Opposition Brief — CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014) (No. 13-339)

Sup. wi! & \ nes ah

FiLboO

No. 13-339 NOV 14 22:3

SS ee ee | ell

Ju The

Supreme Court of the Anited States

¢

CTS CORPORATION,

Petitioner,

Vv.

PETER WALDBURGER, et al.,

Respondents.

°

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

*

JOHN J. KORZEN

WAKE FOREST UNIVERSITY

SCHOOL OF LAw

APPELLATE ADVOCACY CLINIC

Post Office Box 7206 Reynolda Station

Winston-Salem, North Carolina 27109

336-758-5832

korzenjj@wfu.edu

COCKLE LEGAL BRIEPS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Did Congress intend the discovery rule in 42

U.S.C. § 9658 to apply to all less favorable limitations

periods in state statutes of limitations, including pro-

visions within state statutes of limitations that can

be characterized as statutes of repose?

|

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE..........................200000 1

CERCLA Discovery Rule ..............:<000s0s:ssssessesess: 1

North Carolina Statutory Provision At Issue.... 4

Fe cniciciicicnvitnictesennsinintinsiniteninniniiainn 5

REASONS FOR DENYING THE PETITION ....... 9

I. There Is No Meaningful Split Among The

RII is icscintuisaisdibioheonianbinaddinnmmesaianinamennesninnnin S)

II. The Decision Below Is Consistent With This

Re Ny TUNIS itciicscnintintcneaclodiageiniaceniencbunan 15

IIT cixiiistissieshnnsncniseniichennnieiasnsssieiienbidinhdicitiniaiaitia 23

ill

TABLE OF AUTHORITIES

Page

CASES:

Atchison, T. & S.F-R. Co. v. Buell, 480 U.S. 557

SUIT isospin isk dacaesaandachaaiamsiaheniaiiniiea 19

Barnes v. Koppers, Inc., 534 F.3d 357 (5th Cir

ER LEMAR ELE POLAT: 20, 21

BedRoc Lid., LLC v. United States, 541 US.

EE svniipcenmmiciinstnsthicintandsamndieniapiiimsiiubansititimatimmigteniind 17

Bridges v. United States, 346 U.S. 209 (1953)........... 17

Bryant v. United States, No. 12-15424 (11th

Cir. to be argued Jan. 17, 2014)............... eee ee 22

Burlington N. & Santa Fe Ry. Co. v. Poole

Chem. Co., 419 F.3d 355 (5th Cir. 2005).....12, 13, 21

Camreta v. Greene, 131 S. Ct. 2020 (2011) ................ 14

Clark Cnty. v. Sioux Equip. Corp., 753 N.W.2d

ER TSR SER ARES ANNE oer 12,13

CTS Corp. v. Mills Gap Road Assocs., No. 1:10-

CV-156-GCM, 2013 WL 4499136 (W.D.N.C.

I FE ieietericthinnisevtinniiisiaciinsiniabiidaciiiiiniionsiinnia 22

Lampf, Pleva, Lipkind, Prupis & Petigrow uv.

Gilbertson, 501 U.S. 350 (1991).......... eee eeeee 18

Landis v. Phys. Ins. Co. of Wis., Inc., 628

I ii eclaccenommabemiantingsa 19

McDonald v. Sun Oil Co., 548 F.3d 774 (9th

I a a Aa a 9,10

Moore v. Walter Coke, Inc., No. 2:11-cv-1391,

2012 WL 4731255 (N.D. Ala. Sept. 28, 2012)......... 14

iv

TABLE OF AUTHORITIES — Continued

Moore v. Winter Haven Hosp., 579 So. 2d 188

REAR RIEE EE a nae ee ORT SO 18

Natl Credit Union Admin. Bd. v. Nomura

Home Equity Loan, Inc., 727 F.3d 1246 (10th

I i 10, 11, 18

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ......... 15

Taniguchi v. Kan Pacific Saipan, Ltd., 132

A cial 9

U.S. v. Bestfoods, 524 U.S. 51 (1998)...............cccceceeee es 1

United States. v. Kubrick, 444 U.S. 111 (1979).......... 17

Wallace v. Kato, 549 U.S. 384 (2007) ..............2.cccce0ee 18

Witherspoon v. Sides Constr. Co., Inc., 362 N.W.2d

I -SIIIIT sssibtisicisiteiniiducesuiniciehncinicnlsitdiantaneneicnuiiseasmindie 18

STATUTES:

