* Th e Honorabl e Judi th M. Barz il ay, Judge, Unit ed Sta tes Court of Internati onal Trade, sitti ng by designation.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0229P (6th C ir.) File Name: 04a02 29p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

F ANNIE B ALL , et al. (02-6289 ); S TEPHEN H EISE R , et al. (02-6311), Plaintiffs- Appellant s,

v.

U NION C ARBIDE C ORP ., et al., Defenda nts-Appe llees. X - - - -

> , - - - - - N 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 GI

LMAN, Circuit Judges; BARZI LAY, Judge. * 2 Ball, et al. v. Union Carbide Cor

p., et al. Nos. 02-6289/6311

_________________ COUNSEL

ARGUED: Edmund L. Carey, Jr., BARRETT, JOHNSTON & PARSLEY, Nashville, Tennessee, fo r Appella nts. Christopher

Landau, KI

RKLAN D & ELLIS, Washington, D.C., John T. Buckingham, ASSISTANT UNI TED STATES ATTORNEY, Knoxville, Tennes see, for Appel lees

. ON BRIE F: Edmun d L. Carey, Jr., Geor ge E. B arrett, BARRETT, JOHNSTON & P ARSLEY, Nashv ille
, Tennessee, for Appellants. Christopher Landau, Susan E. Kearns
, KIRKL

AND & ELL

IS, Washington, D.C., John T. Bucking ham, ASSISTANT

UNITED STAT ES ATTORNEY
, Knoxville, Te nnessee, Kevin T. Van Wart, KI RKLAND & ELL IS, Chicag o, Ill inois, E. H. Rayson, Thomas M. Hale, KRAMER, RAYSON, L EAKE, ROD GERS & M ORGAN, Knoxville, Tennessee, for Appellees.

_________________ OPINION

_________________ JUDITHM. BARZIL

AY, Judge. This is a consolidated

case. The Heiser Plaintiff s are ind ividualswho live or

have lived in or near Oak Ridge, Tennessee , and who a lleged

ly have cancer o r have a n incr eased r isk o f acqui ring c ancer or other diseases. The Ball Plaintiff s are Af ric an-Am ericans who live or have lived in a community

known as Sc arboro i

n Oak Ridge. Pl aintiffs

c l aim that they have be en harmed throu ghexposure to radioactive and other toxic substances

over the period when nuclear weapons wer e manufactured

in Oak Ridge. D efenda

nts are private

contractors of the United States government that operate or have ope r ated n uclear weap ons manufacturing and resear ch facilities in the Oa

k Ridge Reservation

(“Contractor-Defendants”), a nd Secretary Spencer Abraham of the United States Department of EnergyNos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 3

1 The Ba ll Plaint iff

s no longe r ask for d ama ges, Pls.’ B all Br. at 1- 2, 19, even though init ially they sought damages along with injun ctiv e reli ef and never amended their c omp laint to that e ffect. (JA 51, 5 2.) Co ntracto r-De fenda nts argue t hat the Ba ll Plai nti ff

s can not “ amend” their complaint in their br iefs to this co urt. See Co n-D efs.’ Ba ll Br. at 17. In any event, the Ba ll Plaintif fs’ argum e nts on this issu e are w ithout m erit,
as exp lained belo w. and John A . Gord on of the N ational N uclear Security Admini s tration(“Government-Defendants”). Plaintiffs appeal from a final order g ranting summary judgmen t to both the Contractor-Defendants and Government-Def

endants, and the denial of

Plaintiff s’ moti on for class certification. Plaintiffs s eek

injunctive and equitable relief for medical monitoring and environmental clean up , and, in Heiser
, damage s. 1 For all the reasons stated below, we AFFIRM

.

B ACKGROUND

The federa

l gover nment establis hed th e Oak R idge Re servation

(“ORR”) as part of the Manhattan Project i n 1942. The ORR includes three producti on facil ities, ea ch in

a se pa ra te va ll ey. Th e c it y o f Oak Ridge was es tablished in the ORR to house

thousands of civilian workers and military personne l. The fed

eral o wnership and control of the area ended wh en the City of Oak Ridge r eceived a charter of incorporation from the State of Tennessee in 1959.

Inthe early 1940s, A frican-American work e rs were recruited from Tennessee and other southern states to work as

commonlaborers, janitors, and domestic workers in Oak Ridge. These workers were housed in a separa te camp, which

cameto be known as Scarboro, near one of t he Oak Ri dge plants, code named Y-12, that enriched uranium and pr oduce d nuclear weapon components. It is undisputed that Scarboro

was established and maintained as a segr egate d community

in the 1940s. The

district c ourt note d that “Sc arboro r emains a 4 Ball, et al. v. Union Carbide Cor

p., et al. Nos. 02-6289/6311

predominantly

African-American

community in Oak Ridge.” (JA 192.)

Inaddition to federa

l agenc ies, the f

ollowing private contractors operate

or have operated theOak Ridge facilities and are named as Contractor-Defe ndants in Plai ntiffs’ complain t: th e U ni ve rs it y of

Ch ic ag o; Mo ns an to Co mp an y; UnionCarbide Corporation; Roane

- An de rs on Co mp an y; Management

Services, Inc. ; E as tm an Ch em ic al Co mp an y; EastmanKodak Company; Tur ner Co ns tr uc ti on Co mp an y; UT-Battelle, LL C; Martin-Marietta Energy Systems, I

nc.; Lockheed Martin Ener gy

Syst ems, I nc.; BWXT

Y-12 L LC; and Bechtel Jacobs Company , LL C. (JA 32, 147.)

