Erica Y. Bryant v. United States

Case: 12-15424 Date Filed: 10/14/2014 Page: 1 of 15
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15424
________________________
D.C. Docket No. 1:11-md-02218-JOF
ERICA Y. BRYANT,
LEANDRO PEREZ,
INGRID PEREZ JACIR,
JOHN EDWARDS,
as Father and next friend of his
daughter, decedent Jennifer Edwards,
CONNIE EDWARDS,
as Mother and next friend of her
daughter, decedent Jennifer Edwards, et al.,
Plaintiffs – Appellees,
Cross Appellants,
JAMES NATHANIEL DOUSE,
Plaintiff – Appellee,
versus
UNITED STATES OF AMERICA,
Defendant – Appellant,
Cross Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(October 14, 2014)
Case: 12-15424 Date Filed: 10/14/2014 Page: 2 of 15
Before TJOFLAT and WILSON, Circuit Judges, and BUCKLEW, ∗ District Judge.
TJOFLAT, Circuit Judge:
This appeal arises out of a multi-district litigation, in which multiple
plaintiffs and their family members allege that they experienced various health
problems after being exposed to toxic substances in the drinking water while living
at Camp Lejeune, a military base in North Carolina. The plaintiffs brought this
action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§
2671–2680. The United States moved to dismiss the case, arguing that the North
Carolina statute of repose, which provided that “no cause of action shall accrue
more than 10 years from the last act or omission of the defendant giving rise to the
cause of action,” N.C. Gen. Stat. § 1-52(16) (2010), precluded the plaintiffs from
bringing this case.1
The District Court disagreed, concluding that a provision of the
Comprehensive Environmental Response, Compensation, and Liability Act
∗
Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
1
The Government also sought to dismiss the plaintiffs’ complaints on the grounds that
their claims are barred by the Feres doctrine and that any post-discharge failure-to-warn claims
are barred by the discretionary-function exception to the Federal Tort Claims Act. The District
Court only addressed and certified the statute-of-repose issue to this court. Consequently, we do
not discuss, and we express no opinion on, the Government’s other asserted defenses.
2
Case: 12-15424 Date Filed: 10/14/2014 Page: 3 of 15
(CERCLA), 42 U.S.C. § 9568,2 preempted North Carolina’s statute of repose. The
court separately ruled that North Carolina’s statute of repose does not contain an
exception for latent diseases.
The District Court then certified two questions for interlocutory appeal, 3 and
this court permitted the appeal. The two questions presented are (I) whether
CERCLA preempts the North Carolina statute of repose, and (II) whether the
North Carolina statute of repose contains an exception for latent diseases. We
address each question in turn.
2
The relevant provision of CERCLA, 42 U.S.C. § 9568(a)(1), provides:
In the case of any action brought under State law for personal injury, or property
damages, which are caused or contributed to by exposure to any hazardous
substance, or pollutant or contaminant, released into the environment from a
facility, if the applicable limitations period for such action (as specified in the
State statute of limitations or under common law) provides a commencement date
which is earlier than the federally required commencement date, such period shall
commence at the federally required commencement date in lieu of the date
specified in such State statute.
“The term ‘applicable limitations period’ means the period specified in a statute of limitations
during which a civil action referred to in subsection (a)(1) of this section may be brought.” Id.§ 9568(b)(2). “The term ‘commencement date’ means the date specified in a statute of
limitations as the beginning of the applicable limitations period.” Id. § 9568(b)(3). “[T]he term
‘federally required commencement date’ means the date the plaintiff knew (or reasonably should
have known) that the personal injury or property damages referred to in subsection (a)(1) of this
section were caused or contributed to by the hazardous substance or pollutant or contaminant
concerned.” Id. § 9658(b)(4)(A).
3
28 U.S.C. § 1292(b) provides that in a civil action, a district court may certify a
question of law to a court of appeals if the district court concludes that an order not otherwise
appealable “involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation.”
3
Case: 12-15424 Date Filed: 10/14/2014 Page: 4 of 15
I.