I itches inning ii i ial lie 19

8 RE oe ose ae ere NOE NS re 19

aaa iin iiss 13, 21

| TE Beer Oe ae emer ese 1, 20

es I iciiicininsileisienatigamnniamnsenemaninenientiante passim

Comprehensive Environmental Response, Com-

pensation and Liability Act ......00000.00. ee passim

Federal Employers’ Liability Act ............0............0 20

Financial Institutions Reform, Recovery, and

Bemtoronmnent Act of 1GGD........00.cccccsecsscscccsescccceseseses 10

v

TABLE OF AUTHORITIES — Continued

Page

I: el 4,17

oo _ ee ne E passim

RULES:

Federal Rule of Civil Procedure 12(b)(6) ..................... 6

OTHER AUTHORITIES:

18 J. Moore et al., Moore’s Federal Practice,

FS SREB ERSC cele ee es OPC 14

AGENCY FOR Toxic SUBSTANCES & DISEASE REG-

ISTRY, PUBLIC HEALTH STATEMENT FOR TRI-

CUT TITLES CRE D nc scccccccccsccccsccccoccccesccesccosccscco: 6

Black’s Law Dictionary (5th ed. 1979).............2...00000- 17

H.R. CONF. REP. 99-962, 1986 U.S.C.C.A.N.

REST RERRGRR ARS ee HE onsen IC Ne ee OE 4,21

Injuries and Damages from Hazardous Wastes

— Analysis and Improvement of Legal Reme-

dies: A Report to Congress in Compliance with

Section 301(e) of the Comprehensive Environ-

mental Response, Compensation, and Liabil-

ity Act of 1980 (P_L. 96-510) by the “Superfund

Section 301(e) Study Group” .....................- 2, 3, 18, 20

SD, BRaeD. BUR. BE DED CEI) occccccovececccccssesevssscessvenscessccseess 1

1

STATEMENT OF THE CASE

The Fourth Circuit addressed the preemptive ef-

fect of the discovery rule in the Comprehensive Envi-

ronmental Response, Compensation, and Liability Act

(CERCLA) on a ten-year repose provision within a

state statute of limitations. After summarizing the

key aspects of the CERCLA discovery rule, the state

repose provision at issue, and the proceedings below,

Respondents contend that there is no meaningful cir-

cuit split on the question presented and that the de-

cision below is consistent with this Court’s case law.

CERCLA Discovery Rule

In 1980, Congress enacted CERCLA to counter

“the serious environmental and health risks posed

by industrial pollution.” U.S. v. Bestfoods, 524 U.S.

51, 55 (1998). CERCLA’s purpose was to ensure “that

those responsible for any damage, environmental

harm, or injury from chemical poisons bear the costs

of their actions.” S. Rep. No. 96-848, at 13 (1980).

At the same time, Congress authorized a Study

Group “to determine the adequacy of existing com-

mon law and statutory remedies ... for harm to man

and the environment caused by the release of haz-

ardous substances into the environment.” 42 U.S.C.

§ 9651(e)(1). Congress directed the Study Group to

evaluate, among other issues, “barriers to recovery

posed by existing statutes of limitation.” 42 U.S.C.

§ 9651(eX3XF).

2

The Study Group Report was issued on July 1,

1982. See Injuries and Damages from Hazardous

Wastes — Analysis and Improvement of Lega] Reme-

dies: A Report to Congress in Compliance with Sec-

tion 301(e) of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980

(P.L. 96-510) by the “Superfund Section 301(e) Study

Group” [hereafter Study Group Report]. (The full

Study Group Report, including its appendices, can be

found online at http://babel.hathitrust.org/cgi/pt?id=

mdp.390 15004856327#view=1up;seq=366. )

The Study Group Report concluded that in haz-

ardous waste litigation, “Commencement of the run-

ning of the statute of limitations can be a barrier to

recovery under both common law and statutory reme-

_fiies” because injuries from exposure to certain haz-

ardous wastes “have long latency periods, sometimes

20 years or longer.” Study Group Report, at 28. The

“traditional rule” that an action accrued at the time of

the defendant’s tortious act or omission “caused great

hardship” to plaintiffs with latent injuries because

their claims were often time-barred before they dis-

covered they had been injured. Jd. at 240, Appendix B

page B-2.

Accordingly, under the heading “Statutes of Lim-

itation,” the Report recommended that “all states

that have not already done so, clearly adopt the rule

that an action accrues when the plaintiff discovers or

should have discovered the disease and its cause” and

stated that the recommendation was “intended also to

cover the repeal of the statutes of repose which, in a

3

number of states have the same effect as some stat-

utes of limitation in barring plaintiff’s claim before

he knows that he has one.” Jd. at 241. Elsewhere, the

Report continued to treat statutes of repose, including

the North Carolina ten-year repose provision, as a

subcategory of statutes of limitation, including them

within summaries of “statutes of limitation” or “limi-

tations statutes.” Jd. at Appendix B, pages B6-B10,

B59, B63.

