, 288 F.3d 868, 874

(6th Cir. 2002). 

(i) Personal injury claims. 

The ultimate issue in this case is when the statute of

limitations was triggered. Plaintiffs maintain that the district

court erred in granting summary judgment in favor of all

Defendants on the grounds that Tennessee’s one-year statute

of limitations barred Plaintiffs’ claims. Pls.’ Ball Br. at 25;

see also Tenn. Code Ann. §§ 28-3-104(a)(1), (3) (2000).

Plaintiffs argue that the statute did not begin to run with

respect to their personal injury claims until January 15, 2000,

when the final report of the ORHASP was released.

“The statute of limitations commences to run when the

plaintiff knows or has reason to know of the injury which is

the basis of his action.” Sevier v. Turner, 742 F.2d 262, 273

(6th Cir. 1984); Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn.

1995) (the statute is triggered when the plaintiff becomes

“aware of facts sufficient to put a reasonable person on notice

that he has suffered an injury as a result of wrongful

conduct”). “A plaintiff has reason to know of his injury when

he should have discovered it through the exercise of

reasonable diligence.” Sevier, 742 F.2d at 273. The Sixth

Circuit explained the duty to inquire as follows:

[I]f greater than de minimis harm is discernable at the

time of the tortious event, then the time of the event rule

applies . . . [I]f the injured person sustains an injury

which cannot itself be reasonably discovered, or the

cause of which cannot reasonably be discovered, until
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

11

2

Plaintiffs’ attempt to distinguish Hughes on the basis that there was

an admission by the named Hughes plaintiff in her complaint that she had

actual knowledge of the facts sufficiently in advance of her suit is

some time following the tortious event and the running

of the statue of limitations, courts often apply the

“discovery” rule, tolling the running of the statute of

limitations to the date by which the plaintiff reasonably

should have discovered both cause and injury.

Hicks v. Hines, Inc., 826 F.2d 1543, 1544 (6th Cir. 1987)

(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

Cir. 1993) (in defining the concept of due diligence, this court

has “looked to what event should have alerted the typical lay

person to protect his or her rights.” (quoting Dixon v.

Anderson, 928 F.2d 212, 215 (6th Cir. 1991)); Overberg v.

Lusby, 921 F.2d 90, 91 (6th Cir. 1990) (noting that plaintiff

had a duty to inquire when she became knowledgeable about

her medical condition); accord O’Connor v. Boeing North

Am., Inc., 311 F.3d 1139, 1146-48 (9th Cir. 2002) (accrual of

claim must be based on “knowledge” and not “mere

suspicion”). 

As rightly observed by Contractor-Defendants, the public

record here was sufficient to alert Plaintiffs as to a possible

connection between emissions and health risks near Oak

Ridge long before January 15, 2000. The rule in this Circuit

is that “[w]here events receive . . . widespread publicity,

plaintiffs may be charged with knowledge of their

occurrence.” Hughes v. Vanderbilt Univ., 215 F.3d 543, 548

(6th Cir. 2000) (quotation omitted). A plaintiff is charged

with constructive knowledge even when she claims that “she

did not hear or read any of the media reports.” Hughes, 215

F.3d at 548. “The relevant inquiry in [such] cases . . . is an

objective one.” Id. (citations omitted).2 That is, the question

12 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

unpersuasive. See Pls.’ Ball Br. at 41-44. The Hughes court reached its

conclusion about the plaintiff’s possession of constructive knowledge

before noting the admission in the complaint. Hughes, 215 F.3d at 548-

49. 

3With respect to the interpretation of widespread publicity, Plaintiffs

rely on the Ninth Circuit’s decision in O’Connor. See Pls.’ Heiser Br. at

53-55. The O’Connor court held that “[t]he district court erred in

concluding as a matter of law that newspaper reports concerning the

Defendants' facilities were sufficiently ‘numerous and notorious’ to

impute knowledge of them to Plaintiffs.” O’Connor, 311 F.3d at 1152.