After the parties briefed this case, but before oral argument, the Supreme
Court granted a petition for a writ of certiorari in a separate case out of the Fourth
Circuit, which presented the question of whether CERCLA preempts North
Carolina’s statute of repose.4 On June 9, 2014, the Court determined that
CERCLA, specifically 42 U.S.C. § 9658, does not preempt North Carolina’s
statute of repose. See generally CTS Corp. v. Waldburger, ___ U.S. ___, 134 S.
Ct. 2175, 189 L. Ed. 2d 62 (2014). Thus, we have the answer to the first question
presented in this interlocutory appeal. CERCLA does not preempt North
Carolina’s statute of repose.
II.
We must, therefore, turn to the second question presented in this appeal,
whether the North Carolina statute of repose includes an exception for latent
diseases. At the time the plaintiffs brought this action, the statute of repose
provided:
Unless otherwise provided by statute, for personal injury or physical
damage to claimant’s property, the cause of action . . . shall not accrue
4
The Fourth Circuit decided that CERLCA preempted the statute of repose. See
Waldburger v. CTS Corp., 723 F.3d 434, 444–45 (4th Cir. 2013), rev’d, ___ U.S. ___, 134 S. Ct.
2175, 189 L. Ed. 2d 62 (2014). Because the plaintiffs in the case brought a nuisance action, the
court did not address the issue of whether the North Carolina statute of repose contained an
exception for latent diseases.
4
Case: 12-15424 Date Filed: 10/14/2014 Page: 5 of 15
until bodily harm to the claimant or physical damage to his property
becomes apparent or ought reasonably to have become apparent to the
claimant, whichever event first occurs. Provided that no cause of
action shall accrue more than 10 years from the last act or omission of
the defendant giving rise to the cause of action.
N.C. Gen. Stat. § 1-52(16) (2010). On its face, the text of the statute contains no
exception for latent diseases, and no other North Carolina statute excepts latent
diseases from the statute of repose. The plain text of the statute is unambiguous.5
5
The plaintiffs rely on Jones v. United States, 751 F. Supp. 2d 835 (E.D.N.C. 2010), to
support their contention that the statute of repose was ambiguous as to whether it contained a
latent-disease exception. Although the District Court in that case held that the statute of repose
did not apply to latent diseases, it reached that conclusion by bypassing the statutory text
entirely. See id. at 836 (“The Court finds that § 1-52(16)’s statute of repose has an exception for
latent diseases. The Court bases this decision on the statute’s legislative history, case law, and
state public policy.”). In an order denying the defendant’s motion for reconsideration, the court
confirmed that the statute’s text did not provide an exception for latent diseases; it ignored the
text, however, because, according to the court, “[a]dopting § 1-52(16)’s literal meaning would
lead to absurd results.” Jones v. United States, No. 7:09-CV-106, 2011 WL 386955, at *2
(E.D.N.C. Feb. 3, 2011).
The absurd result, according to the court, was that potential claimants would be denied an
opportunity to seek relief before they became aware that they were ill. But that is the point of a
statute of repose; it “bar[s] any suit that is brought after a specified time since the defendant
acted . . . , even if the period ends before the plaintiff has suffered a resulting injury.” Black’s
Law Dictionary 1546 (9th ed. 2009). “Statutes of repose effect a legislative judgment that a
defendant should be free from liability after the legislatively determined period of time.” CTS
Corp. v. Waldburger, ___ U.S. ___, ___, 134 S. Ct. 2175, 2183, 189 L. Ed. 2d 62 (2014)
(quotation marks omitted).
“When the words of a statute are unambiguous . . . judicial inquiry is complete.” Merritt
v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997) (internal quotation marks omitted);
see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717,
722 (2004) (“Where the statutory language is clear and unambiguous, the Court does not engage
in judicial construction but must apply the statute to give effect to the plain and definite meaning
of the language.” (internal quotation marks omitted)). Here, the statutory language is plain. We
therefore decline to follow Jones in conjuring an exception where the plain text of the statute of
repose provides none.