In1992 the state and federal gover nments co ll aborate d in forminga panel (Oak Ridge Health Ag reement Steering Panel (“ORHASP”)) to stu dy the health effects of the release of radio acti ve and ot her to xic s ubst ances f rom th e Oak R idge facilitie s. The ORHASP periodically disclosed the r esults of its ongoing study

and held open meetings thr oughoutthe 1990s. The study was cove red by the ne

ws media.

OnJan uary

15, 2000, the ORHASP issued its final report to the public. The report was dated De cember 19 99. The ORHASP final report determined:

The results su

gges t it is likely that some people were hurt by the rele ases. The project reports present estimates of the number of p e ople who c ould have become i ll as a result of exposure to the ORR environmental p ollutants. Two groups were mostlikely to have bee n harmed: local children drinking milk from

a “backy ard” cow or

goat in the early 1950s, a

n d fetus es carried in the 1950s and early 1960s by women who

routinely ate fish taken from the conta min ated creeks and rivers located downstre am from the O RR.
(JA 1329.)Nos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 5

The Heiser Plaintiff

s claim pe rsonal in jury from emis sions. Four of the Heiser Plaintiffs allege th ey have developed th yr oid cancer due to radioactive emissions. The rema ining three allege they

are at risk of developing thy roid cancer.

The Ball Plai ntiff

s alle ge discrimination under a number of civilrights statutes and the EqualProtectionand Due Pr ocess Clauses of the Fi f

th an d Fourteenth Amendments to the United States Constitution. In particular, the Ball Plaintiffs allege that “Defendants located and maintained, and c ontinue to maintain, Scarboro in an area known by Defe

ndants to be the most conta

minated a nd th e m ost vulnerable to ongoing pollution be ca us e o f i ts pr ox im it y t o the Y-12 plant.” Pls.’ Ball Br. at 13- 14. Pla intiffs maintain that as a result, the housing in Scarboro is less de si rable, worth less, and accorded lo wer priority in terms of clea nup than other parts of O a k Ridge. Plaintiffs also maintain that“Defendants, by placing Plaintiffs in the loca tion of Sca rboro an d the immed

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

unsafe and unhealthy ; and is the proximate caus e of Plaintiffs’ injuries and of their higher risk of injurie s, creating the need for me dic al monitoring and surveillance.” Id. at 15.

Pl aintiffs commenc ed this action within one y ear of t h e date of the release of the ORHASP final report on January 15, 2000.

D ISCU SSI ON

A. Notice

and Discov

ery

. Plaintiffs first cha

llenge the dist ric t court’s grant of summary judgment under Fed. R. Civ. P. 56 on the basis that the statute of

limitations

had run on Plain

ti ffs’ cla ims. Plaintiffs argue that thedistrict c ourt shoul d not have granted the summary judgme

nt without first giving notice to Plaintiffs and without permitting Plaintiffs discovery a s to the statute of 6 Ball, et al. v. Union Carbide Cor

p., et al. Nos. 02-6289/6311

limitations issue. Pls.’ Ball Br. at 21-25; Pls.’ Heiser Br. at 33, 35 -36. Contract

or-Def endants c ounter that a sepa rate notice was not required because their motion was for dismissal or, in the alternative, for summary judgme

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

A district court ’s decis ion to convert a moti on to dismiss under Rule 12(b )(6) into

a motion for su

mm ary judg

ment under Rule 56 is reviewed for

abuse of discretion. See Shelby County Health Care Corp. v. S. Council of Indu s. Wo rk ers Health & W

elfare Trust Fund , 203 F. 3d 926, 931 (6th Cir. 2000).

Whendeciding on a

motion for summary

judgmen t, Fed. R. Civ. P. 56(f) allows the court to order dis covery if it “shou

ld

. . . appear from the affidavits of a party opposing

the motion that the p arty cannot f or reas ons state d presen

t by affida vit 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 su mmary judgmen t motion, it mu st give “a ll pa rt ie s .

. . re as on ab le op po rt un it y to prese nt all material made per

tinent to” the issue . The Sixth Cir cuit interpreted

this requ irement t o mean tha

t it is “serious error” for a district court to convert the m otion sua sponte to a summary judgment motion without notice to p art ies and

w ithoutfurther discovery

. Helwig v. Vencor, Inc. , 251 F.3d 540, 552 (6th Cir. 2001) ( en banc ).
Here, the districtcourt did not act sua sponte in converting the mo ti on to di sm is s t o a su mm ar y j udgmen t motion. Contractor-Defendants moved for summary judgme

ntin the alternative. Moreove r, as Contra ctor-De fendant s corre ctly assert, Plaintiffs responded to the summary judg

ment motion by s ubmitting materials outside the pleadings, such a s
a ffidavit s. See Con-Defs.’ Heiser Br. at 14-15. Therefor e , Plaintiff s’ insistence that they “g enuinely wer e surprised that the Co urt would have any intention to convert the motion,” Pls.’ Heiser Br. at 34, is not supported by the facts. They

hadNos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., 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 re sponded to it.

Ac co rd in gl y, t he only remaining issue is whether the d istri ct court ab used its dis cretion

in deny ing Plain tiffs’ request for discovery

before it granted the summary

judgment motion.

