           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2    Ball, et al. v. Union              Nos. 02-6289/6311
        ELECTRONIC CITATION: 2004 FED App. 0334A (6th Cir.)                 Carbide Corp., et al.
                    File Name: 04a0334a.06
                                                                                          _________________
UNITED STATES COURT OF APPEALS                                                                COUNSEL
                  FOR THE SIXTH CIRCUIT                                ARGUED: Edmund L. Carey, Jr., BARRETT, JOHNSTON
                    _________________                                  & PARSLEY, Nashville, Tennessee, for Appellants.
                                                                       Christopher Landau, KIRKLAND & ELLIS, Washington,
 FANNIE BALL , et al.               X                                  D.C., John T. Buckingham, ASSISTANT UNITED STATES
 (02-6289); STEPHEN HEISER,          -                                 ATTORNEY, Knoxville, Tennessee, for Appellees.
 et al. (02-6311),                   -                                 ON BRIEF: Edmund L. Carey, Jr., George E. Barrett,
                                     -   Nos. 02-6289/6311             BARRETT, JOHNSTON & PARSLEY, Nashville,
            Plaintiffs-Appellants, -                                   Tennessee, for Appellants. Christopher Landau, Susan E.
                                      >                                Kearns, KIRKLAND & ELLIS, Washington, D.C., John T.
                                     ,
              v.                     -                                 Buckingham, ASSISTANT UNITED STATES ATTORNEY,
                                     -                                 Knoxville, Tennessee, Kevin T. Van Wart, KIRKLAND &
 UNION CARBIDE CORP ., et al., -                                       ELLIS, Chicago, Illinois, E. H. Rayson, Thomas M. Hale,
                                                                       KRAMER, RAYSON, LEAKE, RODGERS & MORGAN,
           Defendants-Appellees. -                                     Knoxville, Tennessee, for Appellees.
                                     -
                                    N                                                 _______________________
         Appeal from the United States District Court
      for the Eastern District of Tennessee at Knoxville                                AMENDED OPINION
Nos. 01-00022; 01-00037—James H. Jarvis, District Judge.                              _______________________

                     Argued: April 27, 2004                               JUDITH M. BARZILAY, Judge. This is a consolidated
                                                                       case. The Heiser Plaintiffs are individuals who live or have
            Decided and Filed: September 30, 2004                      lived in or near Oak Ridge, Tennessee, and who allegedly
                                                                       have cancer or have an increased risk of acquiring cancer or
Before: GUY and GILMAN, Circuit Judges; BARZILAY,                      other diseases. The Ball Plaintiffs are African-Americans
                    Judge.*                                            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
     The Honorable Judith M. Barzilay, Judge, United States Court of   Spencer Abraham of the United States Department of Energy
International Trade, sitting by designation.

                                 1
Nos. 02-6289/6311                           Ball, et al. v. Union          3    4      Ball, et al. v. Union                Nos. 02-6289/6311
                                           Carbide Corp., et al.                       Carbide Corp., et al.

and John A. Gordon of the National Nuclear Security                             predominantly African-American community in Oak Ridge.”
Administration (“Government-Defendants”).          Plaintiffs                   (JA 192.)
appeal from a final order granting summary judgment to both
the Contractor-Defendants and Government-Defendants, and                          In addition to federal agencies, the following private
the denial of Plaintiffs’ motion for class certification.                       contractors operate or have operated the Oak Ridge facilities
Plaintiffs seek injunctive and equitable relief for medical                     and are named as Contractor-Defendants in Plaintiffs’
monitoring and environmental cleanup, and, in Heiser,                           complaint: the University of Chicago; Monsanto Company;
damages.1 For all the reasons stated below, we AFFIRM.                          Union Carbide Corporation; Roane-Anderson Company;
                                                                                Management Services, Inc.; Eastman Chemical Company;
                            BACKGROUND                                          Eastman Kodak Company; Turner Construction Company;
                                                                                UT-Battelle, LLC; Martin-Marietta Energy Systems, Inc.;
   The federal government established the Oak Ridge                             Lockheed Martin Energy Systems, Inc.; BWXT Y-12 LLC;
Reservation (“ORR”) as part of the Manhattan Project in                         and Bechtel Jacobs Company, LLC. (JA 32, 147.)
1942. The ORR includes three production facilities, each in
a separate valley. The city of Oak Ridge was established in                        In 1992 the state and federal governments collaborated in
the ORR to house thousands of civilian workers and military                     forming a panel (Oak Ridge Health Agreement Steering Panel
personnel. The federal ownership and control of the area                        (“ORHASP”)) to study the health effects of the release of
ended when the City of Oak Ridge received a charter of                          radioactive and other toxic substances from the Oak Ridge
incorporation from the State of Tennessee in 1959.                              facilities. The ORHASP periodically disclosed the results of
                                                                                its ongoing study and held open meetings throughout the
  In the early 1940s, African-American workers were                             1990s. The study was covered by the news media.
recruited from Tennessee and other southern states to work as
common laborers, janitors, and domestic workers in Oak                            On January 15, 2000, the ORHASP issued its final report
Ridge. These workers were housed in a separate camp, which                      to the public. The report was dated December 1999. The
came to be known as Scarboro, near one of the Oak Ridge                         ORHASP final report determined:
plants, code named Y-12, that enriched uranium and produced
nuclear weapon components. It is undisputed that Scarboro                           The results suggest it is likely that some people were hurt
was established and maintained as a segregated community in                         by the releases. The project reports present estimates of
the 1940s. The district court noted that “Scarboro remains a                        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
    1
      The Ball Plaintiffs no longer ask for d amages, Pls.’ B all Br. at 1-2,
                                                                                    the early 1950s, and fetuses carried in the 1950s and
19, even though initially they sought damages along with injunctive relief          early 1960s by women who routinely ate fish taken from
and never amended their comp laint to that effect. (JA 51, 5 2.)                    the contaminated creeks and rivers located downstream
Contracto r-Defendants argue that the Ball Plaintiffs cannot “amend” their          from the ORR.
complaint in their briefs to this court. See Con-D efs.’ Ba ll Br. at 17. In
any event, the Ball Plaintiffs’ arguments on this issu e are without merit,     (JA 1329.)
as exp lained below.
Nos. 02-6289/6311                   Ball, et al. v. Union     5    6    Ball, et al. v. Union                 Nos. 02-6289/6311
                                   Carbide Corp., et al.                Carbide Corp., et al.