In 1986, Congress amended CERCLA and added

42 U.S.C. § 9658(a\1), a preemption clause stating

that:

In the case of any action brought under State

law for personal injury, or property damages,

which are caused or contributed to by ex-

posure to any hazardous substance, or pol-

lutant or contaminant, released into the

environment from a facility, if the applicable

limitations period for such action (as speci-

fied in the State statute of limitations or un-

der common law) provides a commencement

date which is earlier than the federally re-

quired commencement date, such period

shall commence at the federally required

commencement date in lieu of the date speci-

fied in such State statute.

42 U.S.C. § 9658(a\1).

Subsection (b) contains three definitions. “Appli-

cable limitations period” is defined as “the period

specified in a statute of limitations during which a

civil action referred to in subsection (a)(1) of this

4

section may be brought.” 42 U.S.C. § 9658(bX2). “Com-

mencement date” is defined as “the date specified in a

statute of limitations as the beginning of the applica-

ble limitations period.” 42 U.S.C. § 9658(b\3). Finally,

“federally required commencement date” (FRCD) is

defined as “the date the plaintiff knew (or reasonably

should have known) that the personal injury or prop-

erty damages referred to in subsection (a1) of this

section were caused or contributed to by the haz-

ardous substance or pollutant or contaminant con-

cerned.” 42 U.S.C. § 9658(b)4).

The House Conference Report noted that section

9658 was meant to “address the problem identified in

the” Study Group Report, namely that “certain State

statutes deprive plaintiffs of their day in court.” H.R.

CONF. REP. 99-962, 1986 U.S.C.C.A.N. 3276, 3354.

North Carolina Statutory Provision At Issue

The ten-year limitations provision Petitioner re-

lies on is the second sentence of two in N.C. Gen.

Stat. § 1-52(16). Section 1-52 is found in Chapter 1

(Civil Procedure), Subchapter I] (Limitations), and

Article 5 (Limitations, General Provisions) of the

North Carolina Genera] Statutes. The first section in

Article 5 is entitled “Periods Prescribed” and pro-

vides, “The periods prescribed for the commencement

of actions, other than for the recovery of real property,

are as set forth in this Article.” N.C. Gen. Stat. § 1-46.

Section 1-52 lists causes of action subject to a

three-year limitations period. Then, in subsection

5

(16), the first sentence provides a discovery rule that

causes of action for personal injury or physical dam-

age to property “shall not accrue until bodily harm

to the claimant or physical damage to his property

becomes apparent or ought reasonably to have be-

come apparent to the claimant.” The second sentence

adds the proviso “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). Section 1-52 never uses the

term “repose.”

Proceedings Below

Petitioner CTS Corporation is a successor to CTS

of Asheville, Inc. Pet. App. 52a. CTS of Asheville, Inc.

was formed on April 16, 1959, and manufactured

electronic parts at the Mills Gap Road Electroplating

Facility in Buncombe County, North Carolina. Pet.

App. 5la. The corporation used various toxic solvents,

including trichloroethylene (TCE), cyanide, chromium

V1, and lead. Id.

CTS of Asheville, Inc. was dissolved on December

29, 1983, and then continued to operate as CTS Cor-

poration, Asheville Division. Pet. App. 52a. Petitioner

operated the Mills Gap Road Electroplating Facil-

ity until November 1985. Pet. App. 53a. In 1986 or

1987, Petitioner marketed the facility and surround-

ing land, representing that the site “has been ren-

dered in an environmentally clean condition.” Jd. In

June 1987, Petitioner agreed to sell 54 acres of the

6

industrial site to a general partnership and provide

specific warranties that the property was free of en-

vironmental] contamination. Jd. The sale was final-

ized in December 1987. /d. at 54a.

Respondents are individuals who live either on or

near the property formerly owned by Petitioner. /d.

On November 23, 2009, the United States Environ-

mental Protection Agency (EPA) advised Respondents

David Bradley and Renee Richardson that their well

water contained startlingly high levels of TCE and

was not fit for human consumption. Jd. at 55a-56a.

TCE is a manmade, persistent, and highly mobile

solvent. See, e.g., J.A. 174 [“J.A.” refers to the Joint

Appendix filed in the Fourth Circuit, which is avail-

able via PACER.|] Concentrations of TCE above

.005/mg/L can lead to liver damage, kidney damage,

changed heart rhythms, and cancer. AGENCY FOR TOXIC

SUBSTANCES & DISEASE REGISTRY, PUBLIC HEALTH

STATEMENT FOR TRICHLOROETHYLENE, at 3 (1997).