It iswell-established that the plaintiff must receive “a full opportuni ty to conduct discovery

” to be able to s uccessf

ully defeat a motion for summary judg ment. See Ande

rso n v. Li berty Lobby, Inc. , 477 U.S. 2 42, 257 (1 986); see a ls o CelotexCorp. v. Ca trett , 477 U.S. 317, 322 (1986) (“the pl ain langua ge of Rule 56 (c) ma ndates the entry of summar y judgmen t, after adequate time for

discovery a

nd upon motion, againsta party

who fail s to make a show ing suff icient to establish the existen

ce of an element e ssential t

o that party's case, and on which that party will bea r the burden of

proof at trial”); White’s Land

i ng Fisheries, Inc. v. Buchholzer , 29 F.3d 229, 231-32 (6th Cir. 1994) (“[in l ight of Anderson and Celotex ,] a grant of summary judgme nt is improper if the non-movant

is give n an insufficient opportunity for discovery” ).

The district court’s decision to deny f urther discove ry

is, however, g enera lly unreviewable unless the appellant has filed “a Rule 5 6(f) af

fidavit or a motion that gives the district court a chanc e to rule

on the nee d for add

iti on al discovery.” Plott v. Gen. Motors Corp. , 71 F. 3 d 1190, 1196 (6th Cir. 1995). “Bey

ond the procedural requirement of filing a n affida vit, Rule 56(f

) has bee n inte rprete d as requ

iring that a party making such a fi li ng indic ate to the district c ourt its need for discover

y, what material facts it hopes to uncover, and why it has not previously discovered the information.” Cacevic v. City of H

azel Park, 226 F.3d 483, 488 (6th Cir. 2000). 8 Ball, et al. v. Union Carbide Cor

p., et al. Nos. 02-6289/6311

The Sixth Circuit generally appliesthe abuse of discretion standard to the district court’s decision to deny discove ry whether such req uest was made on a

motion or by a

Rule 56(f) affidavit. See Plott , 71 F.3d a

t 1 196-97 . It is not an abuseof discretion for the district court to deny the discovery request whe n t he party “

makes only g eneral and conclusory sta tements[in its affi davit] regarding the need

for mo r e discovery and does not

show how an extensi on of time would have allowed i

nformati on relat

ed to the truth or falsity of the [document

] to be discovered.” Ironside v. Simi Valley Hosp.
, 188 F.3d 3 50, 354 (6 thCi r. 1 999 ). It is also not an abuse of discretionto reject a Rule 56( f) affi davit as in sufficie

nt to support further discovery

when the affidavit lacks “any details” or “specificity .” Emmon s v. McLaughli n , 874 F.2d 351, 357 (6th Cir. 1989).

The affida

vit in question here wa s submitted by Pl aintiffs ’ attorney and included the following statemen ts in support of the discovery

request :

Inmy opinion, to re spon d with due diligence, discharging

my responsibilities to the class, to the materia ls outside the pleadi

ngs whic h these de fendant s urge the Court to consider by converting their motion

to

one for summa

ry judgmen t, would require obtaining the resultsof substa

ntial writ ten and do cument di sc o ve ry, and a number of depositions, on the subjects of whe n plaintiff s’ claims accrued, and what information w as released by a ny d efenda nts to membe

rs of the public and when and howsuch releases occurred, and on a variety of statemen ts, and agents of defendant s, ov er the ye ars on the su bj ec t o f t he sa fe ty of the ir opera tions and t

heir impact upon the e n vironmen t surroun

ding the ir operati ons. Only

this ty pe of disc overy

would produce
anadequa te response to the many partial doc uments, and partial co llections of documents, submitted by Defend ants, who ap pear upon inspection of theNos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 9

doc uments to have selected some, and omitted othe r s bearing on the same subjects.
(JA 508; 1181.)

Plaintiffs argue

that the dis trict court erred because the affida vit was suff icient an d sp ecif ic. See Pls.’ Heiser Br. at 49. Contract

or-Def endants c ounter that Plaintif fs’ discovery request does not include any

specific statemen ts as to which “material facts [they] hope[d] to uncover.” Con-Defs

. ’ He iser Br. a t 18 (quo ting Cacevic , 226 F.3d at 488). ContractorDefend ants additiona

lly a rgue that “whe

n plaintif fs’ clai ms accrued”is not a discover able fact, but is a legal question. See id.

The district c ourt her

e st ated ( without explanation) that Plaintiffs “have not satisfied the requirements of Rule 56(f).” (JA 87.) The district c ourt addi tionally noted, however, that “even if they had, they

have not described a

n y helpful discovery in light of the fact that it has been publicly debated since the ear

ly 1980s thattox ins ar e prese nt in the Oa k Rid ge community.”

(Id.) The district

court further observed that the O RHASP final report contained no information “n o t previous ly

available to the public.” (Id.) The district court took jud ici al notice of “such publicity ” under Fed. R. Evid. 201. (JA 88.)

The district c ourt did not abuse its discretion in denying Plaintiffs’ discovery re quest. Plaintiffs’ Rule 56(f) affida vit does no t s ta te ho w a ny d iscovery would ha ve shed further light on the issu

e of whe n the statu

te of limita

tions beg an to

run. Plaintiff

s merely hint at concealment on the part of Defend ants with respect to adverse health effe cts of the emissions. See discussion, infra

. Th e realit y of toxic emissions from the Oak

Ridge facilities has, however, been in the public domain for s ome time. Accordingly , as the district court stated, the discovery re quested in Plaintiffs’ Rule 56(f) 10 Ball, et al. v. Union Carbide Cor

p., et al. Nos. 02-6289/6311

affida vit was “irrele

vant” to t he issue o f statute

of limitati ons. (JA 88.)
B. Statute of

Limitations.

