Case: 12-15424     Date Filed: 10/14/2014   Page: 1 of 15


                                                                         [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-15424
                           ________________________

                      D.C. Docket No. 1:11-md-02218-JOF

ERICA Y. BRYANT,
LEANDRO PEREZ,
INGRID PEREZ JACIR,
JOHN EDWARDS,
as Father and next friend of his
daughter, decedent Jennifer Edwards,
CONNIE EDWARDS,
as Mother and next friend of her
daughter, decedent Jennifer Edwards, et al.,
                                                             Plaintiffs – Appellees,
                                                                 Cross Appellants,
JAMES NATHANIEL DOUSE,
                                                               Plaintiff – Appellee,

                                      versus

UNITED STATES OF AMERICA,
                                                            Defendant – Appellant,
                                                                  Cross Appellee.

                           ________________________

                   Appeals from the United States District Court
                       for the Northern District of Georgia
                          ________________________
                                (October 14, 2014)
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Before TJOFLAT and WILSON, Circuit Judges, and BUCKLEW, ∗ District Judge.

TJOFLAT, Circuit Judge:

       This appeal arises out of a multi-district litigation, in which multiple

plaintiffs and their family members allege that they experienced various health

problems after being exposed to toxic substances in the drinking water while living

at Camp Lejeune, a military base in North Carolina. The plaintiffs brought this

action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§

2671–2680. The United States moved to dismiss the case, arguing that the North

Carolina statute of repose, which provided that “no cause of action shall accrue

more than 10 years from the last act or omission of the defendant giving rise to the

cause of action,” N.C. Gen. Stat. § 1-52(16) (2010), precluded the plaintiffs from

bringing this case.1

       The District Court disagreed, concluding that a provision of the

Comprehensive Environmental Response, Compensation, and Liability Act




       ∗
          Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
       1
          The Government also sought to dismiss the plaintiffs’ complaints on the grounds that
their claims are barred by the Feres doctrine and that any post-discharge failure-to-warn claims
are barred by the discretionary-function exception to the Federal Tort Claims Act. The District
Court only addressed and certified the statute-of-repose issue to this court. Consequently, we do
not discuss, and we express no opinion on, the Government’s other asserted defenses.

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(CERCLA), 42 U.S.C. § 9568,2 preempted North Carolina’s statute of repose. The

court separately ruled that North Carolina’s statute of repose does not contain an

exception for latent diseases.

       The District Court then certified two questions for interlocutory appeal, 3 and

this court permitted the appeal. The two questions presented are (I) whether

CERCLA preempts the North Carolina statute of repose, and (II) whether the

North Carolina statute of repose contains an exception for latent diseases. We

address each question in turn.


       2
           The relevant provision of CERCLA, 42 U.S.C. § 9568(a)(1), provides:
       In the case of any action brought under State law for personal injury, or property
       damages, which are caused or contributed to by exposure to any hazardous
       substance, or pollutant or contaminant, released into the environment from a
       facility, if the applicable limitations period for such action (as specified in the
       State statute of limitations or under common law) provides a commencement date
       which is earlier than the federally required commencement date, such period shall
       commence at the federally required commencement date in lieu of the date
       specified in such State statute.
“The term ‘applicable limitations period’ means the period specified in a statute of limitations
during which a civil action referred to in subsection (a)(1) of this section may be brought.” 

“The term ‘commencement date’ means the date specified in a statute of
limitations as the beginning of the applicable limitations period.” 

“[T]he term
‘federally required commencement date’ means the date the plaintiff knew (or reasonably should
have known) that the personal injury or property damages referred to in subsection (a)(1) of this
section were caused or contributed to by the hazardous substance or pollutant or contaminant
concerned.” 

       3
         28 U.S.C. § 1292(b) provides that in a civil action, a district court may certify a
question of law to a court of appeals if the district court concludes that an order not otherwise
appealable “involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation.”


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                                               I.

       After the parties briefed this case, but before oral argument, the Supreme

Court granted a petition for a writ of certiorari in a separate case out of the Fourth

Circuit, which presented the question of whether CERCLA preempts North

Carolina’s statute of repose.4 On June 9, 2014, the Court determined that

CERCLA, specifically 42 U.S.C. § 9658, does not preempt North Carolina’s

statute of repose. See generally CTS Corp. v. Waldburger, ___ U.S. ___, 134 S.

Ct. 2175, 

(2014). Thus, we have the answer to the first question

presented in this interlocutory appeal. CERCLA does not preempt North

Carolina’s statute of repose.