The O’Connor court pronounced that the determination of widespread

publicity 

required a fact-intensive examination of the geographic scope of

the circulation of various publications, the level of saturation of

each publication within the relevant communities, the frequency

with which articles on the Rocketdyne facilities appeared in each

publication, the prominence of those articles within the

publication, and the likelihood that a reasonable person living in

Plaintiffs' various communities at the same time as Plaintiffs

would have read such articles. These are all factual questions

unsuitable for summary judgment.

Id. We are of the belief that the O’Connor decision does not announce a

bright-line rule with respect to the nature of publicity about potentially

hazardous conditions like Oak Ridge emissions. We also observe that the

facts in O’Connor are substantially different than the present case. The

O’Connor opinion cited at least three prior studies that undermined the

link between the contaminants and the cancer. The O’Connor court

rightly observed that the media coverage did not “connect [the] dots”

dispersed by unclear scientific reports. Here, on the other hand, an

ambiguity to that degree was not present. There has been no scientific

report negating the link between releases and health risks. 

is whether a typical person would have been aware of a

possible link between emissions and health risks.

3

 

Given that local and national news media repeatedly

covered the issue, and that the ORHASP publicized the

progression of its study since its inception in 1992 and issued

its preliminary results throughout, Plaintiffs should have been
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

13

4

Even that finding had been released in draft form in March 1998 and

reported in local newspapers. The first paragraph of a March 1998

Knoxville News-Sentinel article reads “Releases of radioactive iodine from

Oak Ridge National Laboratory during the 1940s and ‘50s probably

exposed thousands of children to radiation and increased their lifetime

risk of developing thyroid cancer, scientists reported Thursday in

preliminary findings.” Report Ties Releases of Iodine, KNOXVILLE NEWSSENTINEL, March 20, 1998. An Oak Ridger article of the same date had

the headline: “Releases Linked to Thyroid Cancer.” THE OAK RIDGER,

May 20, 1998.

5

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, unreleased, and therefore unavailable and

would remain unavailable.” (Id.) However, as urged by ContractorDefendants, the standard is an objective one and does not relate to what

Plaintiffs’ attorney may subjectively have believed or not believed. 

aware of a potential personal injury claim connected to Oak

Ridge emissions or releases in 1998 or 1999 at the latest,

when the ORHASP preliminary reports became available.

(JA 213, 1391-1401, 1600-1603.) It is true that the ORHASP

final report constitutes the first instance when a definite link

was established with finality. However, Plaintiffs do not

allege that they belong to the two groups “most likely to have

been harmed” by the Oak Ridge releases.

4

 The issue of the

final report did not by itself trigger Plaintiffs’ duty to inquire

under Hicks. Accordingly, Plaintiffs should have raised their

claims sometime in the late 1990s when it became apparent

that they may have had a viable claim.5 

More importantly, none of the Plaintiffs here claim that

they have contracted a disease attributable to the toxic

releases within the one-year statute of limitation period. Only

some of the Heiser Plaintiffs allege they have actually

contracted cancer, while others claim increased risk of cancer.

Yet, there must necessarily be different accrual dates when

the injury complained of is the increased risk of disease as

14 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

6

Indeed, the district court devoted most of its opinion to explaining

why a class certification of these individuals was not appropriate. 

opposed to the disease itself. When the increased risk of

disease is the injury claimed, the threshold of finding a “duty

to inquire” under Hicks is lower. That is, individuals should

know that they are “at risk” as soon as a link between cancer

and emissions becomes apparent. On the other hand, when

the injury is contracting cancer, the claim will accrue when

the plaintiff knew or should have known of the disease, not

just the risk of acquiring the disease. In that event, a plaintiff

must clearly plead that the injury occurred within the statute

of limitations period. Plaintiffs here face a formidable statute

of limitations hurdle. The reason is in part that individuals

not similarly situated became plaintiffs in one and the same

suit.6 It is possible the weaker claims have obscured the

stronger claims. From this vantage point, however, it is

impossible to discern who would have a viable claim,

especially given that no argument was advanced that plaintiffs

were diagnosed with any disease during the limitations

period. The district court noted correctly that “conceivably a

plaintiff with a still viable claim could exist (i.e., a person

who was diagnosed with thyroid cancer within one year of

filing suit).” (JA 88.). This opinion does not address such a

claim. 