A district c ourt’s de cis ion to grant s ummary judgmen t is reviewed de novo

. Higgason v. Stephens , 288 F.3d 868, 874 (6th Cir. 2002).
(i) Personal injury claims

. The ultimate is sue in this c ase is when the statute of limitations was triggered. Plaintiffs maintain that the district court erred in granting sum

ma ry judgmen

t in favor of all Defend ants on the grounds that Tennessee’ s one-y ear sta tute of limitations barred Plaintiffs’ claims. Pls.’ Ball Br. at 25;

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

. Pla intiffs argue that the statute did not begin to run wit h respect to their personal injury c laims until January 15, 2000, when the final report of the ORHASP was released.

“The statute of limitation s comm ences to run when the plaintiff knows or has re aso n 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 fact s suffici ent 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 discovere d it through the exercise of

re a sonable

diligence.” Sevier , 742 F.2d at 273. The Sixth Circuit explained the duty to inquire

as follow s: [I]f greater than de minimi

s harm is dis c erna

ble at the time of the tor

tious eve nt, then the time of t

he even t rule applies . . . [I]f the i njured person sustains an injury whichcannot itself be reasonab ly discovered, or the

cause of which cannot reas onab ly b e discove red, unti lNos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 11

2 Plaintiffs’ att empt to disti nguish Hu ghes on the basis that there was

an admission by the named Hu ghes plainti ff i n her complaint that she had actual knowledge of

the f acts s uff icie ntl y in ad vanc e of he r suit is some time following th e torti ous event and the running of the statue

of li mitatio ns, courts often apply the “d is co ve ry” rule, tolling the run ning of the statute of limitations to the dat e by

which the

plaintiff reasona bly sh ou ld ha ve di sc ov er ed bo th ca us e a nd in ju ry.

H icks v. Hines, Inc. , 826 F.2d 1543, 1544

(6th Cir . 1987 ) (quotations omitted) ; see Mich. United Food & Commercial Work ers Unions &

Drug & Mercant il e Employees Joint Health &Welfare Fund

v. Muir Co. , 992 F.2d

594, 600 ( 6th Cir. 1993) (in definingthe concept of due diligence, this court has “looked to what event should have alerted the typic al lay person t o protect his or her rights.” (quoting Dixon v. Anderson
, 928 F. 2d 212, 215 (6th Cir . 1991)); Overberg v. Lusby
, 921 F.2d 9 0, 91 (6th C ir. 1990)(noting that pla inti ff had a duty to inquire when she became knowledgeable a bout her medical c ondition) ; ac cord O ’Connor v . Boeing No rth Am., Inc. , 311 F.3d 1139, 1146-48 (9th Cir. 2002) (accrual of claim must be based on “k nowledge” and not “mere suspicion”).

As rightly

observe d by

Contract or-Def endants, the public record he re was s ufficie

nt to aler t Plaintiff s as to a po ssible connection

between e missio ns and health risks near Oak Ridge long before

January 15, 2000. T

he rule i n this Circuit is th a t “ [w ]h er e e ve nt s r ec ei ve

. . . w id es pr ea d p ub li ci ty, plaintiffs may

be char

ged wit h knowled

ge 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 nothear 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 Cor

p., et al. Nos. 02-6289/6311

unpersuas ive. See P ls.’ Ball Br. at 41-44. The Hu ghes cou rt reach ed its concl usi on about th e plain tif f’s possess ion of cons truct i ve knowledge before noting the admissi on in the com plaint. Hughes , 215 F. 3d at 548- 49.

3 W ith res pect to t

he i nter pret ati on of wides pread pub licity, Plaintiffs rely on the Ninth Circuit ’s decisi on in O’Connor

. See Pls.’ Heiser Br. at 53-55. The O’Conno r cou rt held th at “[t]he d istrict cou rt erred in concluding as a ma tter of law that n ewspaper reports concerning the Defend ants' faci lit ies wer e suff iciently ‘num erou s and noto rious’ to impu te knowl edge of

th em t o Plaint iff

s.” O’Connor , 311 F. 3d at 1152. The O’Connor court pronounced that the determinati on of wi de spread pub licity

require d a fa ct- int ensi ve exa mination of the geo grap hic scope of the cir culati on of variou s publ ications , the l evel of sat urat ion of each publi cati on within the re levant communiti es, t

he fre quency with which arti cles on the Rocketdyne faci lit ies appear ed in each publication, the promi nence of t hose a rticle s withi n the publication, and the l ikel ihood that a reaso nab le per son living in Plaintiffs' various com munities at the same time as P la intiffs

wou ld have rea d such a rticl es. These are all f actual questi ons unsuitab le for sum mary j udgm ent.

Id. W e are of th e belie f th at the O’Connor decisi on does not ann ounce a brigh t-l ine ru le with resp ect to the nature of pub licity abo ut po tentially hazardous conditi ons li ke Oak Ridge emis sions . We also observe that the facts in O’C onn or are substanti ally dif ferent t han the present ca se. The O’Connor opinion cited at l east three pri or studies t hat undermined the linkbetwe en the c ontam inants an d the c ance r. The O’Connor court rightly observed t hat the media c overag e did n ot “ con nec t [the] dots” dispers ed by uncl ear sci enti fic reports . Here, on the other hand, an amb iguity to that degree was not present . There has been n o scientific
repo rt nega ting the link b etwee n relea ses and health risk s. is whether a ty

pical person would have been aw are of a possible li

nk betwe en emissions and he alth risks

. 3

Giventhat local and national ne ws media re peatedl y covered the issue , and that

the ORHASP

publiciz ed t he progression

of its study since its inception in 1992 and issued its prelimina

ry resultsthroughout, Plaintiffs should have beenNos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 13