The other Respondents live in the vicinity of the

Richardson and Bradley residence, and they likewise

have been and continue to be exposed to toxins left

behind by Respondents via contact from air, land, and

water. Pet. App. 56a.

On February 22, 2011, less than two years after

the EPA notification, Respondents sued Petitioner for

nuisance. J.A. 15. Petitioner moved to dismiss under

Federal Rule of Civil Procedure 12(b\6), arguing that

N.C. Gen. Stat. § 1-52(16) barred the Complaint. J.A.

37, 41-42. Respondents contended that their action

7

was timely based in part on 42 U.S.C. § 9658. J.A.

118-19, 258-62. The district court granted Petitioner’s

motion to dismiss in a two-page opinion concluding

that CERCLA does not apply to state statutes of re-

pose. Pet. App. 37a-39a.

The Fourth Circuit reversed the district court

and held “that the discovery rule articulated in

§ 9658 ... preempts North Carolina’s ten-year limita-

tion.” Pet. App. 2a. The court noted that a “simple

review” of section 9658’s language could lead to the

conclusion that the section applies only to statutes of

limitation because it uses the phrase “statutes of

limitation” five times and does not use “statutes of

repose.” Pet. App. 12a. The court then concluded that

section 9658 can also be read to preempt the ten-year

limitation provision in N.C. Gen. Stat. § 1-52(16), ap-

plying the plain language of subsection (aX1) and the

definitions in subsection (b). Pet. App. 12a-13a.

The discovery rule in section 9658(a)\1) can be

read to apply to section 1-52(16)’s ten-year lmita-

tions provision, because it is an “applicable limita-

tions period” that is “specified in the State statute

of limitations” and provides “a commencement date

which is earlier than the federally required com-

mencement date.” Pet. App. 12a. It is an “applicable

limitations period” because it is a “period” “during

which a civil action ... may be brought.” Jd. It is

“specified in the State statute of limitations” because

it is located within state statutes of limitations. /d.

Finally, the ten-year limitation period provides a “com-

mencement date” that “is earlier than the federally

8

required commencement date” because it begins with

the defendant’s last act, not when the plaintiff discov-

ers the harm. Jd. at 12a-13a.

The court further reasoned that the use and

meaning of the terms “statute of limitations” and

“statute of repose” had developed considerably over

the years and that historically the terms had often

been used interchangeably. Jd. at 13a.

Because the text of section 9658 could be read as

either including statutes of repose or excluding them,

the court then looked to other indicia of congressional!

intent. Jd. at 14a. The court reasoned that Congress

adopted section 9658 to address the problem identi-

fied in the Study Group Report, which was “equally

concerned with statutes of repose and limitations,

and with their effect of barring plaintiffs’ claims be-

fore they are aware of them.” Jd. The court also

reasoned that CERCLA is remedial, section 9658

resulted from Congress’s specific concern with ensur-

ing adequate remedies, and section 9658 furthers the

Act’s remedial goals by preempting state limitations

periods that would bar causes of action for latent

harms. Id. at 14a-16a.

The court concluded that interpreting section

9658 to exclude North Carolina’s ten-year statute of

repose would “obliterate legitimate causes of action

before they exist.... precisely the barrier that Con-

gress intended § 9658 to address.” Id. at 15a. Such a

9

reading would thwart Congress’s goal of removing

barriers to relief from hazardous substances. /d.

¢

REASONS FOR DENYING THE PETITION

I. There Is No Meaningful Split Among The

Circuits.

Statutory terms should be construed based on

their meaning when the statute was enacted. See,

e.g., Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct.

1997, 2002 (2012). Like the Fourth Circuit below, the

only other circuit to construe “statute of limitations”

in section 9658 as of when the section was enacted

agrees that the section does not plainly exempt stat-

utes of repose. See McDonald v. Sun Oil Co., 548 F.3d

74 (9th Cir. 2008).

In McDonald, the plaintiff learned that its prop-

erty was contaminated with mercury more than

twenty years after the seller had represented that no

mercury remained there. The Ninth Circuit held that

Oregon’s ten-year statute of repose did not extinguish

the plaintiff’s negligence claim. Jd. at 779. The court

first determined that the term “statute of limitation”

was “ambiguous regarding whether it included stat-

utes of repose” when the statute was enacted in 1986.

Id. at 781. As of 1986, courts often used the terms

“statute of limitations” and “statute of repose” inter-

changeably. Id. Because the statute was ambiguous,

the court examined CERCLA’s legislative purpose to

interpret its meaning. Id.