On a different note, we find Plaintiffs’ claims alleging the

Contractor-Defendants’ “fraudulent acts” of concealment to

be without merit. Pls.’ Ball Br. at 45. Plaintiffs claim no

specific act of concealment, but underline that a number of

the articles that covered Oak Ridge were equivocal and

contained phrases such as “no harm” from the emissions, “no

link” to cancer, and “no health concern.” Id. 52; Pls.’ Heiser

Br. at 53. Plaintiffs also point to “national security

classification” of information regarding Oak Ridge. Pls.’ Ball

Br. at 38. 
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

15

We recognize that when a government project such as Oak

Ridge is shrouded in secrecy, it may be difficult to collect the

necessary facts to make a case. However, it was well known

that plants in Oak Ridge engaged in nuclear weapons

manufacturing and other nuclear research, that they released

toxic materials, and that such toxic materials may be

hazardous to human health depending on the dosage. (JA

303-12; 988-1001; 1599-1603.) Plaintiffs needed to present

to this court with sufficient clarity and “particularity” what

they claim was fraudulently concealed by government

officials and contractors and how that affected their case.

Dayco v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394

(6th Cir. 1975). We find nothing in the record of this case

that exhibits any concealment motivated by bad faith on the

part of Defendants. We further note that the duty to inquire

applies even when the government may have engaged in

concealment of facts. See Kronisch v. United States, 150 F.3d

112, 121 (2d Cir. 1998). 

(ii) Civil rights claims.

The Ball Plaintiffs additionally argue that the statute of

limitations does not apply because Contractor-Defendants

have a continuing affirmative duty to remedy effects of

exposure to emissions as such effects constitute “vestiges” of

historical de jure racial segregation. Pls.’ Ball Br. at 28.

Plaintiffs charge that “the continuing existence of Scarboro as

a segregated community is attributable (and attributed by the

Amended Complaint) to all Defendants’ unconscionable

actions.” Pls.’ Ball Br. at 29. Plaintiffs attempt to derive

support from a number of school desegregation cases, such as

Freeman v. Pitts, 503 U.S. 467 (1992); Columbus Board of

Education v. Penick, 443 U.S. 449 (1979); and Dayton Board

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

16 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

by Plaintiffs include Wygant v. Jackson Board of Education,

476 U.S. 267 (1986); Fullilove v. Klutznick, 448 U.S. 448

(1980) (including the concurring opinion by Justice Powell);

United Steelworkers of America v. Weber, 443 U.S. 193

(1979);Regents of University of California v. Bakke, 438 U.S.

265 (1978); Hazelwood School District v. United States, 433

U.S. 299 (1977); and Hammon v. Barry, 813 F.2d 412 (D.C.

Cir. 1987).

Contractor-Defendants counter that Plaintiffs’ alleged

exposure to Oak Ridge emissions is not a “vestige” of racial

discrimination. Con-Defs.’ Ball Br. at 19-22. ContractorDefendants alternatively argue that they have no ongoing

affirmative duty to remedy the effects of discrimination by

governmental entities. Id. at 22, 29. Contractor-Defendants

finally argue that, in any event, there is no affirmative duty to

remedy the effects of residential segregation. 

The district court observed that “the Scarboro community

has been integrated since the 1950s.” (JA 89.) The district

court went on to say: “To find otherwise would mean the

statute of limitations would never be tolled unless every black

person left Scarboro.” (Id.) The district court specifically

discounted the de facto discrimination cases regarding school

desegregation finding them “not applicable here.” (Id.) 

The district court is correct. The factual patterns of school

desegregation cases bear little resemblance to the facts alleged

here. Moreover, Plaintiffs do not seek to eliminate the

“vestige” of past discrimination by asking for the

desegregation of Scarboro. See Con-Defs.’ Ball Br. at 20.