5
Case: 12-15424 Date Filed: 10/14/2014 Page: 6 of 15
Shortly after the Supreme Court decided Waldburger, however, the
Governor of North Carolina approved Session Law 2014-17, which amended the
statute of repose. The General Assembly also passed, and the Governor signed,
Session Law 2014-44, which made several technical amendments to Session Law
2014-17.6 We then requested supplemental briefing from the parties on the
following question: Whether, in light of the enactment of N.C. Session Laws 2014-
17 and 2014-44, the plaintiffs’ actions are barred by North Carolina’s statute of
repose (N.C. Gen. Stat. § 1-52(16))? 7
The statute of repose now reads:
Unless otherwise provided by law, for personal injury or physical
damage to claimant’s property, the cause of action . . . shall not accrue
until bodily harm to the claimant or physical damage to his property
becomes apparent or ought reasonably to have become apparent to the
claimant, whichever event first occurs. Except as provided in G.S.
130A-26.3, no cause of action shall accrue more than 10 years from
the last act or omission of the defendant giving rise to the cause of
action.
6
Session Law 2014-44 is titled “An Act to Make Technical Amendments to Session Law
2014-17.” However, one of the amendments, which removed a sunset provision that set Session
Law 2014-17 to expire on June 19, 2023, seems more substantive than technical. For ease of
discussion, we refer to Session Law 2014-44 except where specifically noted.
7
Even if we were so inclined, we are unable to certify this question to the North Carolina
Supreme Court because “North Carolina currently has no mechanism for us to certify questions
of state law to its Supreme Court.” Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir.
2013).
6
Case: 12-15424 Date Filed: 10/14/2014 Page: 7 of 15
N.C. Gen. Stat. Ann. § 1-52(16) (West 2014) (emphasis added). The session law
added a new section to the North Carolina General Statutes, § 130A-26.3, which
provides: “The 10-year period set forth in G.S. 1-52(16) shall not be construed to
bar an action for personal injury, or property damages caused or contributed to by
. . . the consumption, exposure, or use of water supplied from groundwater
contaminated by a hazardous substance, pollutant, or contaminant.” N.C. Gen.
Stat. Ann. § 130A-26.3. 8
The General Assembly expressly made Session Law 2014-44 apply to
actions “filed, arising, or pending” on or after June 20, 2014, the statute’s effective
date. N.C. Sess. L. 2014-44, § 1(c) (amending N.C. Sess. L. 2014-17, § 4). Under
the law, an action is pending “if there has been no final disposition with prejudice
and mandate issued against that plaintiff issued by the highest court of competent
jurisdiction where the claim was timely filed or appealed as to all the plaintiff’s
claims for relief to which this act otherwise applies.” Id. In this case, the United
States Supreme Court is the highest court of competent jurisdiction, and it has not
issued a final disposition with prejudice, nor has a mandate issued from that Court.
As such, the amended statute of repose would appear to apply to the instant appeal.
8
“For purposes of this section, ‘contaminated by a hazardous substance, pollutant, or
contaminant’ means the concentration of the hazardous substance, pollutant, or contaminant
exceeds a groundwater quality standard set forth in 15A NCAC 2L .0202.” N.C. Gen. Stat. Ann.
§ 130A-26.3 (West 2014).
7
Case: 12-15424 Date Filed: 10/14/2014 Page: 8 of 15
The Government disagrees. It contends that the North Carolina General
Assembly is without authority to revive the plaintiffs’ claims after the repose
period has passed. Under North Carolina law, a statute may be applied
retroactively “only insofar as it does not impinge upon a right which is otherwise
secured, established, and immune from further legal metamorphosis.” Gardner v.
Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980).