                                              II.

       We must, therefore, turn to the second question presented in this appeal,

whether the North Carolina statute of repose includes an exception for latent

diseases. At the time the plaintiffs brought this action, the statute of repose

provided:

       Unless otherwise provided by statute, for personal injury or physical
       damage to claimant’s property, the cause of action . . . shall not accrue


       4
         The Fourth Circuit decided that CERLCA preempted the statute of repose. See
Waldburger v. CTS Corp., 

, 444–45 (4th Cir. 2013), rev’d, ___ U.S. ___, 

, 

(2014). Because the plaintiffs in the case brought a nuisance action, the
court did not address the issue of whether the North Carolina statute of repose contained an
exception for latent diseases.

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       until bodily harm to the claimant or physical damage to his property
       becomes apparent or ought reasonably to have become apparent to the
       claimant, whichever event first occurs. Provided that no cause of
       action shall accrue more than 10 years from the last act or omission of
       the defendant giving rise to the cause of action.
N.C. Gen. Stat. § 1-52(16) (2010). On its face, the text of the statute contains no

exception for latent diseases, and no other North Carolina statute excepts latent

diseases from the statute of repose. The plain text of the statute is unambiguous.5




       5
          The plaintiffs rely on Jones v. United States, 

(E.D.N.C. 2010), to
support their contention that the statute of repose was ambiguous as to whether it contained a
latent-disease exception. Although the District Court in that case held that the statute of repose
did not apply to latent diseases, it reached that conclusion by bypassing the statutory text
entirely. See 

(“The Court finds that § 1-52(16)’s statute of repose has an exception for
latent diseases. The Court bases this decision on the statute’s legislative history, case law, and
state public policy.”). In an order denying the defendant’s motion for reconsideration, the court
confirmed that the statute’s text did not provide an exception for latent diseases; it ignored the
text, however, because, according to the court, “[a]dopting § 1-52(16)’s literal meaning would
lead to absurd results.” Jones v. United States, No. 7:09-CV-106, 

, at *2
(E.D.N.C. Feb. 3, 2011).
         The absurd result, according to the court, was that potential claimants would be denied an
opportunity to seek relief before they became aware that they were ill. But that is the point of a
statute of repose; it “bar[s] any suit that is brought after a specified time since the defendant
acted . . . , even if the period ends before the plaintiff has suffered a resulting injury.” Black’s
Law Dictionary 1546 (9th ed. 2009). “Statutes of repose effect a legislative judgment that a
defendant should be free from liability after the legislatively determined period of time.” CTS
Corp. v. Waldburger, ___ U.S. ___, ___, 

, 2183, 

(2014)
(quotation marks omitted).
        “When the words of a statute are unambiguous . . . judicial inquiry is complete.” Merritt
v. Dillard Paper Co., 

, 1186 (11th Cir. 1997) (internal quotation marks omitted);
see also Carolina Power & Light Co. v. City of Asheville, 

, 518, 

,
722 (2004) (“Where the statutory language is clear and unambiguous, the Court does not engage
in judicial construction but must apply the statute to give effect to the plain and definite meaning
of the language.” (internal quotation marks omitted)). Here, the statutory language is plain. We
therefore decline to follow Jones in conjuring an exception where the plain text of the statute of
repose provides none.

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       Shortly after the Supreme Court decided Waldburger, however, the

Governor of North Carolina approved Session Law 2014-17, which amended the

statute of repose. The General Assembly also passed, and the Governor signed,

Session Law 2014-44, which made several technical amendments to Session Law

2014-17.6 We then requested supplemental briefing from the parties on the

following question: Whether, in light of the enactment of N.C. Session Laws 2014-

17 and 2014-44, the plaintiffs’ actions are barred by North Carolina’s statute of

repose (N.C. Gen. Stat. § 1-52(16))? 7

       The statute of repose now reads:

       Unless otherwise provided by law, for personal injury or physical
       damage to claimant’s property, the cause of action . . . shall not accrue
       until bodily harm to the claimant or physical damage to his property
       becomes apparent or ought reasonably to have become apparent to the
       claimant, whichever event first occurs. Except as provided in G.S.
       130A-26.3, no cause of action shall accrue more than 10 years from
       the last act or omission of the defendant giving rise to the cause of
       action.




