Bryant v. United States

• Decision Date: 14 October 2014
• Docket Number: No. 12–15424.,12–15424.
• Citation: 768 F.3d 1378
• Parties: 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, v. UNITED STATES of America, Defendant–Appellant, Cross Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

768 F.3d 1378

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,
v.
UNITED STATES of America, Defendant–Appellant, Cross Appellee.

No. 12–15424.

United States Court of Appeals,
Eleventh Circuit.

Oct. 14, 2014.

[768 F.3d 1379]

John J. Korzen, Wake Forest Law School, Winston–Salem, NC, Jennifer Rives Culler, Stack & Associates P.C., Robert B. Jackson, IV, Law Office of Robert B. Jackson, IV, LLC, Donald DJ Stack, Stack & Associates P.C., Atlanta, GA, Walker Percy Badham, III, Brannon J. Buck, Brett Andrew Ialacci, Badham & Buck, LLC, Birmingham, AL, E. Allen Dodd, Jr., Scruggs Dodd & Dodd, Attorneys, PA, Fort Payne, AL, Joel R. Wolpe, Alexander S. Orlofsky, Wolpe Leibowitz Alvarez & Fernandez, LLP, Miami, FL, for Plaintiffs–Appellees, Cross Appellants.

James Nathaniel Douse, Atlanta, GA, pro se.

Daniel Tenny, John Adam Bain, Kathryn N. Boling, Thomas Mark Bondy, John J. Bowers, Geoffrey C. Cook, Stuart F. Delery, Adam Michael Dinnell, Mark B. Stern, U.S. Department of Justice, Washington, DC, Darcy F. Coty, Sally Yates, U.S. Attorney's Office, Atlanta, GA, for Defendant–Appellant, Cross Appellee.

Appeals from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:11–md–02218–JOF.
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

[768 F.3d 1380]

Liability Act (CERCLA), 42 U.S.C. § 9658,² 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.

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 until bodily harm to the claimant or physical damage to his property becomes apparent or

[768 F.3d 1381]

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

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

[768 F.3d 1382]

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.

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.

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 revive an expired claim “would ... deprive the defendants of vested rights.” Id. at 710, 104 S.E.2d at 860. ⁹

[768 F.3d 1383]

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 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...