The Government directs us to McCrater v. Stone & Webster Engineering
Corp., 248 N.C. 707, 104 S.E.2d 858 (1958), in which the North Carolina Supreme
Court considered whether a statute extending the time limitation to file a
workmen’s compensation claim from one year to two years could be applied
retroactively to claims filed more than one year but less than two years from the
date of the accident. In other words, if the amendment applied retroactively, the
claim would be timely; if not, the claim would be untimely. According to the
North Carolina Supreme Court, the time limit to file a workmen’s compensation
claim was a condition precedent rather than a procedural statute of limitations. Id.
at 708, 104 S.E.2d at 860. The court then held that the statute could not apply
retroactively because the limitation period was “a part of the plaintiff’s substantive
right of recovery, [and] could not be enlarged by subsequent statute.” Id. at 709–
10, 104 S.E.2d at 860. The reason, the court explained, was that any attempt to
8
Case: 12-15424 Date Filed: 10/14/2014 Page: 9 of 15
revive an expired claim “would . . . deprive the defendants of vested rights.” Id. at
710, 104 S.E.2d at 860. 9
Like the time limitation in McCrater, North Carolina’s statute of repose is a
substantive limit on a plaintiff’s right to file an action. See Boudreau v.
Baughman, 322 N.C. 331, 340, 368 S.E.2d 849, 857 (1988) (“Ordinary statutes of
limitation are clearly procedural, affecting only the remedy directly and not the
right to recover. The statute of repose, on the other hand, acts as a condition
precedent to the action itself.” (citations omitted)). As a result, the repose
limitation “is an inseparable part of the plaintiff’s substantive right of action.”
McCrater, 248 N.C. at 710, 104 S.E.2d at 861. And like the limitations period in
McCrater, the General Assembly may not enlarge the plaintiffs’ claim by statute
because to do so would be to divest the Government of a vested right.
The plaintiffs argue that McCrater is inapposite because here it was unclear
whether the original statute of repose’s reference to “personal injury” encompassed
claims for diseases. According to the plaintiffs, Session Law 2014-44 merely
clarified the scope of the statute of repose. Whether the statute clarified or altered
the statute of repose is relevant because under North Carolina law, clarifying
9
The North Carolina Supreme Court has also held that “[a] right or remedy, once barred
by a statute of limitations, may not be revived by an Act of the General Assembly,” Waldrop v.
Hodges, 230 N.C. 370, 373, 53 S.E.2d 263, 265 (1949), because doing so “takes away vested
rights of defendants,” Wilkes Cnty. v. Forester, 204 N.C. 163, 170, 167 S.E. 691, 695 (1933).
9
Case: 12-15424 Date Filed: 10/14/2014 Page: 10 of 15
amendments apply retroactively, whereas altering amendments do not. See Ray v.
N.C. Dep’t of Transp., 366 N.C. 1, 9, 727 S.E.2d 675, 681 (2012). The
Government does not have a vested right in the interpretation of the statute of
repose, the plaintiffs contend, because there is no final judgment. And to hold that
the Government has a vested right would be inconsistent with the rule that a
clarifying amendment “does not change the substance of the law but instead gives
further insight into the way in which the legislature intended the law to apply from
its original enactment.” Id. 10
10
To support their claim that the Government does not have a vested right, the plaintiffs
cite Bowen v. Mabry, 154 N.C. App. 734, 572 S.E.2d 809 (2002), which considered whether a
statutory amendment providing that a pending action for equitable distribution does not abate
upon the death of a party could apply retroactively to a claim that was pending when the
amendment was enacted. The North Carolina Court of Appeals determined that the amendment
was clarifying, and that the defendant did not have a vested right because “[t]here ha[d] been no
judgment dismissing Plaintiff’s claim prior to the effective date of the Act, and the abatement of
an action is not a right ‘immune from . . . legal metamorphosis.’” Id. at 737, 572 S.E.2d at 811(last alteration in original) (quoting Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471
(1980)).
The lack of an order dismissing the claim is not dispositive, for in McCarter there had
been no dismissal prior to the statutory amendment. Similarly, in Waldrop and Wilkes County,
the defendants’ rights did not vest because of an order of dismissal; they vested when the
limitations period expired. As in all three cases, the statute of repose at issue in this case creates
a vested right ten years after the last act or omission giving rise to the cause of action. And while
the abatement of an action may not be a right immune from legal metamorphosis, the right not to
be sued after the relevant limitations period has passed certainly is, regardless of whether the
time limitation is substantive or procedural. See McCrater, 248 N.C. at 709–10, 104 S.E.2d at
860; Waldrop, 230 N.C. at 373, 53 S.E.2d at 265.