       6
         Session Law 2014-44 is titled “An Act to Make Technical Amendments to Session Law
2014-17.” However, one of the amendments, which removed a sunset provision that set Session
Law 2014-17 to expire on June 19, 2023, seems more substantive than technical. For ease of
discussion, we refer to Session Law 2014-44 except where specifically noted.
       7
          Even if we were so inclined, we are unable to certify this question to the North Carolina
Supreme Court because “North Carolina currently has no mechanism for us to certify questions
of state law to its Supreme Court.” Town of Nags Head v. Toloczko, 

, 398 (4th Cir.
2013).

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N.C. Gen. Stat. Ann. § 1-52(16) (West 2014) (emphasis added). The session law

added a new section to the North Carolina General Statutes, § 130A-26.3, which

provides: “The 10-year period set forth in G.S. 1-52(16) shall not be construed to

bar an action for personal injury, or property damages caused or contributed to by

. . . the consumption, exposure, or use of water supplied from groundwater

contaminated by a hazardous substance, pollutant, or contaminant.” N.C. Gen.

Stat. Ann. § 130A-26.3. 8

       The General Assembly expressly made Session Law 2014-44 apply to

actions “filed, arising, or pending” on or after June 20, 2014, the statute’s effective

date. N.C. Sess. L. 2014-44, § 1(c) (amending N.C. Sess. L. 2014-17, § 4). Under

the law, an action is pending “if there has been no final disposition with prejudice

and mandate issued against that plaintiff issued by the highest court of competent

jurisdiction where the claim was timely filed or appealed as to all the plaintiff’s

claims for relief to which this act otherwise applies.” 

case, the United

States Supreme Court is the highest court of competent jurisdiction, and it has not

issued a final disposition with prejudice, nor has a mandate issued from that Court.

As such, the amended statute of repose would appear to apply to the instant appeal.


       8
        “For purposes of this section, ‘contaminated by a hazardous substance, pollutant, or
contaminant’ means the concentration of the hazardous substance, pollutant, or contaminant
exceeds a groundwater quality standard set forth in 15A NCAC 2L .0202.” N.C. Gen. Stat. Ann.
§ 130A-26.3 (West 2014).

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      The Government disagrees. It contends that the North Carolina General

Assembly is without authority to revive the plaintiffs’ claims after the repose

period has passed. Under North Carolina law, a statute may be applied

retroactively “only insofar as it does not impinge upon a right which is otherwise

secured, established, and immune from further legal metamorphosis.” Gardner v.

Gardner, 

, 719, 

, 471 (1980).

      The Government directs us to McCrater v. Stone & Webster Engineering

Corp., 

, 

(1958), in which the North Carolina Supreme

Court considered whether a statute extending the time limitation to file a

workmen’s compensation claim from one year to two years could be applied

retroactively to claims filed more than one year but less than two years from the

date of the accident. In other words, if the amendment applied retroactively, the

claim would be timely; if not, the claim would be untimely. According to the

North Carolina Supreme Court, the time limit to file a workmen’s compensation

claim was a condition precedent rather than a procedural statute of limitations. 

104 S.E.2d at 860. The court then held that the statute could not apply

retroactively because the limitation period was “a part of the plaintiff’s substantive

right of recovery, [and] could not be enlarged by subsequent statute.” 

. The reason, the court explained, was that any attempt to


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revive an expired claim “would . . . deprive the defendants of vested rights.” Id. at

7

. 9

       Like the time limitation in McCrater, North Carolina’s statute of repose is a

substantive limit on a plaintiff’s right to file an action. See Boudreau v.

Baughman, 

, 340, 

, 857 (1988) (“Ordinary statutes of

limitation are clearly procedural, affecting only the remedy directly and not the

right to recover. The statute of repose, on the other hand, acts as a condition

precedent to the action itself.” (citations omitted)). As a result, the repose

limitation “is an inseparable part of the plaintiff’s substantive right of action.”

, 104 S.E.2d at 861. And like the limitations period in

McCrater, the General Assembly may not enlarge the plaintiffs’ claim by statute

because to do so would be to divest the Government of a vested right.

       The plaintiffs argue that McCrater is inapposite because here it was unclear

whether the original statute of repose’s reference to “personal injury” encompassed

claims for diseases. According to the plaintiffs, Session Law 2014-44 merely

clarified the scope of the statute of repose. Whether the statute clarified or altered

the statute of repose is relevant because under North Carolina law, clarifying


       9
          The North Carolina Supreme Court has also held that “[a] right or remedy, once barred
by a statute of limitations, may not be revived by an Act of the General Assembly,” Waldrop v.
Hodges, 

, 373, 

, 265 (1949), because doing so “takes away vested
rights of defendants,” Wilkes Cnty. v. Forester, 

, 170, 

, 695 (1933).