10

After reviewing CERCLA’s legislative purpose,

the Ninth Circuit held that CERCLA preempted Ore-

gon’s statute of repose. Jd. at 782-83. The court rea-

soned that “Congress’s primary concern in enacting

§ 9658 was to adopt the discovery rule in situations

where a plaintiff may lose a cause of action before

becoming aware of it — precisely the type of circum-

stance involved in this case.” Jd. at 783. The court

noted that “[t]his predicament can be caused by

either statutes of limitation or statutes of repose, and

is probably most likely to occur where statutes of

repose operate.” /d. The court held that based on the

ambiguity of the phrase “statute of limitations” itself

when section 9658 was enacted and the evidence of

Congressional] intent, it was apparent that Congress

intended section 9658 to include statutes of repose.

Id.

The Fourth Circuit’s decision below and the

Ninth Circuit’s McDonald decision are entirely con-

sistent with other circuits that have interpreted the

term “statute of limitations” as of the 1980s. The

Tenth Circuit, for example, recently cited both of

these decisions with approval in construing the term

“statute of limitations” in the Financial Institutions

Reform, Recovery, and Enforcement Act of 1989. See

Nat’ Credit Union Admin. Bd. v. Nomura Home

Equity Loan, Inc., 727 F.3d 1246, 1258 (10th Cir.

2013). The Tenth Circuit determined that “‘statute

of limitations’ did not have a consistent, clearly dis-

tinct meaning in 1989.” Jd. at 1258. The Tenth Circuit

cited other circuit court discussions of the terms

ll

“statute of limitations” and “statute of repose,” ob-

serving that:

Courts have noted the historically ambigu-

ous and overlapping use of these terms. £.g.,

FHFA v. UBS Am. Inc., 712 F.3d 136, 140,

142-43 & n.3 (2d Cir. 2013) (*[CJourts ...

have long used the term ‘statute of limita-

tions’ to refer also to statutes of repose.” (re-

ferring, inter alia, to Ernst & Ernst v.

Hochfelder, 425 U.S. 185, 210 (1976))); Fields

v. Legacy Health Sys., 413 F.3d 943, 952 n.7

(9th Cir. 2005) (“(T)he distinction between

statutes of limitations and statutes of repose

is often blurred.”); Alexander v. Beech Arr-

craft Corp., 952 F.2d 1215, 1218, n.2 (10th

Cir. 1991) (“Although the statute is titled as

a ‘Statute of limitations, we refer to it as a

statute of repose.... Both types of statutes

are often referred to as statutes of limita-

tions.”); Anixter v. Home-Stake Prod. Co., 939

F.2d 1420, 1434 n.17 (10th Cir. 1991), va-

cated on other grounds by Dennler v. Trippet,

503 U.S. 978 (1992) (“Although the two con-

cepts differ,” the terms statute of limitations

and statute of repose “have become inter-

changeable.”).

Id. at 1259 n.14. Then, after thoroughly examining

the meaning of “statute of limitations,” the Tenth Cir-

cuit concluded that “[t]he majority of the case law

treats repose periods as a subcategory of statute of

limitations.” Jd. at 1266.

12

In sum, there is broad agreement that the term

“statute of limitations” did not plainly exclude stat-

utes of repose as of the mid to late 1980s and that

repose periods have usually been treated as subcate-

gories of statutes of limitations.

The two appellate decisions relied on by Peti-

tioner do not support review. See Burlington N. &

Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355 (Sth

Cir. 2005); Clark Cnty. v. Stoux Equip. Corp., 753

N.W.2d 406 (S.D. 2008). In Burlington Northern, a

case arising from a storage tank rupture, neither

party brefed the question presented here. (The ap-

pellate briefs are available on Westlaw at 2004 WL

3591804, 2005 WL 3186188, and 2005 WL 3186187.)

The district court had agreed with the appellant that

the “federally required commencement date” of sec-

tion 9658 applied but disagreed as to the limitations

period that followed the commencement date. On ap-

peal, the appellee never argued that section 9658

preetmpted only statutes of limitation. The parties

instead disputed whether section 9658 could apply

when no CERCLA claims were or could have been

asserted, and they argued over various state law ques-

tions such as retroactive application of an amend-

ment to the statute of repose. Because the Fifth

Circuit reached its decision on the question presented

here with no adversarial briefing or argument, Bur-

lington Northern provides a weak basis for review.

Moreover, the Fifth Circuit acknowledged in

Burlington Northern that the case did “not involve

the delayed discovery for which § 9658 was intended

13

to address.” 419 F.3d at 364-65. The claimant imme-

diately knew it had been injured when the storage

tank ruptured, well before the applicable products

liability statute of repose expired. Jd. at 358-59. The

Fifth Circuit also failed to address whether the term

“statute of limitations” was ambiguous when sec-

tion 9658 was adopted and failed to discuss section

9658(b2)’s definition of “applicable limitations

period” as “the period specified in a statute of limita-

tions during which a civil action referred to in sub-

section (a)(1) of this section may be brought.”

