Ball v. Union Carbide Corp.

• Decision Date: 30 September 2004
• Docket Number: No. 02-6289.,No. 02-6311.,02-6289.,02-6311.
• Citation: 385 F.3d 713
• Parties: Fannie BALL, et al. (02-6289); Stephen Heiser, et al. (02-6311), Plaintiffs-Appellants, v. UNION CARBIDE CORP., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

385 F.3d 713

Fannie BALL, et al. (02-6289); Stephen Heiser, et al. (02-6311), Plaintiffs-Appellants, v. UNION CARBIDE CORP., et al., Defendants-Appellees.

No. 02-6289.

No. 02-6311.

United States Court of Appeals, Sixth Circuit.

Argued April 27, 2004.

Decided and Filed September 30, 2004.

Appeal from the United States District Court for the Eastern District of Tennessee, James H. Jarvis, J.

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George E. Barrett (briefed), Edmund L. Carey, Jr. (argued and briefed), Barrett, Johnston & Parsley, Nashville, TN, for Plaintiff-Appellants.

E.H. Rayson (briefed), Thomas M. Hale (briefed), Kramer, Rayson, Leake, Rodgers & Morgan, Knoxville, TN, Kevin T. Van Wart (briefed), Kirkland & Ellis, Chicago, IL, Christopher Landau (argued and briefed), Susan E. Kearns, Kirkland & Ellis, Washington, DC, John T. Buckingham, Assistant United States Attorney (argued and briefed) U.S. Attorneys Office, Knoxville, TN, for Defendants-Appellees.

Before GUY and GILMAN, Circuit Judges; BARZILAY, Judge.^*

AMENDED OPINION

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 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 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.)

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 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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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...