  The Heiser Plaintiffs claim personal injury from emissions.      limitations issue. Pls.’ Ball Br. at 21-25; Pls.’ Heiser Br. at
Four of the Heiser Plaintiffs allege they have developed           33, 35-36. Contractor-Defendants counter that a separate
thyroid cancer due to radioactive emissions. The remaining         notice was not required because their motion was for
three allege they are at risk of developing thyroid cancer.        dismissal or, in the alternative, for summary judgment, which
                                                                   provided notice to Plaintiffs. Con-Defs.’ Heiser Br. at 13-16.
   The Ball Plaintiffs allege discrimination under a number of
civil rights statutes and the Equal Protection and Due Process       A district court’s decision to convert a motion to dismiss
Clauses of the Fifth and Fourteenth Amendments to the              under Rule 12(b)(6) into a motion for summary judgment
United States Constitution. In particular, the Ball Plaintiffs     under Rule 56 is reviewed for abuse of discretion. See Shelby
allege that “Defendants located and maintained, and continue       County Health Care Corp. v. S. Council of Indus. Workers
to maintain, Scarboro in an area known by Defendants to be         Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir.
the most contaminated and the most vulnerable to ongoing           2000).
pollution because of its proximity to the Y-12 plant.” Pls.’
Ball Br. at 13-14. Plaintiffs maintain that as a result, the           When deciding on a motion for summary judgment, Fed. R.
housing in Scarboro is less desirable, worth less, and accorded    Civ. P. 56(f) allows the court to order discovery if it “should
lower priority in terms of cleanup than other parts of Oak         . . . appear from the affidavits of a party opposing the motion
Ridge. Plaintiffs also maintain that “Defendants, by placing       that the party cannot for reasons stated present by affidavit
Plaintiffs in the location of Scarboro and the immediate           facts essential to justify the party’s opposition.” Further,
environs of the Y-12 plant, created a condition which was          under Fed. R. Civ. P. 12(b), before the district court may treat
inherently unsafe and unhealthy; and is the proximate cause        a motion to dismiss as a summary judgment motion, it must
of Plaintiffs’ injuries and of their higher risk of injuries,      give “all parties . . . reasonable opportunity to present all
creating the need for medical monitoring and surveillance.”        material made pertinent to” the issue. The Sixth Circuit
Id. at 15.                                                         interpreted this requirement to mean that it is “serious error”
                                                                   for a district court to convert the motion sua sponte to a
  Plaintiffs commenced this action within one year of the          summary judgment motion without notice to parties and
date of the release of the ORHASP final report on January 15,      without further discovery. Helwig v. Vencor, Inc., 251 F.3d
2000.                                                              540, 552 (6th Cir. 2001) (en banc).
                         DISCUSSION                                   Here, the district court did not act sua sponte in converting
                                                                   the motion to dismiss to a summary judgment motion.
A. Notice and Discovery.                                           Contractor-Defendants moved for summary judgment in the
                                                                   alternative. Moreover, as Contractor-Defendants correctly
  Plaintiffs first challenge the district court’s grant of         assert, Plaintiffs responded to the summary judgment motion
summary judgment under Fed. R. Civ. P. 56 on the basis that        by submitting materials outside the pleadings, such as
the statute of limitations had run on Plaintiffs’ claims.          affidavits. See Con-Defs.’ Heiser Br. at 14-15. Therefore,
Plaintiffs argue that the district court should not have granted   Plaintiffs’ insistence that they “genuinely were surprised that
the summary judgment without first giving notice to Plaintiffs     the Court would have any intention to convert the motion,”
and without permitting Plaintiffs discovery as to the statute of   Pls.’ Heiser Br. at 34, is not supported by the facts. They had
Nos. 02-6289/6311                    Ball, et al. v. Union     7    8      Ball, et al. v. Union               Nos. 02-6289/6311
                                    Carbide Corp., et al.                  Carbide Corp., et al.