In Clark County, an action for property damage

against an oil tank installer, the South Dakota Su-

preme Court heavily relied on what was then “the

highest federal court to consider this issue,” Burling-

ton Northern. 753 N.W.2d at 414. While the court

followed Burlington Northern and held that section

9658 did not preempt a state statute of repose, 753

N.W.2d at 415-17, it might well decide the issue dif-

ferently now, with two other federal circuits having

construed CERCLA in the meantime to preempt stat-

utes of repose. In addition, the court failed to analyze

the meaning of “statute of limitations” as of 1986 and

failed to address the definitions within section 9658

of “applicable limitations period” and “commencement

date.” The court actually did not even need to reach

the issue because CERCLA does not apply to claims

involving petroleum. See 42 U.S.C. § 9601(14). Be-

sides Clark County, no other appellate decision has

followed Burlington Northern.

14

That Alabama district courts have reached con-

trary conclusions on whether section 9658 preempts

that state’s common law rule of repose also does not

support review. A federal district court decision “is not

binding precedent in either a different judicial dis-

trict, the same judicial district, or even upon the

same judge in a different case.” Camreta v. Greene,

131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore

et al., Moore’s Federal Practice, § 134.02[1}[d], p. 134-

26 (3d ed. 2011)). In any event, the most recent

Alabama decision holds that section 9658 preempts

Alabama’s rule of repose, with reasoning entirely con-

sistent with the decision below. See Moore v. Walter

Coke, Inc., No. 2:11-cv-1391, 2012 WL 4731255, at

**8-13 (N.D. Ala. Sept. 28, 2012) (opinion by Chief

Judge Sharon Lovelace Blackburn).

In the twenty-seven years since section 9658 was

enacted, only three federal courts of appeals have

addressed the issue presented, all since 2005. The

question presented arises infrequently. There must be

a claim for personal injury or property damage aris-

ing from exposure to a covered hazardous substance,

pollutant, or contaminant that was released from a

facility, and there must be a state statute of repose

that ran before the plaintiff filed suit. The recency of

the decisions suggests that, to the extent that the

issue may be important, it is only beginning to perco-

late in the lower courts, and the Court can consider

the question if a genuine and serious conflict devel-

ops.

15

ll. The Decision Below Is Consistent With This

Court’s Case Law.

The Fourth Circuit’s conclusion that section 9658

does not plainly exclude statutes of repose provisions,

analysis of the phrase “statute of limitations” as of

the time when section 9658 was enacted, and consid-

eration of legislative purpose are al! consistent with

this Court’s case law.

First, the Fourth Circuit correctly concluded that

the plain meaning of section 9658 can be read to

include the statute of repose provision at issue, using

the language itself, the specific context, and the

broader statutory context. See Robinson v. Shell Oil

Co., 519 U.S. 337, 340 (1997). The Fourth Circuit

properly analyzed the text of section 9658 itself, in-

cluding the preemption provision in subsection (aX 1)

and all three definitions in subsection (b). The court

first accurately summarized (a\1) as preempting a

state limitations period if it (1) is an “applicable lim-

itations period” that is “specified in the State statute

of limitations or under common law” and (2) “provides

a commencement date which is earlier than the fed-

erally required commencement date.” Pet. App. 12a.

The court next noted that the statute of repose

provision at issue is “specified in the State statute of

limitations or under common law” because it is lo-

cated in the state statutory section on “Limitations,

Other than Real Property.” Jd. Indeed, the statute

of repose provision is just one of many limitations

16

provisions in that Article and the Subchapter on

“Limitations.”

The court then noted that the ten-year limita-

tions provision in subsection 1-52(16) fits the defini-

tion of “applicable limitations period” because it is a

period specified in a statute of limitations “during

which a civil action ... may be brought.” /d. The

court’s reading of “applicable limitations period” to

include subsection 1-52(16) makes perfect sense. The

first sentence of subsection 1-52(16) states that ac-

tions “shall not accrue” until harm is discovered,

while the second sentence — the one at issue — pro-

vides “that no cause of action shall accrue more than

10 years from the last act or omission of the defen-

dant.” Read as a whole, subsection 1-52(16) defines

the period “during which a civil action ... may be

brought,” with the ten-year provision at issue limiting

that period.

The court then concluded that the ten-year pro-

vision at issue provides a “commencement date” that

is “earlier than the federally required commencement

date” because the ten-year period runs from when the

defendant commits its last act, while under section

9658 the limitations period begins when a plaintiff

has knowledge of harm. /d. at 12a-13a. The court's

commonsense conclusion that the provision at issue

provides an earlier “commencement date” than sec-

tion 9658 is consistent with other provisions in the

North Carolina statutes. The first section in the

Article in which section 1-52 is located is in fact en-

titled “Periods Prescribed” and states, “The periods

17

prescribed for the commencement of actions, other

than for the recovery of real property, are as set forth

in this Article.” N.C. Gen. Stat. § 1-46.