4 Even that

finding had been released in draf t form in March 1998 and

r eport ed in l ocal newspa pers. The fi rst

parag raph of

a March 1998 Kn oxv il le News-S entin el art icl e reads “Rel eases of r adioac ti ve i odine from Oak Ridg e N ationa l Lab orato ry durin g the 1 940 s and ‘50s p rob ably exposed th ous ands of c hi ldr en t o rad iationand i ncr eas ed t hei r l if etime risk of d ev elop ing thyro id can cer, scie ntists repo rted T hursd ay in preliminary fin dings. ” Report Ties Releas es of Iodine , K NOXVIL LE N EWS

S ENTINEL , Marc h 20, 1998. An Oa k Ridg er article of th e same date h ad the head lin e: “Rel eases Li nked to Thyroi d Cancer.” T HE O AK R I DGER , May 20, 1998.

5 Plaintiffs’ attorne y spec ifically states in his a ffidavit that a lawsuit during th e 1990s woul d hav e bee n pr emat ure and f ri vol ous unde r Fe d. R. Civ

. P. 11. (JA 509. ) “A pr inci pal r eason was t

hat mos t rel evan t inf ormat ion was cla ssified, un release d, and therefo re una vailab le an d

wou ld rema in unav ail a ble.” (Id.) However, as urged by ContractorDefend ants, the stand ard is an obje ctiv e one and does not relat e to what Plain tiffs’ attorney m ay sub jective ly have b elieved or no t believe d. aware of a p ot en ti al pe rs on al in

ju ry c laim con nected to Oak Ridge emissions or releases in 1998 or 1999 a t the la test,

w hen the ORHASP preliminary repor ts became available. (JA 213, 1391-1401, 1600-1603.) It is tr ue that the ORHASP final report constitutes the first insta nce whe n a defin ite link

was established with fi

nality . Howeve

r, Pl aintiff

s do not allege that they

belong to the two groups “most likely to have been harmed” by the Oak

Ridge r elease s. 4 The issue of the final report did not by

itself tri gger

Plaintiff s’ duty to inquire under Hicks . Accor

dingly , Plaintiff s should have raised

their claims so metim e in the late 1990s when it became apparent that they may have ha d a viable claim. 5

More importantly, none of the Plaintiffs here claim that they have contracte d a disea se attrib utable to the toxic releases within the one-yea r statute of

limitation period. Only

some of the Heiser Plainti ffs allege they have actually contracted

cancer, while others claim increase d risk of cancer. Yet, there mu st nece ssarily be diffe rent accrual dates when the injury complained of is the increased risk of disease as 14 Ball, et al. v. Union Carbide Cor

p., et al. Nos. 02-6289/6311

6 Indeed, the di s trict

court devoted most of its opini on to explaining why a c lass cer tification o f these ind ividua ls was no t app rop riate. o pposed to the dise ase itsel f. When the increa sed ris k o f disease is the injury claimed, the threshold of findi ng a “duty to inquire” under Hicks is lower. That is, individua ls should know that they are “at risk” as soon

as a link between cancer andemis sions becomes apparent. On the other hand, when the injury is contra cting c ancer, the cla

im will accrue when the plaintiff

knew or should hav e known of the dis ease , not just the risk of

acquiringthe disease. In that event, a plaintiff must clearly plea

d that the injury occur

red within the statute of limitations

period. Pl aintiffs

here fa ce a for midable st

atute of l imitatio ns hurdle . The re ason is in p art that i ndividual s notsimilarly situated became pla intiffs in one and th e same suit. 6 It is possible the weaker claims have ob scured the stronger claims. From this va

ntage p oint, howe

ver, it is impossible

to disc ern who would hav e a viabl e claim, especia lly gi ven th at no argument was advanced tha t plaintiffs

were diagnosed with any disease during the limitations period. The district court noted correctly t

hat “con ceivabl y a plaintiff with a still viabl e claim could exist ( i.e. , a person who was di agnosed with thy roid cancer within one y

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

Ona different note, we find Plaintiffs’ claims alleging the Contract or-Def endants’ “fraud

ulent acts” of concealme

nt to be without me

rit. Pls.’ Ball Br. at 45. Plaintiffs claim no specific act of concealment, but underline that a num ber o f the arti cles that covered Oak Ridge were equivocal and contained phrases such as “no harm” from theemissions, “no link” to cance

r, and “n o health concern.” Id. 52; Pls.’ Heiser Br. at 53. Plaintiff

s also poin

t to “national secu

rity classif ication” of information regarding Oa k Ridge. Pls.’ Ball Br. at 38.Nos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 15

We recognize that when a gover nment project such as Oak Ridge is shroude d in

secrecy , it may bedifficult to collect the necessary facts to make a case. However, it was well known that pl ants in

Oak Ridge engag ed in nuclear weapons manufacturing and other nuclear research, that

they relea sed toxic materia

ls, and tha

t such toxic ma teria ls may be hazardous to huma

n h eal th d epe nding on th e do sag e. ( JA 303-12; 988-1001; 1599-1603.) Plaintiff s needed to present to this cour

t with suff

icient cl arit

y and “particularity

” what t he y claim was fraudulently concealed by

government officia ls and contractors and how that affect e d their case. Dayco v. Goodyear