notice that the district court might treat the motion as one for       The Sixth Circuit generally applies the abuse of discretion
summary judgment because such a motion was actually filed,          standard to the district court’s decision to deny discovery
and they responded to it.                                           whether such request was made on a motion or by a Rule
                                                                    56(f) affidavit. See Plott, 71 F.3d at 1196-97. It is not an
  Accordingly, the only remaining issue is whether the              abuse of discretion for the district court to deny the discovery
district court abused its discretion in denying Plaintiffs’         request when the party “makes only general and conclusory
request for discovery before it granted the summary judgment        statements [in its affidavit] regarding the need for more
motion.                                                             discovery and does not show how an extension of time would
                                                                    have allowed information related to the truth or falsity of the
   It is well-established that the plaintiff must receive “a full   [document] to be discovered.” Ironside v. Simi Valley Hosp.,
opportunity to conduct discovery” to be able to successfully        188 F.3d 350, 354 (6th Cir. 1999). It is also not an abuse of
defeat a motion for summary judgment. See Anderson v.               discretion to reject a Rule 56(f) affidavit as insufficient to
Liberty Lobby, Inc., 477 U.S. 242, 257 (1986); see also             support further discovery when the affidavit lacks “any
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“the plain      details” or “specificity.” Emmons v. McLaughlin, 874 F.2d
language of Rule 56(c) mandates the entry of summary                351, 357 (6th Cir. 1989).
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to              The affidavit in question here was submitted by Plaintiffs’
establish the existence of an element essential to that party's     attorney and included the following statements in support of
case, and on which that party will bear the burden of proof at      the discovery request:
trial”); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d
229, 231-32 (6th Cir. 1994) (“[in light of Anderson and                   In my opinion, to respond with due diligence,
Celotex,] a grant of summary judgment is improper if the                discharging my responsibilities to the class, to the
non-movant is given an insufficient opportunity for                     materials outside the pleadings which these defendants
discovery”).                                                            urge the Court to consider by converting their motion to
                                                                        one for summary judgment, would require obtaining the
   The district court’s decision to deny further discovery is,          results of substantial written and document discovery,
however, generally unreviewable unless the appellant has                and a number of depositions, on the subjects of when
filed “a Rule 56(f) affidavit or a motion that gives the district       plaintiffs’ claims accrued, and what information was
court a chance to rule on the need for additional discovery.”           released by any defendants to members of the public and
Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.                when and how such releases occurred, and on a variety of
1995). “Beyond the procedural requirement of filing an                  statements, and agents of defendants, over the years on
affidavit, Rule 56(f) has been interpreted as requiring that a          the subject of the safety of their operations and their
party making such a filing indicate to the district court its           impact upon the environment surrounding their
need for discovery, what material facts it hopes to uncover,            operations. Only this type of discovery would produce
and why it has not previously discovered the information.”              an adequate response to the many partial documents, and
Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.              partial collections of documents, submitted by
2000).                                                                  Defendants, who appear upon inspection of the
Nos. 02-6289/6311                   Ball, et al. v. Union     9    10    Ball, et al. v. Union                 Nos. 02-6289/6311
                                   Carbide Corp., et al.                 Carbide Corp., et al.

  documents to have selected some, and omitted others              affidavit was “irrelevant” to the issue of statute of limitations.
  bearing on the same subjects.                                    (JA 88.)
(JA 508; 1181.)                                                    B. Statute of Limitations.
  Plaintiffs argue that the district court erred because the         A district court’s decision to grant summary judgment is
affidavit was sufficient and specific. See Pls.’ Heiser Br. at     reviewed de novo. Higgason v. Stephens, 288 F.3d 868, 874
49. Contractor-Defendants counter that Plaintiffs’ discovery       (6th Cir. 2002).
request does not include any specific statements as to which
“material facts [they] hope[d] to uncover.” Con-Defs.’ Heiser           (i) Personal injury claims.
Br. at 18 (quoting Cacevic, 226 F.3d at 488). Contractor-
Defendants additionally argue that “when plaintiffs’ claims          The ultimate issue in this case is when the statute of
accrued” is not a discoverable fact, but is a legal question.      limitations was triggered. Plaintiffs maintain that the district
See id.                                                            court erred in granting summary judgment in favor of all
                                                                   Defendants on the grounds that Tennessee’s one-year statute
  The district court here stated (without explanation) that        of limitations barred Plaintiffs’ claims. Pls.’ Ball Br. at 25;
Plaintiffs “have not satisfied the requirements of Rule 56(f).”    see also Tenn. Code Ann. §§ 28-3-104(a)(1), (3) (2000).
(JA 87.) The district court additionally noted, however, that      Plaintiffs argue that the statute did not begin to run with
“even if they had, they have not described any helpful             respect to their personal injury claims until January 15, 2000,
discovery in light of the fact that it has been publicly debated   when the final report of the ORHASP was released.
since the early 1980s that toxins are present in the Oak Ridge
community.” (Id.) The district court further observed that the       “The statute of limitations commences to run when the
ORHASP final report contained no information “not                  plaintiff knows or has reason to know of the injury which is
previously available to the public.” (Id.) The district court      the basis of his action.” Sevier v. Turner, 742 F.2d 262, 273
took judicial notice of “such publicity” under Fed. R. Evid.       (6th Cir. 1984); Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn.
201. (JA 88.)                                                      1995) (the statute is triggered when the plaintiff becomes
                                                                   “aware of facts sufficient to put a reasonable person on notice
   The district court did not abuse its discretion in denying      that he has suffered an injury as a result of wrongful
Plaintiffs’ discovery request. Plaintiffs’ Rule 56(f) affidavit    conduct”). “A plaintiff has reason to know of his injury when
does not state how any discovery would have shed further           he should have discovered it through the exercise of
light on the issue of when the statute of limitations began to     reasonable diligence.” Sevier, 742 F.2d at 273. The Sixth
run. Plaintiffs merely hint at concealment on the part of          Circuit explained the duty to inquire as follows:
Defendants with respect to adverse health effects of the
emissions. See discussion, infra. The reality of toxic               [I]f greater than de minimis harm is discernable at the
emissions from the Oak Ridge facilities has, however, been in        time of the tortious event, then the time of the event rule
the public domain for some time. Accordingly, as the district        applies . . . [I]f the injured person sustains an injury
court stated, the discovery requested in Plaintiffs’ Rule 56(f)      which cannot itself be reasonably discovered, or the
                                                                     cause of which cannot reasonably be discovered, until
Nos. 02-6289/6311                         Ball, et al. v. Union        11     12       Ball, et al. v. Union                      Nos. 02-6289/6311
                                         Carbide Corp., et al.                         Carbide Corp., et al.