“Rather, [they] are seeking remedies for potential personal

injuries and property damage relating to alleged exposure to
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

17

7

See supra note 1, regarding the remedy the Ball Plaintiffs are now

seeking.

Oak Ridge emissions.”7 Id. at 20-21. As ContractorDefendants correctly explain:

[T]he fact that [Plaintiffs’] alleged personal injuries and

property damage might not have occurred (or might not

have been so serious) but for the racial discrimination

that led to the establishment of Scarboro in the first

instance does not mean that the discrimination was the

proximate cause of those injuries and that damage. The

concept of the “vestiges” of discrimination has never

been stretched so far as to encompass anything bad that

happens to someone that might not have happened but

for racial segregation. Under [P]laintiffs’ logic, anything

bad that happens as a result of Scarboro’s location can be

deemed a “vestige” of discrimination, since Scarboro

itself would not exist but for discrimination.

Id. at 21. It would indeed be a stretch to rely on the school

desegregation cases to require Contractor-Defendants to

eliminate any lingering effects of past governmental

discrimination by paying for cleanup and medical monitoring.

The affirmative action cases Plaintiffs reference are

similarly not dispositive. Those cases stand for the

proposition that affirmative action is not prohibited by the

Constitution or the federal civil rights statutes. See ConDefs.’ Ball Br. at 26-27. These cases do not, however, go as

far as to interpret the Constitution and the federal civil rights

statutes as mandating government contractors to remedy past

discrimination. That is, contractors have no affirmative duty

to eliminate current effects of past discrimination by

governmental entities. 

18 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

8

Because we find the Ball Plaintiffs’ civil rights claims without merit

in any event, we need not reach the issue of which statute of limitations

applies to the claims: the four-year statute of limitations of 28 U.S.C.

§ 1658, the one-year Tennessee statute, or another statute. 

On the issue of affirmative duty, the case Plaintiffs rely on

is distinguishable. In Hills v. Gautreaux, the Supreme Court

sustained “[a]n order directing HUD to use its discretion

under the various federal housing programs to foster projects

located in white areas of the Chicago housing market,”

finding that such an order would be “consistent with and

supportive of well-established federal housing policy.” 425

U.S. 284, 301 (1976). HUD was ordered to remedy its own

“wrong” of “confin[ing black tenants] to segregated public

housing.” Id. at 299. In this case, there is no allegation here

that Contractor-Defendants initiated the segregation.

Accordingly, we find that neither the United States

Constitution nor federal civil rights statutes afford the relief

Plaintiffs ask.8 

C. Class certification.

Plaintiffs next challenge the district court’s denial of their

class action certification motion. In Heiser, Plaintiffs sought

to certify as a Rule 23(b)(2) or Rule 23(b)(3) class: 

[P]ersons who lived in Oak Ridge, Tennessee, or

otherwise resided in a nearby geographic area under the

influence of the Defendants from 1943 to the present

who have not yet contracted thyroid cancer but who have

been exposed and put at risk by Defendants’ act.

In Ball, Plaintiffs sought to certify as a Rule 23(b)(2) class: 

[A]ll individuals of African American descent who

currently live in and/or currently own property in
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

19

9

Rule 23(a) reads as follows: 

Prerequisites to a Class Action. One or more members of a class

may sue or be sued as representative parties on behalf of all only

if (1) the class is so numerous that joinder of all members is

impracticable, (2) there are questions of law or fact common to

the class, (3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the

interests of the class.

Fed. R. Civ. P. 23(a). Moreover, an “action may be maintained as a class

action if the prerequisites of subdivision (a) are satisfied, and in addition:

. . . 

(2) the party opposing the class has acted or refused to act on

grounds generally applicable to the class, thereby making

appropriate final injunctive relief, or corresponding declaratory

relief with respect to the class as a whole . . . .”

Fed. R. Civ. P. 23(b)(2).

Scarboro and/or once lived in the Scarboro community

and continue to frequently visit the Scarboro community.

(JA 203.) The district court first emphasized that class action

certification is generally not appropriate in mass tort cases.