Tire & Rubbe

r Co. , 523 F.2d 389, 394 (6th Cir. 1975). We find no thing in t he record of this c ase th at exhibits any concealment motivated by bad faith on th e part of Defe ndants. We further note that the duty to inquire applies even when the government may have e ngaged

in concealment

of facts. See Kronisch v. United States , 150 F.3d 112, 121 (2d Cir. 1998).
(ii) Civil rights claims

. The Ball Plain

tiffs additionally arg

ue that the statute of limitatio ns does not a

pply because Contract or-Def endants have a c o ntinuing affirmative duty to remedy ef

fects of exposure to emissions as such effects constitute “vestiges” of hi storical de jure racial segrega tion. Pls.’ Ball Br. at 28

. Plaintiffs charge that “the continuing e xistence of Scarboro as

a segre gated c ommunity

is attributable (and attributed by the Amended Complaint)

to all Def

endants’ unconsc ionable actions.” Pls.’ Ball Br. at 29. Plaintiffs attempt to derive support from a nu mber of s chool des egregation ca ses, such as Freeman v. Pitts , 503 U.S. 467 (1992 ); Columbus Board of Education v. Penick

, 443 U.S. 449 (1979); and Dayton Bo ard of Educa tion v. Brinkman , 443 U.S. 526 (1979). Plaintiffs also rely on var

ious affirmative actio n cases for the proposition that “affirmative action may be use d to eradi cate 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 Cor

p., 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 Ste elwork

ers of America v. Webe r , 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).

Contract or-Def endantscounter that Plaintiffs’ alleged exposure t

o Oak Ridg e emission s is nota “vestige” of racial discriminatio n. Con-Defs.’ Ball Br. at 19-22. ContractorDefend ants al ternatively arg

ue that they have

no ongoing affirmative duty

to remed y the effe cts of dis crimination by governmentalentities. Id. at 22, 29. Contract or-Def endants finally argue that, in any event, ther

e is no affirma

tive duty to remedy the e ffects of residential segregation.

The district court observed that “the Scarboro co m munity has bee n integrated since the 1950s.” (JA 89.) The district court went on to say: “To find othe rwi se would mean the statute of limitations would never be tolled unless every bla

ck person left Scarb oro.” ( Id.)The distr ict cour t specifi cally 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 res emblance to the facts alleged here. Moreover, Plaintiffs do not seek t o eliminate the “vestige” of past discrimination by a sking for the desegregation

of Scarboro. See Con-

Defs.’ Ball Br. at 20. “Rathe r , [they] are seeking remedies for potential personal injuries and property

damage relating

to alleg ed exposur

e toNos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 17

7 See supra not e 1, reg ardi ng t he r eme dy th e Ba ll Plai nti ff s ar e now seeking. Oak Ridge e mission s.” 7 Id. at 20-21. As ContractorDefendants correctly

explain:
[T]he fact that [Plaintiffs’] alleged personal injuries and property da

mage might not

have occurred

(or might not have been so serious) but for the rac ial discr imin a tion that led to the

establi shment of Scarb oro in the first instance does no t mean that the discrimination was the proximate

cause of those injuries and that damage. The concept of the “vestiges” of discrimination h a s never been stretched so far as to encompass any thing bad that happens to someone

that mig ht not have happened but for racial segregation. Under [P]laintiffs’ logic, anything bad that happens as a result of Scarboro’slocationcan be deemed a “vestige” of

disc rimination, since Scarboro itself would not exist but for discrimination.

Id. at 21. It would indeed be a stretch to r ely on the schoo l desegregation

cases to

require Contract

or-Def endants t o eliminate any

lingering effects of pa st governmental discrimination by pay

ing for cleanu

p an d medi cal mo nito ring.

The affirmative action cases Plai ntiffs reference are similarly not disposi

ti ve. Those cases stand for the proposit io nthat affirmative action is not prohibited by the Constitution or the federal civil rights statutes

. See ConDefs.’ Ball Br. at 26-27. Thesecases do not, however, go as far as to interpret the Constitution and the f ederal civil rig hts statutes as mandatinggover nment con

tractors to remed

y pa st discrimination. That is, contractors have no a ffirmat ive duty to eliminate c u rrent effects of past discrimination by governmental entities. 18 Ball, et al. v. Union Carbide Cor

p., et al. Nos. 02-6289/6311

8 Bec ause we fi nd the Ba ll Plaintiffs’ civil rights claim s withou t merit in any event, we need not reach t he iss ue o f which st atute of l imitati ons applies to th e claims: th e f our- yea r s tat

ut e of li mit ati ons of 2 8 U.S. C. § 16 58, the one-ye ar T enne ssee statu te, or an other statute. Onthe issue of affirmative duty , the case Plaintiffs rely on is di st in gui sha bl e. In Hills v. Gautreaux , the Supreme Court sustained “[a]n orde

r direc ting HUD

to use its di s cretio n under the vari ous fede

ral housi ng prog rams to fo ster pro

jects located in white ar eas of the Chicago housing market,” finding that such

an order would be “ consiste

nt wi th and supportive of well- est ablish ed federal housing policy .” 425 U.S. 284, 301 (1976). HUD was ordered to remedy its own “wrong” of “conf

in[ing bla ck tenan ts] to segr

egate d publ ic housing.” Id. at 299. I

n this case, there is no allegation here that Contractor-Defendants initiated the segre gation.

Ac co rd in gl y, we find that ne ither the United States Constitution nor federal civil rights statutes aff ord 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 certif y a s a Rule 23 (b)(2)or Rule 23 (b)(3)class:
[ P]erso ns who lived in Oak Ridge, Tennessee, or otherwise resided in a nearby geographic are a under

the influence of the Defendants from 194 3 to the present who have not yet c ontracted thyr oid cancer

but who have been expo sed and p

ut at risk by D efenda

nts’ act.