  some time following the tortious event and the running                      is whether a typical person would have been aware of a
  of the statue of limitations, courts often apply the                        possible link between emissions and health risks.3
  “discovery” rule, tolling the running of the statute of
  limitations to the date by which the plaintiff reasonably                      Given that local and national news media repeatedly
  should have discovered both cause and injury.                               covered the issue, and that the ORHASP publicized the
                                                                              progression of its study since its inception in 1992 and issued
Hicks v. Hines, Inc., 826 F.2d 1543, 1544 (6th Cir. 1987)                     its preliminary results throughout, Plaintiffs should have been
(quotations omitted); see Mich. United Food & Commercial
Workers Unions & Drug & Mercantile Employees Joint
Health & Welfare Fund v. Muir Co., 992 F.2d 594, 600 (6th                     unpersuasive. See P ls.’ Ball Br. at 41-44. The Hughes court reach ed its
Cir. 1993) (in defining the concept of due diligence, this court              conclusion about the plaintiff’s possession of constructive knowledge
has “looked to what event should have alerted the typical lay                 before noting the admission in the com plaint. Hughes, 215 F.3d at 548-
person to protect his or her rights.” (quoting Dixon v.                       49.
Anderson, 928 F.2d 212, 215 (6th Cir. 1991)); Overberg v.                          3
Lusby, 921 F.2d 90, 91 (6th Cir. 1990) (noting that plaintiff                       W ith respect to the interpretation of widespread publicity, Plaintiffs
                                                                              rely on the Ninth Circuit’s decision in O’Connor. See Pls.’ Heiser Br. at
had a duty to inquire when she became knowledgeable about                     53-55. The O’Connor court held that “[t]he d istrict court erred in
her medical condition); accord O’Connor v. Boeing North                       concluding as a ma tter of law that newspaper reports concerning the
Am., Inc., 311 F.3d 1139, 1146-48 (9th Cir. 2002) (accrual of                 Defend ants' facilities were sufficiently ‘num erous and notorious’ to
claim must be based on “knowledge” and not “mere                              impute knowledge of them to Plaintiffs.” O’Connor, 311 F.3d at 1152.
suspicion”).                                                                  The O’Connor court pronounced that the determination of widespread
                                                                              publicity
   As rightly observed by Contractor-Defendants, the public                        required a fact-intensive examination of the geo graphic scope of
record here was sufficient to alert Plaintiffs as to a possible                    the circulation of various publications, the level of saturation of
connection between emissions and health risks near Oak                             each publication within the relevant communities, the frequency
Ridge long before January 15, 2000. The rule in this Circuit                       with which articles on the Rocketdyne facilities appeared in each
is that “[w]here events receive . . . widespread publicity,                        publication, the prominence of those articles within the
                                                                                   publication, and the likelihood that a reaso nable person living in
plaintiffs may be charged with knowledge of their                                  Plaintiffs' various com munities at the same time as P laintiffs
occurrence.” Hughes v. Vanderbilt Univ., 215 F.3d 543, 548                         would have read such articles. These are all factual questions
(6th Cir. 2000) (quotation omitted). A plaintiff is charged                        unsuitab le for sum mary judgm ent.
with constructive knowledge even when she claims that “she
did not hear or read any of the media reports.” Hughes, 215                   Id. W e are of the belief that the O’Connor decision does not announce a
                                                                              bright-line rule with resp ect to the nature of pub licity about potentially
F.3d at 548. “The relevant inquiry in [such] cases . . . is an                hazardous conditions like Oak Ridge emissions. We also observe that the
objective one.” Id. (citations omitted).2 That is, the question               facts in O’C onnor are substantially different than the present case. The
                                                                              O’Connor opinion cited at least three prior studies that undermined the
                                                                              link betwe en the contam inants and the cancer. The O’Connor court
    2
                                                                              rightly observed that the media coverage did not “connect [the] dots”
      Plaintiffs’ attempt to distinguish Hughes on the basis that there was   dispersed by unclear scientific reports. Here, on the other hand, an
an admission by the named Hughes plaintiff in her complaint that she had      amb iguity to that degree was not present. There has been no scientific
actual knowledge of the facts sufficiently in advance of her suit is          repo rt negating the link b etween releases and health risks.
Nos. 02-6289/6311                           Ball, et al. v. Union         13     14       Ball, et al. v. Union                   Nos. 02-6289/6311
                                           Carbide Corp., et al.                          Carbide Corp., et al.

