Stephen Heiser, et al. (02-6311) v. Union Carbide Corp.

*The Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0334A (6th Cir.)
File Name: 04a0334a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FANNIE BALL, et al.
(02-6289); STEPHEN HEISER,
et al. (02-6311),
Plaintiffs-Appellants,
v.
UNION CARBIDE CORP., et al.,
Defendants-Appellees.
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Nos. 02-6289/6311
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville
Nos. 01-00022; 01-00037—James H. Jarvis, District Judge.
Argued: April 27, 2004
Decided and Filed: September 30, 2004
Before: GUY and GILMAN, Circuit Judges; BARZILAY,
Judge.*
2 Ball, et al. v. Union
Carbide Corp., et al.
Nos. 02-6289/6311
_________________
COUNSEL
ARGUED: Edmund L. Carey, Jr., BARRETT, JOHNSTON
& PARSLEY, Nashville, Tennessee, for Appellants.
Christopher Landau, KIRKLAND & ELLIS, Washington,
D.C., John T. Buckingham, ASSISTANT UNITED STATES
ATTORNEY, Knoxville, Tennessee, for Appellees.
ON BRIEF: Edmund L. Carey, Jr., George E. Barrett,
BARRETT, JOHNSTON & PARSLEY, Nashville,
Tennessee, for Appellants. Christopher Landau, Susan E.
Kearns, KIRKLAND & ELLIS, Washington, D.C., John T.
Buckingham, ASSISTANT UNITED STATES ATTORNEY,
Knoxville, Tennessee, Kevin T. Van Wart, KIRKLAND &
ELLIS, Chicago, Illinois, E. H. Rayson, Thomas M. Hale,
KRAMER, RAYSON, LEAKE, RODGERS & MORGAN,
Knoxville, Tennessee, for Appellees.
_______________________
AMENDED OPINION
_______________________
JUDITH M. 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

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1The Ball Plaintiffs no longer ask for d amages, Pls.’ B all Br. at 1-2,
19, even though initially they sought damages along with injunctive relief
and never amended their comp laint to that effect. (JA 51, 5 2.)
Contracto r-Defendants argue that the Ball Plaintiffs cannot “amend” their
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 issue are without merit,
as exp lained below.
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
4 Ball, et al. v. Union
Carbide Corp., et al.
Nos. 02-6289/6311
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.)

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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
6 Ball, et al. v. Union
Carbide Corp., et al.
Nos. 02-6289/6311
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

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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 (1986); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (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
discovery”).
The district court’s decision to deny further discovery is,
however, generally unreviewable unless the appellant has
filed “a Rule 56(f) affidavit or a motion that gives the district
court a chance to rule on the need for additional discovery.”
Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.
1995). “Beyond the procedural requirement of filing an
affidavit, Rule 56(f) has been interpreted as requiring that a
party making such a filing indicate to the district court its
need for discovery, what material facts it hopes to uncover,
and why it has not previously discovered the information.”
Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.
2000).
8 Ball, et al. v. Union
Carbide Corp., et al.
Nos. 02-6289/6311
The Sixth Circuit generally applies the abuse of discretion
standard to the district court’s decision to deny discovery
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
abuse of discretion for the district court to deny the discovery
request when the party “makes only general and conclusory
statements [in its affidavit] regarding the need for more
discovery and does not show how an extension of time would
have allowed information related to the truth or falsity of the
[document] to be discovered.” Ironside v. Simi Valley Hosp.,
188 F.3d 350, 354 (6th Cir. 1999). It is also not an abuse of
discretion to reject a Rule 56(f) affidavit as insufficient to
support further discovery when the affidavit lacks “any
details” or “specificity.” Emmons v. McLaughlin, 874 F.2d
351, 357 (6th Cir. 1989).
The affidavit in question here was submitted by Plaintiffs’
attorney and included the following statements in support of
the discovery request:
In my opinion, to respond with due diligence,
discharging my responsibilities to the class, to the
materials outside the pleadings which these defendants
urge the Court to consider by converting their motion to
one for summary judgment, would require obtaining the
results of substantial written and document discovery,
and a number of depositions, on the subjects of when
plaintiffs’ claims accrued, and what information was
released by any defendants to members of the public and
when and how such releases occurred, and on a variety of
statements, and agents of defendants, over the years on
the subject of the safety of their operations and their
impact upon the environment surrounding their
operations. Only this type of discovery would produce
an adequate response to the many partial documents, and
partial collections of documents, submitted by
Defendants, who appear upon inspection of the

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

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

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

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

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

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10Rule 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 parties on behalf of all only
if (1) the class is so numerous that joinder of all membe rs is
impracticable, (2) there are questions of law or fact comm on to
the class, (3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23 (a). Mo reover, an “action may be m aintained as a class
action if the prerequisites of subdivision (a) are satisfied, and in addition:
. . .
(2) the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby m aking
app ropriate final injunctive relief, or corresponding declaratory
relief with respect to the class as a whole . . . .”
Fed. R. Civ. P. 23(b)(2).
[A]ll individuals of African American descent who
currently live in and/or currently own property in
Scarboro and/or once lived in the Scarboro community
and continue to frequently visit the Scarboro community.
(JA 203.) The district court first emphasized that class action
certification is generally not appropriate in mass tort cases.
The district court further denied the motion because it found
that Plaintiffs failed to show commonality and typicality of
claims, and failed to meet the adequate representation
requirement under Fed. R. Civ. P. 23(a).10
Plaintiffs charge that the district court abused its discretion
when it ignored “five separate sworn affidavits or declarations
submitted” in support of their class certification motion. Pls.’
Heiser Br. at 57. Plaintiffs further charge that the district
court abused its discretion by treating the Ball Plaintiffs as a
subclass of the Heiser Plaintiffs because, where race
discrimination is alleged and injunctive relief is sought, class
20 Ball, et al. v. Union
Carbide Corp., et al.
Nos. 02-6289/6311
certification is appropriate. See Pls.’ Ball Br. at 53. Plaintiffs
also challenge the district court’s focus on individualized
issues of proof with respect to commonality because they
assert that the predominance analysis is inappropriate in
analyzing commonality. See id. at 56. Plaintiffs explain that
“[i]f the issue of liability is common to all class members then
Rule 23(a)(2) commonality and Rule 23(a)(3)’s typicality
requirements are satisfied.” Id. at 57 (citing Mayer v. Mylod,
988 F.2d 635, 640 (6th Cir. 1993)). Plaintiffs identify the
commonality issue as Defendants’ obligation to remedy
present discriminatory effects of past discrimination, and the
typicality issue as Defendants’ same unlawful conduct being
directed at both Plaintiffs and the other members of the
putative class. See id. at 54, 59.
Contractor-Defendants claim that the Ball case “is
essentially the Heiser case, dressed up as a civil rights case.”
Con-Defs.’ Ball Br. at 32 (emphasis in the original).
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.
See id. at 36.
As to the proposed class in Heiser, the district court found
that the commonality requirement is not satisfied because
“there are multiple issues not common to all class members.”
(JA 77-78.) The district court further found that the
individual Plaintiffs’ claims were not typical of the claims of
the class as a whole because “many of the class members
were not even living in Oak Ridge in the 1950s, which is
when the most significant emissions complained of occurred.”
(JA 78.) For similar reasons, the district court also found that
Plaintiffs were not adequate representatives of the class.
As to the proposed class in Ball, the district court
observed:

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

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

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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.

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