Second, in concluding that the term “statute of

limitations” did not exclude statute of repose provi-

sions, the Fourth Circuit complied with the funda-

mental rule that a statute’s terms should be given the

meaning they had when the text was adopted. See,

e.g., BedRoc Ltd., LLC v. United States, 541 U.S. 176,

184 (2004). The Fourth Circuit correctly concluded

that “statute of limitations” and “statute of repose”

were used interchangeably as of 1986, when section

9658 was enacted.

This Court had used the terms “statute of limita-

tion” and “statute of repose” interchangeably before

1986. See, e.g., United States. v. Kubrick, 444 U.S.

111, 117 (1979) (describing statutes of limitation as

statutes of repose); Bridges v. United States, 346 U.S.

209, 230-31 (1953) (“Of course, statutes of limitation

are statutes of repose.”).

Furthermore, the Black’s Law Dictionary defini-

tion for “statute of limitation” included the statement

that “Statutes of limitation are statutes of repose”

and ended by noting, “Also sometimes referred to as

‘statutes of repose.’” Black’s Law Dictionary 835 (5th

ed. 1979). Not only did the definition for “statute of

limitation” conflate the two terms, Black’s definition

for “Repose statutes” stated simply, and fully, “See

Limitation (Statute of limitation).” Id. at 1169.

18

Since section 9658 was enacted, this Court and

others have continued to use the terms interchange-

ably. See Wallace v. Kato, 549 U.S. 384, 391, 395

(2007) (using “statute of repose” and “statute of

limitations” interchangeably); Lampf, Pleva, Lipkind,

Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 352,

355 (1991) (stating question presented was “which

statute of limitations is applicable” where one of the

three choices was a statute of repose); Nat? Credit

Union Admin. Bd., 727 F.3d at 1266 (concluding that

“(tlhe majority of the case law treats repose periods

as a subcategory of statute of limitations”); Moore uv.

Winter Haven Hosp., 579 So. 2d 188, 190 (Fla. App.

1991) (explaining that “a statute of repose is a form of

a statute of limitations and the terms are often used

interchangeably,” and holding that “‘statute of repose’

is subsumed in the general term ‘statute of limita-

tions’” in statutory provision at issue because, to hold

otherwise, would “frustrate the legislative intent” of

the provision); Witherspoon v. Sides Constr. Co., Inc.,

362 N.W.2d 35, 41 (Neb. 1985) (“A statute of repose is

a type of a statute of limitations.”).

The Study Group Report also used the terms

interchangeably and treated statutes of repose as a

subcategory of statutes of limitation, repeatedly in-

cluding provisions that can be characterized as stat-

utes of repose within the category of “statutes of lim-

itation” or “limitations statutes.” Study Group Report,

at 240-41, and Appendix B pages B6-B10, B59, B63.

The absence of the term “statute of repose” in

section 9658 is understandable when other statutes

19

are considered. A search of the United States Code

reveals that Congress never uses the term “statute

of repose,” although it indisputably enacts statutes of

repose. See, e.g., 31 U.S.C. §3731(b\(2) (creating

three-year statute of limitation and ten-year statute

of repose under “false claims procedure”); 21 U.S.C.

§ 335(b)(3)(B) (creating six-year statute of limitations

and ten-year statute of repose under “Limitation on

Actions”). The North Carolina ten-year limitation at

issue never uses the term “repose.” See N.C. Gen.

Stat. § 1-52(16).

There is no reason in hindsight to expect Con-

gress to have used the term “repose” in section 9658,

when Congress and state legislatures such as North

Carolina’s were not using it themselves. See, e.g.,

Landis v. Phys. Ins. Co. of Wis., Inc., 628 N.W.2d 893,

896, 907 (Wis. 2001) (holding that phrase “[aJny ap-

plicable statute of limitations” was ambiguous as to

whether it included statutes of repose and noting that

“The term ‘statute of repose’ is largely a judicial label

for a particular type of limitation on actions” and “It

is apparent that the phrase ‘statute of repose’ is ju-

dicial terminology and is not featured in legislative

lingo.”).

Third, after determining that section 9658 can be

read as including statutes of repose, the Fourth Cir-

cuit properly considered Congress’s remedial purpose

in enacting CERCLA and section 9658’s legislative

history. Construing CERCLA as a broad remedial

statute is consistent with this Court’s interpretations

of other remedial statutes. See, e.g., Atchison, T. &

20

S.F.R. Co. v. Buell, 480 U.S. 557, 562 (1987) (stating

that the Federal Employers’ Liability Act is a “broad

remedial statute” that must be given a liberal con-

struction).