aware of a potential personal injury claim connected to Oak                      opposed to the disease itself. When the increased risk of
Ridge emissions or releases in 1998 or 1999 at the latest,                       disease is the injury claimed, the threshold of finding a “duty
when the ORHASP preliminary reports became available.                            to inquire” under Hicks is lower. That is, individuals should
(JA 213, 1391-1401, 1600-1603.) It is true that the ORHASP                       know that they are “at risk” as soon as a link between cancer
final report constitutes the first instance when a definite link                 and emissions becomes apparent. On the other hand, when
was established with finality. However, Plaintiffs do not                        the injury is contracting cancer, the claim will accrue when
allege that they belong to the two groups “most likely to have                   the plaintiff knew or should have known of the disease, not
been harmed” by the Oak Ridge releases.4 The issue of the                        just the risk of acquiring the disease. In that event, a plaintiff
final report did not by itself trigger Plaintiffs’ duty to inquire               must clearly plead that the injury occurred within the statute
under Hicks. Accordingly, Plaintiffs should have raised their                    of limitations period. Plaintiffs here face a formidable statute
claims sometime in the late 1990s when it became apparent                        of limitations hurdle. The reason is in part that individuals
that they may have had a viable claim.5                                          not similarly situated became plaintiffs in one and the same
                                                                                 suit.6 It is possible the weaker claims have obscured the
  More importantly, none of the Plaintiffs here claim that                       stronger claims. From this vantage point, however, it is
they have contracted a disease attributable to the toxic                         impossible to discern who would have a viable claim,
releases within the one-year statute of limitation period. Only                  especially given that no argument was advanced that plaintiffs
some of the Heiser Plaintiffs allege they have actually                          were diagnosed with any disease during the limitations
contracted cancer, while others claim increased risk of cancer.                  period. The district court noted correctly that “conceivably a
Yet, there must necessarily be different accrual dates when                      plaintiff with a still viable claim could exist (i.e., a person
the injury complained of is the increased risk of disease as                     who was diagnosed with thyroid cancer within one year of
                                                                                 filing suit).” (JA 88.). This opinion does not address such a
                                                                                 claim.
    4
      Even that finding had been released in draft form in March 1998 and           On a different note, we find Plaintiffs’ claims alleging the
reported in local newspapers. The first paragraph of a March 1998
Knoxville News-Sentinel article reads “Releases of radioactive iodine from       Contractor-Defendants’ “fraudulent acts” of concealment to
Oak Ridge National Laborato ry during the 1940 s and ‘50s p robably              be without merit. Pls.’ Ball Br. at 45. Plaintiffs claim no
exposed thousands of children to radiation and increased their lifetime          specific act of concealment, but underline that a number of
risk of developing thyroid cancer, scientists repo rted T hursday in             the articles that covered Oak Ridge were equivocal and
preliminary findings.” Report Ties Releases of Iodine, K NOXVILLE N E W S-       contained phrases such as “no harm” from the emissions, “no
S ENTINEL, March 20, 1998. An Oak Ridg er article of the same date had
the headline: “Releases Linked to Thyroid Cancer.” T HE O AK R IDGER ,           link” to cancer, and “no health concern.” Id. 52; Pls.’ Heiser
May 20, 1998.                                                                    Br. at 53. Plaintiffs also point to “national security
                                                                                 classification” of information regarding Oak Ridge. Pls.’ Ball
    5                                                                            Br. at 38.
      Plaintiffs’ attorney specifically states in his affidavit that a lawsuit
during the 1990s would have been premature and frivolous under Fed. R.
Civ. P. 11. (JA 509.) “A principal reason was that most relevant
information was classified, unrelease d, and therefore unavailable and
would remain unavailable.” (Id.) However, as urged by Contractor-                     6
Defend ants, the stand ard is an objective one and does not relate to what            Indeed, the district court devoted most of its opinion to explaining
Plaintiffs’ attorney m ay subjectively have b elieved or no t believe d.         why a class certification of these ind ividuals was no t appropriate.
Nos. 02-6289/6311                          Ball, et al. v. Union        15     16    Ball, et al. v. Union                 Nos. 02-6289/6311
                                          Carbide Corp., et al.                      Carbide Corp., et al.

  We recognize that when a government project such as Oak                      Freeman v. Pitts, 503 U.S. 467 (1992); Columbus Board of
Ridge is shrouded in secrecy, it may be difficult to collect the               Education v. Penick, 443 U.S. 449 (1979); and Dayton Board
necessary facts to make a case. However, it was well known                     of Education v. Brinkman, 443 U.S. 526 (1979). Plaintiffs
that plants in Oak Ridge engaged in nuclear weapons                            also rely on various affirmative action cases for the
manufacturing and other nuclear research, that they released                   proposition that “affirmative action may be used to eradicate
toxic materials, and that such toxic materials may be                          continuing effects (i.e., “vestiges”) of discrimination that
hazardous to human health depending on the dosage. (JA                         occurred in the past.” Pls.’ Ball Br. at 33-34. The cases cited
303-12; 988-1001; 1599-1603.) Plaintiffs needed to present                     by Plaintiffs include Wygant v. Jackson Board of Education,
to this court with sufficient clarity and “particularity” what                 476 U.S. 267 (1986); Fullilove v. Klutznick, 448 U.S. 448
they claim was fraudulently concealed by government                            (1980) (including the concurring opinion by Justice Powell);
officials and contractors and how that affected their case.                    United Steelworkers of America v. Weber, 443 U.S. 193
Dayco v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394                         (1979); Regents of University of California v. Bakke, 438 U.S.
(6th Cir. 1975). We find nothing in the record of this case                    265 (1978); Hazelwood School District v. United States, 433
that exhibits any concealment motivated by bad faith on the                    U.S. 299 (1977); and Hammon v. Barry, 813 F.2d 412 (D.C.
part of Defendants. We further note that the duty to inquire                   Cir. 1987).
applies even when the government may have engaged in
concealment of facts. See Kronisch v. United States, 150 F.3d                     Contractor-Defendants counter that Plaintiffs’ alleged
112, 121 (2d Cir. 1998).7                                                      exposure to Oak Ridge emissions is not a “vestige” of racial
                                                                               discrimination. Con-Defs.’ Ball Br. at 19-22. Contractor-
     (ii) Civil rights claims.                                                 Defendants alternatively argue that they have no ongoing
                                                                               affirmative duty to remedy the effects of discrimination by
   The Ball Plaintiffs additionally argue that the statute of                  governmental entities. Id. at 22, 29. Contractor-Defendants
limitations does not apply because Contractor-Defendants                       finally argue that, in any event, there is no affirmative duty to
have a continuing affirmative duty to remedy effects of                        remedy the effects of residential segregation.
exposure to emissions as such effects constitute “vestiges” of
historical de jure racial segregation. Pls.’ Ball Br. at 28.                     The district court observed that “the Scarboro community
Plaintiffs charge that “the continuing existence of Scarboro as                has been integrated since the 1950s.” (JA 89.) The district
a segregated community is attributable (and attributed by the                  court went on to say: “To find otherwise would mean the
Amended Complaint) to all Defendants’ unconscionable                           statute of limitations would never be tolled unless every black
actions.” Pls.’ Ball Br. at 29. Plaintiffs attempt to derive                   person left Scarboro.” (Id.) The district court specifically
support from a number of school desegregation cases, such as                   discounted the de facto discrimination cases regarding school
                                                                               desegregation finding them “not applicable here.” (Id.)
    7                                                                            The district court is correct. The factual patterns of school
       Mo reover, we are of the opinion that Contractor-Defendants’ raising
the issue of statute of limitations gave Plaintiffs sufficient notice of the   desegregation cases bear little resemblance to the facts alleged
viability of this issue w ith respe ct to G overnment-Defendants.              here. Moreover, Plaintiffs do not seek to eliminate the
Accordingly, we do not believe that the district court erred in resolving      “vestige” of past discrimination by asking for the
this issue with resp ect to G overnment-Defendants as well. Cf. Haskell v.
Wa shing ton T ownship, 864 F.2d 12 66, 1273 n.3 (6th Cir. 1988).
                                                                               desegregation of Scarboro. See Con-Defs.’ Ball Br. at 20.
Nos. 02-6289/6311                       Ball, et al. v. Union       17    18       Ball, et al. v. Union                      Nos. 02-6289/6311
                                       Carbide Corp., et al.                       Carbide Corp., et al.