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amendments apply retroactively, whereas altering amendments do not. See Ray v.

N.C. Dep’t of Transp., 

, 9, 

, 681 (2012). The

Government does not have a vested right in the interpretation of the statute of

repose, the plaintiffs contend, because there is no final judgment. And to hold that

the Government has a vested right would be inconsistent with the rule that a

clarifying amendment “does not change the substance of the law but instead gives

further insight into the way in which the legislature intended the law to apply from

its original enactment.” 

           To support their claim that the Government does not have a vested right, the plaintiffs
cite Bowen v. Mabry, 

, 

(2002), which considered whether a
statutory amendment providing that a pending action for equitable distribution does not abate
upon the death of a party could apply retroactively to a claim that was pending when the
amendment was enacted. The North Carolina Court of Appeals determined that the amendment
was clarifying, and that the defendant did not have a vested right because “[t]here ha[d] been no
judgment dismissing Plaintiff’s claim prior to the effective date of the Act, and the abatement of
an action is not a right ‘immune from . . . legal metamorphosis.’” 

572 S.E.2d at 811
(last alteration in original) (quoting Gardner v. Gardner, 

, 719, 

, 471
(1980)).
        The lack of an order dismissing the claim is not dispositive, for in McCarter there had
been no dismissal prior to the statutory amendment. Similarly, in Waldrop and Wilkes County,
the defendants’ rights did not vest because of an order of dismissal; they vested when the
limitations period expired. As in all three cases, the statute of repose at issue in this case creates
a vested right ten years after the last act or omission giving rise to the cause of action. And while
the abatement of an action may not be a right immune from legal metamorphosis, the right not to
be sued after the relevant limitations period has passed certainly is, regardless of whether the
time limitation is substantive or procedural. See 

–

; 

, 53 S.E.2d at 265.


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       At the outset, we disagree that the original statute of repose was ambiguous

with respect to a latent-disease exception. See supra at 5. However, we hesitate to

dismiss out of hand the plaintiffs’ argument that Session Law 2014-44 clarifies,

rather than substantively amends, the statute of repose. Session Law 2014-17 is

titled “An Act Clarifying that Certain Civil Actions Relating to Groundwater

Contamination Are Not Subject to the Ten-Year Statute of Repose Set Forth in

G.S. 1-52,” and the title of a law provides some evidence of legislative intent. Cf.

Smith Chapel Baptist Church v. City of Durham, 

, 812, 

, 879 (1999) (explaining that even when the text of a statute is plain, “the title

of an act should be considered in ascertaining the intent of the legislature”).

       Moreover, in § 1 of the session law, the General Assembly found that prior

to the Supreme Court’s decision in Waldburger, “there was ambiguity and

uncertainty regarding the effect of federal law on the North Carolina statute of

repose in certain environmental cases.” N.C. Sess. L. 2014-44, § 1.11 The

legislature also found that “it was the intent of the General Assembly to maximize

under federal law the amount of time a claimant had to bring a claim predicated on


       11
           It is not clear what sort of ambiguity the General Assembly was referring to because
the federal law at issue in Waldburger was enacted seven years after North Carolina enacted its
statute of repose in 1979. See Superfund Amendments and Reauthorization Act of 1986, Pub. L.
99-499, § 203, 100 Stat. 1613, 1695 (adding 42 U.S.C. § 9658). In other words, at the time the
statute of repose was enacted, the federal law at issue in Waldburger would have had no effect on
the statute of repose.

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exposure to a contaminant regulated by federal or State law.” 

General Assembly found the Supreme Court’s decision in Waldburger to be

“inconsistent with the General Assembly’s intentions and the General Assembly’s

understanding of federal law” and that “it never intended the statute of repose in

G.S. 1-52(16) to apply to claims for latent disease caused or contributed to by

groundwater contamination, or to claims for any latent harm caused or contributed

to by groundwater contamination.” 