Construing section 9658 as a broad remedial

statute is especially appropriate given the section’s

history. Congress directed the Study Group “to de-

termine the adequacy of existing common law and

statutory remedies” and to evaluate “barriers to re-

covery posed by existing statutes of limitation.” 42

U.S.C. §§ 9651(eX1) (emphasis added), (eX3XF). The

Study Group then thoroughly analyzed the existing

statutes of limitation in all the states. Under the

heading “Statutes of Limitations,” the Study Group

then recommended that states adopt a rule that

claims accrue on discovery of latent harm and its

cause and stated that the recommendation was also

intended to repeal statutes of repose. Study Group

Report, at 240-41.

The Fifth Circuit, in an opinion by then-Chief

Judge Edith Jones, stated that the legislative history

of section 9658 is “unusually helpful” because the

House Conference Report explained that the section

was drafted in response to the Study Group Report.

Barnes v. Koppers, Inc., 534 F.3d 357, 365 (5th Cir

2008). Relying on the Study Group Report, the Fifth

Circuit held that the section 9658 discovery rule ap-

plies “where the conditions for CERCLA cleanup are

satisfied,” that is, when the plaintiff’s evidence meets

CERCLA’s definitions of a “release” of “hazardous

21

substances” into the “environment” from a defen-

dant’s “facility.” Id. at 365.

Here, applying the Fifth Circuit's test from

Barnes, the section 9658 discovery rule would apply

because the allegations in Plaintiff’s Complaint sat-

isfy all the relevant statutory definitions in CERCLA

for a “release” of “hazardous substances” into the “en-

vironment” from Petitioner’s “facility.” Compare Pet.

App. 5la-56a ((Complaint 998, 34-36 (hazardous

substances), 9, 29 (facility), 29-31 (environment), 30-

31 (release)), with CERCLA definitions in 42 U.S.C.

§§ 9601(8) (“environment”), (9) (“facility”), (14) (“haz-

ardous substance”), (22) (“release”). Though Barnes

did not address a statute of repose, its reasoning

would apply section 9658 on these facts and further

calls into question the earlier Fifth Circuit decision in

Burlington Northern that Petitioner depends on for a

circuit split.

The legislative history is indeed “unusually help-

ful” as Barnes states, for the House Conference Re-

port noted that section 9658 was meant to “address

the problem identified in the” Study Group Report,

which is that “certain State statutes deprive plaintiffs

of their day in court.” H.R. CONF. REP. 99-962, 1986

U.S.C.C.A.N. 3276, 3354. The narrow “simple read-

ing” advanced by Petitioner, however, as the decision

below recognized, would deprive plaintiffs in states

with statutes of limitation containing repose provi-

sions of their day in court.

22

Finally, this case is not a perfect vehicle for this

Court. This case is only one part of a long-running

dispute about how to clean up the mess left behind by

Petitioner. The EPA previously entered into a consent

order regarding the site with Petitioner and the sub-

sequent landowner, J.A. 190-221, and the North

Carolina Department of Environment and Natural

Resources has also made certain demands of Pe-

titioner. Petitioner sued the subsequent landowner

over the costs of responding to the agencies, and

that lawsuit is ongoing. See CTS Corp. v. Mills Gap

Road Assocs., No. 1:10-CV-156-GCM, 2013 WL 4499136

(W.D.N.C. Aug. 20, 2013) (granting defendant's

amended motion for partial summary judgment).

Coincidentally, the Eleventh Circuit will soon

hear argument on the exact same issue Petitioner has

raised — indeed, involving the exact same ten-year

limitations period in N.C. Gen. Stat. § 1-52(16). See

Bryant v. United States, No. 12-15424 (11th Cir. to be

argued Jan. 17, 2014). Bryant involves numerous

United States Marines and family members who

developed leukemia and other cancers more than ten

years after being exposed, at Camp Lejeune in North

Carolina, to the worst public water contamination in

United States history. If the Eleventh Circuit were to

hold that section 9658 does not preempt the ten-year

limitations period in N.C. Gen. Stat. § 1-52(16), a

meaningful circuit split would then exist. But for now,

the Court should continue to allow the interpretation

of section 9658 to percolate in the lower courts.

°

23

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

JOHN J. KORZEN

WAKE FOREST UNIVERSITY

SCHOOL OF LAW

APPELLATE ADVOCACY CLINIC

Post Office Box 7206 Reynolda Station

Winston-Salem, North Carolina 27109

336-758-5832

Counsel for Respondents

November 2013