“Rather, [they] are seeking remedies for potential personal               have any such duty under the school desegregation and
injuries and property damage relating to alleged exposure to              affirmative discrimination cases.
Oak Ridge emissions.”8 Id. at 20-21. As Contractor-
Defendants correctly explain:                                                On the issue of affirmative duty, the case Plaintiffs rely on
                                                                          is distinguishable. In Hills v. Gautreaux, the Supreme Court
  [T]he fact that [Plaintiffs’] alleged personal injuries and             sustained “[a]n order directing HUD to use its discretion
  property damage might not have occurred (or might not                   under the various federal housing programs to foster projects
  have been so serious) but for the racial discrimination                 located in white areas of the Chicago housing market,”
  that led to the establishment of Scarboro in the first                  finding that such an order would be “consistent with and
  instance does not mean that the discrimination was the                  supportive of well-established federal housing policy.”
  proximate cause of those injuries and that damage. The                  425 U.S. 284, 301 (1976). HUD was ordered to remedy its
  concept of the “vestiges” of discrimination has never                   own “wrong” of “confin[ing black tenants] to segregated
  been stretched so far as to encompass anything bad that                 public housing.” Id. at 299. In this case, there is no
  happens to someone that might not have happened but                     allegation here that Contractor-Defendants initiated the
  for racial segregation. Under [P]laintiffs’ logic, anything             segregation.
  bad that happens as a result of Scarboro’s location can be
  deemed a “vestige” of discrimination, since Scarboro                      Accordingly, we find that neither the United States
  itself would not exist but for discrimination.                          Constitution nor federal civil rights statutes afford the relief
                                                                          Plaintiffs ask.9
Id. at 21. It would indeed be a stretch to rely on the school
desegregation cases to require Contractor-Defendants to                   C. Class certification.
eliminate any lingering effects of past governmental
discrimination by paying for cleanup and medical monitoring.                Plaintiffs next challenge the district court’s denial of their
                                                                          class action certification motion. In Heiser, Plaintiffs sought
   The affirmative action cases Plaintiffs reference are                  to certify as a Rule 23(b)(2) or Rule 23(b)(3) class:
similarly not dispositive. Those cases stand for the
proposition that affirmative action is not prohibited by the                  [P]ersons who lived in Oak Ridge, Tennessee, or
Constitution or the federal civil rights statutes. See Con-                 otherwise resided in a nearby geographic area under the
Defs.’ Ball Br. at 26-27. These cases do not, however, go as                influence of the Defendants from 1943 to the present
far as to interpret the Constitution and the federal civil rights           who have not yet contracted thyroid cancer but who have
statutes as mandating government contractors to remedy past                 been exposed and put at risk by Defendants’ act.
discrimination. That is, contractors have no affirmative duty
to eliminate current effects of past discrimination by                    In Ball, Plaintiffs sought to certify as a Rule 23(b)(2) class:
governmental entities. Neither do the government officials
                                                                               9
                                                                                Because we find the Ball Plaintiffs’ civil rights claim s without merit
    8
                                                                          in any event, we need not reach the issue of which statute of limitations
     See supra note 1, regarding the remedy the Ball Plaintiffs are now   applies to the claims: the four-year statute of limitations of 28 U.S.C.
seeking.                                                                  § 16 58, the one-year T ennessee statute, or another statute.
Nos. 02-6289/6311                           Ball, et al. v. Union           19   20    Ball, et al. v. Union                 Nos. 02-6289/6311
                                           Carbide Corp., et al.                       Carbide Corp., et al.