10
Case: 12-15424 Date Filed: 10/14/2014 Page: 11 of 15
At the outset, we disagree that the original statute of repose was ambiguous
with respect to a latent-disease exception. See supra at 5. However, we hesitate to
dismiss out of hand the plaintiffs’ argument that Session Law 2014-44 clarifies,
rather than substantively amends, the statute of repose. Session Law 2014-17 is
titled “An Act Clarifying that Certain Civil Actions Relating to Groundwater
Contamination Are Not Subject to the Ten-Year Statute of Repose Set Forth in
G.S. 1-52,” and the title of a law provides some evidence of legislative intent. Cf.
Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 812, 517 S.E.2d
874, 879 (1999) (explaining that even when the text of a statute is plain, “the title
of an act should be considered in ascertaining the intent of the legislature”).
Moreover, in § 1 of the session law, the General Assembly found that prior
to the Supreme Court’s decision in Waldburger, “there was ambiguity and
uncertainty regarding the effect of federal law on the North Carolina statute of
repose in certain environmental cases.” N.C. Sess. L. 2014-44, § 1.11 The
legislature also found that “it was the intent of the General Assembly to maximize
under federal law the amount of time a claimant had to bring a claim predicated on
11
It is not clear what sort of ambiguity the General Assembly was referring to because
the federal law at issue in Waldburger was enacted seven years after North Carolina enacted its
statute of repose in 1979. See Superfund Amendments and Reauthorization Act of 1986, Pub. L.
99-499, § 203, 100 Stat. 1613, 1695 (adding 42 U.S.C. § 9658). In other words, at the time the
statute of repose was enacted, the federal law at issue in Waldburger would have had no effect on
the statute of repose.
11
Case: 12-15424 Date Filed: 10/14/2014 Page: 12 of 15
exposure to a contaminant regulated by federal or State law.” Id. Furthermore, the
General Assembly found the Supreme Court’s decision in Waldburger to be
“inconsistent with the General Assembly’s intentions and the General Assembly’s
understanding of federal law” and that “it never intended the statute of repose in
G.S. 1-52(16) to apply to claims for latent disease caused or contributed to by
groundwater contamination, or to claims for any latent harm caused or contributed
to by groundwater contamination.” Id. Finally, there is the fact that the General
Assembly expressly made the statute retroactive. Although inclusion of an
effective date, standing alone, may not prove that an amendment is intended to be
clarifying or altering, see Ray, 366 N.C. at 9–10, 727 S.E.2d at 682, the fact that
the General Assembly expressly made Session Law 2014-44 retroactive lends
further support to the conclusion that the amendment is clarifying and that it
applies to the plaintiffs’ claims. 12
12
Beyond the text, the law’s legislative history also demonstrates that the General
Assembly sought to clarify the scope of the statute of repose. While the House of
Representatives discussed Senate Bill 574, which would ultimately become Session Law 2014-
17, one representative exclaimed that “the action we will take . . . is strictly one of clarifying the
intent of this body, in regards to how that statute of repose can be interpreted moving forward
and how it should have been interpreted since its inception.” N.C. H. Rep. Discussion of S.B.
Bill 574, at 4 (June 13, 2014) (statement of Rep. Glazer) (emphasis added). Summarizing the
Supreme Court’s decision in Waldburger, that same representative explained it “was never our
intent” to limit people exposed to contaminated groundwater to a maximum of ten years to file a
claim. Id. at 3. In the Senate, a senator explained:
What we’re doing today is we’re just making sure that we as the General
Assembly clarify the text of the statute in order to protect the original intent of the
12
Case: 12-15424 Date Filed: 10/14/2014 Page: 13 of 15
“To determine whether the amendment clarifies the prior law or alters it
requires a careful comparison of the original and amended statutes.” Ferrell v.