is the fact that the General

Assembly expressly made the statute retroactive. Although inclusion of an

effective date, standing alone, may not prove that an amendment is intended to be

clarifying or altering, see 

–

, the fact that

the General Assembly expressly made Session Law 2014-44 retroactive lends

further support to the conclusion that the amendment is clarifying and that it

applies to the plaintiffs’ claims. 12



       12
           Beyond the text, the law’s legislative history also demonstrates that the General
Assembly sought to clarify the scope of the statute of repose. While the House of
Representatives discussed Senate Bill 574, which would ultimately become Session Law 2014-
17, one representative exclaimed that “the action we will take . . . is strictly one of clarifying the
intent of this body, in regards to how that statute of repose can be interpreted moving forward
and how it should have been interpreted since its inception.” N.C. H. Rep. Discussion of S.B.
Bill 574, at 4 (June 13, 2014) (statement of Rep. Glazer) (emphasis added). Summarizing the
Supreme Court’s decision in Waldburger, that same representative explained it “was never our
intent” to limit people exposed to contaminated groundwater to a maximum of ten years to file a
claim. 

In the Senate, a senator explained:
       What we’re doing today is we’re just making sure that we as the General
       Assembly clarify the text of the statute in order to protect the original intent of the
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       “To determine whether the amendment clarifies the prior law or alters it

requires a careful comparison of the original and amended statutes.” Ferrell v.

Dep’t of Transp., 

, 659, 

, 315 (1993). “If the statute

initially ‘fails expressly to address a particular point’ but addresses it after the

amendment, ‘the amendment is more likely to be clarifying than altering.’” 

, 727 S.E.2d at 682 (quoting 

, 435 S.E.2d at

315). However, “it is logical to conclude that an amendment to an unambiguous

statute indicates the intent to change the law.” Childers v. Parker’s, Inc., 

, 260, 

, 484 (1968).

       Comparing the two statutes, it is clear that the amended statute of repose

contains a brand new exception for groundwater claims. This is not a case where

the General Assembly merely failed to address a particular point—whether

groundwater contamination claims fall under the statute of repose—only to address




       1979 Act’s drafters. And what we’re dealing with in a couple parts of the state
       are groundwater contamination claims. And what separates them from the
       original intent of this – of the bill that was passed in 1979, is that groundwater
       contamination claims, unlike product liability claims, arise from unknown
       exposures – well, by unknown elements at unknown times, and so they have
       latency periods that can be decades long, unlike products. And that the intent of
       the original bill back in 1979 was to deal with products. They never conceived
       they would be dealing with groundwater contamination claims. And all we’re
       doing is clarifying that for anyone who might look at our law.
N.C. S. Discussion of S.B. 574, at 3–4 (June 18, 2014) (statement of Sen. Goolsby) (emphasis
added).
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it later. In Ferrell, the North Carolina Supreme Court held that a statute setting out

the manner of determining the price at which the Department of Transportation

would sell a parcel of property was clarifying because the original statute directing

the Department to sell parcels provided no express guidance as to selling price.

, 435 S.E.2d at 315. In other words, the clarifying statute

filled a hole left by the original statute. Here, by contrast, the General Assembly

created a substantively distinct exception from whole cloth. That the legislature

saw itself as clarifying the scope of the statute of repose is not irrelevant. But just

because the General Assembly said it was clarifying the scope of the statute of

repose does not make it so. “It is this Court’s job to determine whether an

amendment is clarifying or altering.” 

, 727 S.E.2d at 681. In

this case, the original statute of repose was unambiguous, and it gave no indication

that an exception existed for latent diseases. Thus, it is reasonable to conclude the

subsequent amendment was substantive. See 

, 

. Session Law 2014-44 did not adopt the plaintiffs’ proposed distinction

between latent diseases and other types of claims; instead, it created one for

groundwater contamination claims generally, and there is no question that this

exception is new.

      Session Laws 2014-17 and 2014-44 substantively amended the statute of

repose to create an exception for groundwater contamination and, as a result, can
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only apply prospectively, lest they divest the Government of a vested right. See

–

.

                                               ***

       We therefore have the answer to both questions presented in this

interlocutory appeal. First, CERCLA, 42 U.S.C. § 9658, does not preempt statutes

of repose. See generally CTS Corp. v. Waldburger, ___ U.S. ___, 

,

(2014). Second, North Carolina’s statute of repose, N.C. Gen.

Stat. § 1-52(16) (2010), applies to the plaintiffs’ claims, and it does not contain an

exception for latent diseases.13

       This case is REMANDED for further proceedings consistent with this

opinion.

       SO ORDERED.




       13
          In their supplemental brief to this court, the plaintiffs contend that genuine issues of
material fact exist as to whether the Government’s last act or omission occurred within ten years.
We did not authorize the appeal of that question and thus do not address it.

                                               15