  [A]ll individuals of African American descent who                              certification is appropriate. See Pls.’ Ball Br. at 53. Plaintiffs
  currently live in and/or currently own property in                             also challenge the district court’s focus on individualized
  Scarboro and/or once lived in the Scarboro community                           issues of proof with respect to commonality because they
  and continue to frequently visit the Scarboro community.                       assert that the predominance analysis is inappropriate in
                                                                                 analyzing commonality. See id. at 56. Plaintiffs explain that
(JA 203.) The district court first emphasized that class action                  “[i]f the issue of liability is common to all class members then
certification is generally not appropriate in mass tort cases.                   Rule 23(a)(2) commonality and Rule 23(a)(3)’s typicality
The district court further denied the motion because it found                    requirements are satisfied.” Id. at 57 (citing Mayer v. Mylod,
that Plaintiffs failed to show commonality and typicality of                     988 F.2d 635, 640 (6th Cir. 1993)). Plaintiffs identify the
claims, and failed to meet the adequate representation                           commonality issue as Defendants’ obligation to remedy
requirement under Fed. R. Civ. P. 23(a).10                                       present discriminatory effects of past discrimination, and the
                                                                                 typicality issue as Defendants’ same unlawful conduct being
  Plaintiffs charge that the district court abused its discretion                directed at both Plaintiffs and the other members of the
when it ignored “five separate sworn affidavits or declarations                  putative class. See id. at 54, 59.
submitted” in support of their class certification motion. Pls.’
Heiser Br. at 57. Plaintiffs further charge that the district                      Contractor-Defendants claim that the Ball case “is
court abused its discretion by treating the Ball Plaintiffs as a                 essentially the Heiser case, dressed up as a civil rights case.”
subclass of the Heiser Plaintiffs because, where race                            Con-Defs.’ Ball Br. at 32 (emphasis in the original).
discrimination is alleged and injunctive relief is sought, class                 Contractor-Defendants maintain that the true remedy sought
                                                                                 here is compensation for personal injury, property damage,
                                                                                 and medical monitoring, all of which are individual remedies.
    10                                                                           See id. at 36.
       Rule 23(a) reads as follows:
    Prerequisites to a Class Action. One or more memb ers of a class
    may sue or be sue d as represe ntative p arties on behalf of all only          As to the proposed class in Heiser, the district court found
    if (1) the class is so nume rous that joinder of all me mbe rs is            that the commonality requirement is not satisfied because
    impracticable, (2) there are questions of law or fact comm on to             “there are multiple issues not common to all class members.”
    the class, (3) the claims or defenses of the representative parties
    are typical of the claims or defenses of the class, and (4) the
                                                                                 (JA 77-78.) The district court further found that the
    representative parties will fairly and adequately protect the                individual Plaintiffs’ claims were not typical of the claims of
    interests of the class.                                                      the class as a whole because “many of the class members
                                                                                 were not even living in Oak Ridge in the 1950s, which is
Fed. R. Civ. P. 23 (a). Mo reover, an “action may be m aintained as a class      when the most significant emissions complained of occurred.”
action if the prerequisites of subdivision (a) are satisfied, and in addition:
                                                                                 (JA 78.) For similar reasons, the district court also found that
    ...                                                                          Plaintiffs were not adequate representatives of the class.
    (2) the party opposing the class has acted or refused to act on
    grounds generally applicable to the class, thereby m aking                     As to the proposed class in Ball, the district court
    app ropriate final injunctive relief, or corresponding declaratory           observed:
    relief with respect to the class as a whole . . . .”

Fed. R. Civ. P. 23(b)(2).
Nos. 02-6289/6311                    Ball, et al. v. Union    21    22     Ball, et al. v. Union                         Nos. 02-6289/6311
                                    Carbide Corp., et al.                  Carbide Corp., et al.

    Even if it is assumed there are common issues with              pass at least one of the tests set forth in Rule 23(b).”11 Id.
  regard to de jure segregation and whether vestiges of that        (citation omitted).
  segregation remain in Scarboro, those questions do not
  predominate over the innumerable individualized                      Here, the district court did not abuse its discretion in
  questions that would exist with respect to each plaintiff.        denying class certification. The district court analyzed the
  Each member of the proposed class lived in Scarboro for           Rule 23(a) requirements in concluding that Plaintiffs did not
  a discrete period of time and was exposed to mercury or           have claims common and typical to the class. The district
  other toxins in a discrete way. Some may have lived               court was correct in treating the Ball plaintiffs as a subset of
  there for fifty or more years and some for a week or less.        the Heiser plaintiffs because of the same underlying claim of
  Some were there in the late 1950s when emissions were             environmental injury in both. The Ball case is “simply not a
  greatest and some were not. A few may have consumed               case about racial discrimination in the abstract, but a case
  milk from a backyard farm animal in the 1950s, most did           alleging that racial discrimination caused environmental
  not. As in Heiser, each individual plaintiff, if he or she        injuries.” Con-Defs.’ Ball Br. at 40. Even though liability
  has a claim, has a highly individualized claim based on           issues may have been common to the putative class, by
  his or her total exposure time, exposure period, medical          seeking medical monitoring and environmental cleanup of
  history, diet, sex, age, and a myriad of other factors. The       property, Plaintiffs have raised individualized issues. Each
  court finds that the individualized issues far outweigh           individual’s claim was for that reason necessarily proportional
  any common ones.                                                  to his or her exposure to toxic emissions or waste. Similarly,
                                                                    the Heiser Plaintiffs’ claims depended on their period of
(JA 80-81.) The district court then pointed to differences          residency in Oak Ridge and levels of exposure. Also, the
among the named Ball Plaintiffs, such as the duration of time       “named plaintiffs who already have thyroid cancer have
they lived in Scarboro or their property ownership. (JA 81.)        fundamentally different interests than those named and
The district court opined that, therefore, “there is no ‘typical’   unnamed plaintiffs who do not.” Con-Defs.’ Heiser Br. at 47
Scarboro resident for purposes of Rule 23.” Finally, the            (emphasis in the original). Indeed, the Heiser Plaintiffs who
district court noted that the proposed class in Ball, as in         had thyroid cancer were not even members of the proposed
Heiser, was too “vague.” (JA 82.)                                   class, which was defined as consisting of individuals who
                                                                    were at risk of developing the cancer.
  The district court’s decision to deny class certification is
reviewed for abuse of discretion. See Sprague v. Gen. Motors           Furthermore, Plaintiffs’ reliance on Sterling v. Velsicol
Corp., 133 F.3d 388, 397 (6th Cir. 1998) (en banc). The             Chemical Corporation, 855 F.2d 1188, 1197 (6th Cir. 1988),
district court must “rigorously” analyze the requirements of        is misplaced. In Sterling, this court observed that “the mere
Rule 23. See id. (citation omitted). “No class that fails to
satisfy all four of the prerequisites of Rule 23(a) may be
certified, and each class meeting those prerequisites must also          11
                                                                            For that reason and contrary to Plaintiffs’ assertion, the district
                                                                    court could no t have certified the Rule 2 3(b)(2 ) class without first finding
                                                                    that all the req uirements of Rule 23(a) have been satisfied. The corollary
                                                                    is that the district court need not have reached the Rule 23(b) issues after
                                                                    finding the requirements of R ule 23 (a) have not been met.
Nos. 02-6289/6311                          Ball, et al. v. Union        23     24    Ball, et al. v. Union                 Nos. 02-6289/6311
                                          Carbide Corp., et al.                      Carbide Corp., et al.