Dep’t of Transp., 334 N.C. 650, 659, 435 S.E.2d 309, 315 (1993). “If the statute
initially ‘fails expressly to address a particular point’ but addresses it after the
amendment, ‘the amendment is more likely to be clarifying than altering.’” Ray,
366 N.C. at 10, 727 S.E.2d at 682 (quoting Ferrell, 334 N.C. at 659, 435 S.E.2d at
315). However, “it is logical to conclude that an amendment to an unambiguous
statute indicates the intent to change the law.” Childers v. Parker’s, Inc., 274 N.C.
256, 260, 162 S.E.2d 481, 484 (1968).
Comparing the two statutes, it is clear that the amended statute of repose
contains a brand new exception for groundwater claims. This is not a case where
the General Assembly merely failed to address a particular point—whether
groundwater contamination claims fall under the statute of repose—only to address
1979 Act’s drafters. And what we’re dealing with in a couple parts of the state
are groundwater contamination claims. And what separates them from the
original intent of this – of the bill that was passed in 1979, is that groundwater
contamination claims, unlike product liability claims, arise from unknown
exposures – well, by unknown elements at unknown times, and so they have
latency periods that can be decades long, unlike products. And that the intent of
the original bill back in 1979 was to deal with products. They never conceived
they would be dealing with groundwater contamination claims. And all we’re
doing is clarifying that for anyone who might look at our law.
N.C. S. Discussion of S.B. 574, at 3–4 (June 18, 2014) (statement of Sen. Goolsby) (emphasis
added).
13
Case: 12-15424 Date Filed: 10/14/2014 Page: 14 of 15
it later. In Ferrell, the North Carolina Supreme Court held that a statute setting out
the manner of determining the price at which the Department of Transportation
would sell a parcel of property was clarifying because the original statute directing
the Department to sell parcels provided no express guidance as to selling price.
Ferrell, 334 N.C. at 659, 435 S.E.2d at 315. In other words, the clarifying statute
filled a hole left by the original statute. Here, by contrast, the General Assembly
created a substantively distinct exception from whole cloth. That the legislature
saw itself as clarifying the scope of the statute of repose is not irrelevant. But just
because the General Assembly said it was clarifying the scope of the statute of
repose does not make it so. “It is this Court’s job to determine whether an
amendment is clarifying or altering.” Ray, 366 N.C. at 9, 727 S.E.2d at 681. In
this case, the original statute of repose was unambiguous, and it gave no indication
that an exception existed for latent diseases. Thus, it is reasonable to conclude the
subsequent amendment was substantive. See Childers, 274 N.C. at 260, 162
S.E.2d 484. Session Law 2014-44 did not adopt the plaintiffs’ proposed distinction
between latent diseases and other types of claims; instead, it created one for
groundwater contamination claims generally, and there is no question that this
exception is new.
Session Laws 2014-17 and 2014-44 substantively amended the statute of
repose to create an exception for groundwater contamination and, as a result, can
14
Case: 12-15424 Date Filed: 10/14/2014 Page: 15 of 15
only apply prospectively, lest they divest the Government of a vested right. See
McCrater, 248 N.C. at 709–10, 104 S.E.2d at 860.
***
We therefore have the answer to both questions presented in this
interlocutory appeal. First, CERCLA, 42 U.S.C. § 9658, does not preempt statutes
of repose. See generally CTS Corp. v. Waldburger, ___ U.S. ___, 134 S. Ct. 2175,
189 L. Ed. 2d 62 (2014). Second, North Carolina’s statute of repose, N.C. Gen.
Stat. § 1-52(16) (2010), applies to the plaintiffs’ claims, and it does not contain an
exception for latent diseases.13
This case is REMANDED for further proceedings consistent with this
opinion.
SO ORDERED.
13
In their supplemental brief to this court, the plaintiffs contend that genuine issues of
material fact exist as to whether the Government’s last act or omission occurred within ten years.
We did not authorize the appeal of that question and thus do not address it.
15