In Ball , Plaintiff

s sought t o certif y a s a Rule 23 (b)(2)class:
[A]ll in divi duals of African American desce nt who

curren tly live in and/or currently own prope rt y inNos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 19

9 Rule 23( a) rea ds as fo llows: Prerequis ites to a Clas s Actio n. On e or m ore m emb ers of a class may sue or be sue d as re prese ntative p arties o n beh alf of all on ly if (1) the class is so nume rous th at joind er of all m emb ers is impra cti cable , (2) the re ar e ques ti ons of law or fact co mm on to the class , (3) t

he clai ms or defens es of t he repres entat ive part ies

are typical o f t he claims or defenses of the class, and (4) the representative part ies wil l f air ly and adequ ately prot e ct the interests of the class. Fed. R. Civ. P. 23 (a). Mo reover, an “ac tion may be m aintained as a class acti on if t

he prerequisites of

subdivision (a) ar e satisf ied, and in addition:

. . . (2) the party opposi ng the cl ass has a cted or ref used t o a ct o n groun ds general ly appl icable to the class , th er eby m aking app rop riate fin al injuncti ve relief , or corresponding declaratory reli ef wi th res pect to t

he clas s as a wh ole . . . .”

Fed. R. Civ. P. 23(b)(2). Scarboro and/or once l i ved in the Scarbor o community and continue to frequently visit the Scarbor o co mm un it y. (JA 203.) The district court first emphasized that class action certification

is generally

not appropriate in mass tort c ases. The district court further

denied the motion because it found that Plaint iff s failed to show commonality and ty picality of claims, and failed to meet the ade qua te representation requirement under Fed. R. Civ. P. 23(a). 9

Plaintiffs charge that the district court abused it s discretion when it ignored “five separate sworn aff idavits or declarations submitted” in support

of their c lass 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 Heise r Pla intiffs because, where race discrimination is alleged and injunctive

relief i s sought, class certification

is appropriate. See Pls.’

Ball Br. at 53. Plaintiffs also c halle nge the district court’s focus on individualized issues of proof

with resp ect to commonalit y b ecause they assert that the predominance anal ysi s is inappr opriate in 20 Ball, et al. v. Union Carbide Cor

p., et al. Nos. 02-6289/6311

analyzing co mm on al it y. See id. at 56. Plaintiffs explain that “[i]f the issue of liabili ty is common toall class members then Rule 23(a)(2) commonal it y a nd Rule 23( a)(3)’ s ty picality require ments are satisfied.” Id. at 57 ( citi ng Mayer v. Mylod
, 988 F.2d 635, 640 (6th Cir. 1993)). Plaintiffs identify the

co mmonality

issue as Defendants’ obligation to remedy present discriminatory eff

ects of past discrimination, and the typ icality issue as Defendants’ same unlawful conduct being directed at both P laintiffs and the other members of the putative class. See id. at 54, 59.

Contract or-Def endantsclaim that the Ba ll case “ is essentia lly the Heiser case, dr

essed up as a

civil rights case.” Co n- Defs.’

Ball Br. at 32 (emphasis in the original). Contractor-Defendants maintain that thetrue remedy sought here is compen sation for personal injury , proper ty damag e, and medical monitoring, all of which are indi vidual re medies. See id. at 36.

As to the proposed

class in Heiser , the district court found that the commonality re quire ment is not s atisfied because “there are multiple issues not common toall class members.” (JA 77-78.) T

he distric

t court f u rther found that the individual Plaintiffs’ claims were not ty pical of the claim s of the class as a whole because “many of the class members

were not even living in Oak Ridge in the 1950 s, which is when the most significant emissions compl ained of occurred. ” (JA 78.) For similar re asons, the district court also found that Plaintiff s were not adequa

te repr esentat ives of the class.

As to the pro

posed cla ss in Ball , the district court observed:

Even if it is assumed ther e ar e common i ssues with regard to de jure segregation and whethe r vestiges of that segregation

remain i n Scarboro, those questions do not predominate over the innumerable individu al ized questions that would exist with respect to each plaintiff. Each member of

the proposed class lived

in Scarboro forNos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 21

10 For that reason and contrary to P laintiffs ’ asse rtion, the di stri ct court could no t have certified the Rule 2 3(b)(2 ) class without firstfinding that all the req uirem ents of Rule 23(a) have been satisfi ed. The corollary is that the di stri ct court

need not

have r eache d the Rule 23(b) iss ues af ter finding th e req uirem ents of R ule 23 (a) ha ve no t been met. a discrete period of

time and was exposed to mercury or other toxins in a d iscr ete way . Some may have lived there for fift

y or more ye ars and some for a week or less. Some were there in the late 1950s when emissions were great est and some were not. A few may ha ve consumed milk froma backy ard far m animal in

the 1950s, most did not. As in Heiser , each in dividual p laintiff

, if he or she has a claim, has a highly

individualized cl ai m based on his or her total exposure time, exposure period, medical hi st or y, diet, sex, age, and a myriad of other factors. The court finds that

the indi vidu aliz ed iss ues far outwe igh any common one s. (JA 80-81.) The district court then point e d to differences amongthe named Ball Plaintiff s, such as the dura tion of time they lived in Scarboro or their property ownership. (JA 81.) The districtcourt opi

ned that, theref

ore, “there is no ‘ty

pical’ Scarboro resident for

purpos es of Rule 23.” Finally , the districtcourt n ot ed that the proposed class in Ball , as in Heiser
, was too “vague.” (JA 82.)