The district court further denied the motion because it found

that Plaintiffs failed to show commonality and typicality of

claims, and failed to meet the adequate representation

requirement under Fed. R. Civ. P. 23(a).9 

Plaintiffs charge that the district court abused its discretion

when it ignored “five separate sworn affidavits or declarations

submitted” in support of their class certification motion. Pls.’

Heiser Br. at 57. Plaintiffs further charge that the district

court abused its discretion by treating the Ball Plaintiffs as a

subclass of the Heiser Plaintiffs because, where race

discrimination is alleged and injunctive relief is sought, class

certification is appropriate. See Pls.’ Ball Br. at 53. Plaintiffs

also challenge the district court’s focus on individualized

issues of proof with respect to commonality because they

assert that the predominance analysis is inappropriate in

20 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

analyzing commonality. See id. at 56. Plaintiffs explain that

“[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

requirements are satisfied.” Id. at 57 (citing Mayer v. Mylod,

988 F.2d 635, 640 (6th Cir. 1993)). Plaintiffs identify the

commonality issue as Defendants’ obligation to remedy

present discriminatory effects of past discrimination, and the

typicality issue as Defendants’ same unlawful conduct being

directed at both Plaintiffs and the other members of the

putative class. See id. at 54, 59. 

Contractor-Defendants claim that the Ball case “is

essentially the Heiser case, dressed up as a civil rights case.”

Con-Defs.’ Ball Br. at 32 (emphasis in the original).

Contractor-Defendants maintain that the true remedy sought

here is compensation for personal injury, property damage,

and medical monitoring, all of which are individual remedies.

See id. at 36. 

As to the proposed class in Heiser, the district court found

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

individual Plaintiffs’ claims were not typical of the claims of

the class as a whole because “many of the class members

were not even living in Oak Ridge in the 1950s, which is

when the most significant emissions complained of occurred.”

(JA 78.) For similar reasons, the district court also found that

Plaintiffs were not adequate representatives of the class.

As to the proposed class in Ball, the district court observed:

Even if it is assumed there are common issues with

regard to de jure segregation and whether vestiges of that

segregation remain in Scarboro, those questions do not

predominate over the innumerable individualized

questions that would exist with respect to each plaintiff.

Each member of the proposed class lived in Scarboro for
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

21

10For that reason and contrary to Plaintiffs’ assertion, the district

court could not have certified the Rule 23(b)(2) class without first finding

that all the requirements of Rule 23(a) have been satisfied. The corollary

is that the district court need not have reached the Rule 23(b) issues after

finding the requirements of Rule 23(a) have not been met.

a discrete period of time and was exposed to mercury or

other toxins in a discrete way. Some may have lived

there for fifty or more years and some for a week or less.

Some were there in the late 1950s when emissions were

greatest and some were not. A few may have consumed

milk from a backyard farm animal in the 1950s, most did

not. As in Heiser, each individual plaintiff, if he or she

has a claim, has a highly individualized claim based on

his or her total exposure time, exposure period, medical

history, diet, sex, age, and a myriad of other factors. The

court finds that the individualized issues far outweigh

any common ones.

(JA 80-81.) The district court then pointed to differences

among the named Ball Plaintiffs, such as the duration of time

they lived in Scarboro or their property ownership. (JA 81.)

The district court opined that, therefore, “there is no ‘typical’

Scarboro resident for purposes of Rule 23.” Finally, the

district court noted that the proposed class in Ball, as in

Heiser, was too “vague.” (JA 82.)

The district court’s decision to deny class certification is

reviewed for abuse of discretion. See Sprague v. Gen. Motors

Corp., 133 F.3d 388, 397 (6th Cir. 1998) (en banc). The

district court must “rigorously” analyze the requirements of

Rule 23. See id. (citation omitted). “No class that fails to

satisfy all four of the prerequisites of Rule 23(a) may be

certified, and each class meeting those prerequisites must also

pass at least one of the tests set forth in Rule 23(b).”10 Id.

(citation omitted).