fact that questions peculiar to each individual member of the                  error for the district court to refer to the fact that Plaintiffs’
class remain after the common questions of the defendant's                     individualized claims predominated over their claims in
liability have been resolved does not dictate the conclusion                   common.
that a class action is impermissible.” 855 F.2d at 1197. The
court went on to say that “where the [one] defendant's liability               D. Sovereign immunity.
can be determined on a class-wide basis because the cause of
the disaster is a single course of conduct which is identical for                Plaintiffs also challenge the grant of summary judgment as
each of the plaintiffs, a class action may be the best suited                  to Government-Defendants on the basis that Government-
vehicle to resolve such a controversy.” Id. Here, however,                     Defendants did not request that their motion be treated as a
there are multiple Defendants with presumably differing                        Rule 56 motion. See Pls.’ Ball Br. at 23. Government-
liability levels, if any. Accordingly, there is no “single course              Defendants respond that the district court should have
of conduct.” Therefore, Sterling is distinguishable on its                     dismissed the case as against them for lack of subject matter
facts.     Moreover, Sterling affirmed the class action                        jurisdiction. See Gov-Defs.’ Br. at 12. Government-
certification, emphasizing the district court’s discretion in                  Defendants contend that because Secretary Abraham and Mr.
making such decisions.                                                         Norton are sued in their official capacity as officers of a
                                                                               governmental agency, they are immune from suit, and that
  Finally, the fact that the district court’s discussions of the               sovereign immunity has not been waived for any claim
commonality and typicality issues were intertwined is not                      against them. Id. at 12-13.
fatal. We have recognized that the “commonality and
typicality requirements of Rule 23(a) tend to merge.”                            This court reviews de novo determinations on questions of
Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir.                   subject matter jurisdiction. See Singleton v. United States,
1998). Plaintiffs additionally charge that the district court                  277 F.3d 864, 870 (6th Cir. 2002). Here, the district court did
should not have used the term “predominance” found in Rule                     not rule on Government-Defendants’ motion to dismiss. In
23(b)(3) in its analysis of commonality and typicality. 12                     granting the summary judgment motion in favor of all
However, “the predominance requirement of Rule 23(b)(3)                        Defendants, the district court merely remarked that its ruling
[has been found] similar to the requirement of Rule 23(a)(3).”                 “pretermit[ed] other issues including those raised by the
Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 623 n.18                          United States.” (JA 89, 215.)
(1997). As any claim the class may have had in common
threatened to splinter into individualized claims, it was not                     The district court should have explicitly dismissed
                                                                               Plaintiffs’ claims against Government-Defendants. It is true
                                                                               that federal courts have jurisdiction to provide injunctive
    12                                                                         relief against unconstitutional actions by federal officials. See
        According to Rule 23(b )(3), an “action may be maintained as a
class action if the prerequisites of subdivision (a) are satisfied, and in
                                                                               Bell v. Hood, 327 U.S. 678 (1946). However, the district
add ition:                                                                     court already ruled against Plaintiffs’ civil rights claims. As
     ...                                                                       explained above, no case cited mandates the remedy sought
(3) the court finds that the questions of law or fact common to the            by Plaintiffs under the facts of this case. On the other hand,
members of the class predominate over any questions affec ting only            it is well established that the United States as a sovereign
individual mem bers, and that a class action is superior to o ther available   cannot be sued without its explicit consent. See Hercules,
methods for the fair and efficient adjudication of the controversy.”
Nos. 02-6289/6311                   Ball, et al. v. Union   25
                                   Carbide Corp., et al.

Inc. v. United States, 516 U.S. 417, 422 (1996). Moreover,
sovereign immunity is a defense in suits against government
officials when sued in their official capacity. See Kentucky v.
Graham, 473 U.S. 159, 166-67 (1985). Absent such consent,
the district court should have dismissed the claims against
Government-Defendants instead of including Government-
Defendants’ objections in its summary judgment ruling.
Nevertheless, remand is unnecessary since the case is
dismissed in any event against all Defendants.
                        CONCLUSION
  For all the reasons stated above, we AFFIRM the judgment
of the district court.