The district court’s de cision to d eny class ce rtifica tion is reviewed for abuse of discretion. See Spra gue v. Ge n. Motors Corp.
, 133 F.3d 388, 397 (6th Cir. 1998) ( en banc ). T h e districtcourt mus t“r igorously” analyze the re quirements of Rule 23. See id. (citation omitted) . “No cla ss that fa il s t o sati sfy all four of the prerequisites of Rule 23(a) may b e certified, and each

class mee ting thos e prereq

uisites mus t 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 Cor

p., et al. Nos. 02-6289/6311

Here, the distri ct court

did not abu se its discre tion in denying class certification. The distri ct co urt analyzed the Rule 23(a) requirements in concluding that Plaintiffs did not have clai ms com mon 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 sa me under lyin g claim of environmental injury in both. The Ball case is “simply not a
cas e abou t racial

discrimination in the

abstract, but a ca se alleging tha t r acial discrimination caused environmental injuries.” Con-Defs.’ Ball Br. at 40. Eve n though liability issues may have be en common to th e putative class, by seekingmedical monitoring and environmental cleanup of pr op er ty, Plaintiffs have raised individualized issue s . Each individual’s claim was for that reason necessa ril y proportional to his or he r e xp os ur e t o t ox ic em is si on s o r w as te . S im il ar ly, the Heiser Plaintiffs’ claims depended on their peri od o f residency in Oak Ridge and levels of ex posure. Also, the “named plaintiffs who already have th yroid canc er have fundame ntally differe nt inte res ts than those named and unnamed plaintiffs who do not.” Con-Defs.’ Heiser Br. at 47 (emphas is in the original). Indee d, the Heiser Plaintiffs who had thy roid can cer we re not ev en memb ers of the proposed class, which wa s d efined as consisting of individuals who were at risk of developing the ca ncer. 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 peculia r to each individual member of the class remain after the common questions of the defen dan t's liability have be en resol

ved does n ot di ctate the conclusion that a class a ction is impermissible.” 855 F.2d at 1197. The court went on to

say that “whe

re the [one] defe

ndant' s liability

can be determined on a class-widebasis 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. Her e, however, th ere are multiple Defendants with presumably differingNos. 02-6289/6311 Ball, et al. v. Union Carbide Cor

p., et al. 23

11 According to R ule 23(b )(3), an “action m ay be ma intained as a class action if the prerequ isites of subdivision (a) are sa tis fied, and in add ition:

. . . (3 ) the court finds t

hat the questi ons of law or fact common to the members of t

he cl ass predom i nate o ver an y ques tions affec ting only individual mem bers, and that a clas s action is super ior to o ther av ailable methods f

or the f air an d effi cient

adjudicat ion of t

he contr oversy. ” liability levels, if any. Ac cordingly , there is no “single course of conduct.” Therefo re, Sterling is disting uishable on its facts. Moreover, Sterling aff irm ed the class action certification, emphasizing the district court’s discr etion in making such decisions.

Fi na ll y, the fact that the district court’s discussions of the commonal ity

and typicality

issues wer e in tertwined is not f a tal. We have recognized that the “commonality and typ icali ty requirements of Rule 23(a) tend to merge .” Rutherford v. City of Cleveland , 137 F.3d 905, 909 (6th Cir. 1998). Plaintiffs additionally charg e that the district court should not have used

the term “

predominance” f

ound in Rule 23(b)(3) in its an al ys is of co mm on al it y an d t ypi ca li ty. 11 However, “the pre dominanc e requir ement of Ru l e 23(b)(3) [has been found] similar to the requirement of Rule 23(a)(3).” Amchem Prods. Inc. v. Wind sor , 521 U.S. 591, 623 n.18 (1997). As any cl aim the class may ha ve had in common threatened

to splinter into indi vidua lized claims, it was not

error for the district c ourt to re fer to the fact tha t Plaintiff s’ individualizedclaims pr edominat ed over t

heir cla ims in

common.

D. Sovere

ign immunity

. The Ball Plaintiffs disavow making any individual capaci

ty claims, and arg

ue only that th ey are

s eeking declaratory

and injunctive relief a

gainst t he Gover nment-De fendant s intheir official capacity . In a

suit based on the official capacity of a 24 Ball, et al. v. Union Carbide Cor

p., et al. Nos. 02-6289/6311

de fendant
, the rea

l party in intere st is the Un

ited St ate s government and

the suit is subject to governmental defenses including sovereign immunity. K ent ucky v. Graham , 473 U.S. 159, 166-67 (1985). Even so, federal courts have jurisdiction to provide prospective injunctive relief ag ainst the unconstitutional actions of federal officers. Bell v. Hood , 327 U.S. 678 (1946). Plai ntiff s somewhat disingenuously a rgue that “t hi s a ct io n i s v ir tu al ly entirel y, if not exclusively , for injunctive reli ef.” T he praye r for relief, however, includes

re quests for declaration of liability for all future co sts o f removingcontamination, injunctive relief in the form of an order directingabatement and disclosure of information, and admission of wrongdoing and a public apology

for violating Plaintiff s’ constitutional rights. Because we affir m the dismissal of the c la ims in Ball on the merits, we need not d etermine whether the claims are also barred by sove reign im mu ni ty.

C ONCLUSI ON

For all the reasons stated above, we AFFIRM the judgment of the dis trict cou

rt.