22 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

Here, the district court did not abuse its discretion in

denying class certification. The district court analyzed the

Rule 23(a) requirements in concluding that Plaintiffs did not

have claims common and typical to the class. The district

court was correct in treating the Ball plaintiffs as a subset of

the Heiser plaintiffs because of the same underlying claim of

environmental injury in both. The Ball case is “simply not a

case about racial discrimination in the abstract, but a case

alleging that racial discrimination caused environmental

injuries.” Con-Defs.’ Ball Br. at 40. Even though liability

issues may have been common to the putative class, by

seeking medical monitoring and environmental cleanup of

property, Plaintiffs have raised individualized issues. Each

individual’s claim was for thatreason necessarily proportional

to his or her exposure to toxic emissions or waste. Similarly,

the Heiser Plaintiffs’ claims depended on their period of

residency in Oak Ridge and levels of exposure. Also, the

“named plaintiffs who already have thyroid cancer have

fundamentally different interests than those named and

unnamed plaintiffs who do not.” Con-Defs.’ Heiser Br. at 47

(emphasis in the original). Indeed, the Heiser Plaintiffs who

had thyroid cancer were not even members of the proposed

class, which was defined as consisting of individuals who

were at risk of developing the cancer. 

Furthermore, Plaintiffs’ reliance on Sterling v. Velsicol

Chemical Corporation, 855 F.2d 1188, 1197 (6th Cir. 1988),

is misplaced. In Sterling, this court observed that “the mere

fact that questions peculiar to each individual member of the

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

can be determined on a class-wide basis because the cause of

the disaster is a single course of conduct which is identical for

each of the plaintiffs, a class action may be the best suited

vehicle to resolve such a controversy.” Id. Here, however,

there are multiple Defendants with presumably differing
Nos. 02-6289/6311 Ball, et al. v. Union

Carbide Corp., et al.

23

11According to Rule 23(b)(3), an “action may be maintained as a

class action if the prerequisites of subdivision (a) are satisfied, and in

addition: 

. . .

(3) the court finds that the questions of law or fact common to the

members of the class predominate over any questions affecting only

individual members, and that a class action is superior to other available

methods for the fair and efficient adjudication of the controversy.” 

liability levels, if any. Accordingly, there is no “single course

of conduct.” Therefore, Sterling is distinguishable on its

facts. Moreover, Sterling affirmed the class action

certification, emphasizing the district court’s discretion in

making such decisions. 

Finally, the fact that the district court’s discussions of the

commonality and typicality issues were intertwined is not

fatal. We have recognized that the “commonality and

typicality requirements of Rule 23(a) tend to merge.”

Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir.

1998). Plaintiffs additionally charge that the district court

should not have used the term “predominance” found in Rule

23(b)(3) in its analysis of commonality and typicality.11

However, “the predominance requirement of Rule 23(b)(3)

[has been found] similar to the requirement of Rule 23(a)(3).”

Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 623 n.18

(1997). As any claim the class may have had in common

threatened to splinter into individualized claims, it was not

error for the district court to refer to the fact that Plaintiffs’

individualized claims predominated over their claims in

common. 

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

24 Ball, et al. v. Union

Carbide Corp., et al.

Nos. 02-6289/6311

defendant, the real party in interest is the United States

government and the suit is subject to governmental defenses

including sovereign immunity. Kentucky v. Graham, 473

U.S. 159, 166-67 (1985). Even so, federal courts have

jurisdiction to provide prospective injunctive relief against the

unconstitutional actions of federal officers. Bell v. Hood, 327

U.S. 678 (1946). Plaintiffs somewhat disingenuously argue

that “this action is virtually entirely, if not exclusively, for

injunctive relief.” The prayer for relief, however, includes

requests for declaration of liability for all future costs of

removing contamination, injunctive relief in the form of an

order directing abatement and disclosure of information, and

admission of wrongdoing and a public apology for violating

Plaintiffs’ constitutional rights. Because we affirm the

dismissal of the claims in Ball on the merits, we need not

determine whether the claims are also barred by sovereign

immunity.

CONCLUSION

For all the reasons stated above, we AFFIRM the judgment

of the district court.