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Uncertifiable and Unrecoverable: Marines’ Claims Dismissed by 11th Circuit–Despite General Assembly’s Efforts to Save Them

In June, we blogged on how a United States Supreme Court decision interpreting a North Carolina statute of repose had created some strange bedfellows in the General Assembly–which had almost immediately rushed to “clarify” North Carolina’s statute of repose.  The General Assembly’s “clarification” efforts were directed toward saving lawsuits pending in the Eleventh Circuit that had been brought by U.S. Marines and their families who had been exposed to toxic groundwater at Camp Lejeune.

In that blog post, we mentioned how a commentator had noted that the result in the United States Supreme Court might have been different if North Carolina had a procedure in place allowing federal courts to certify questions of state law to the North Carolina Supreme Court for review.

On Tuesday, the Eleventh Circuit Court of Appeals issued a decision that essentially held that the General Assembly’s belated efforts to “clarify” North Carolina’s statute of repose were in vain.  A key issue before the Eleventh Circuit was “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))?”

Before the Eleventh Circuit answered that question against the Marines, it noted (almost wistfully):

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, 728 F.3d 391, 398 (4th Cir. 2013).

Once again, North Carolina has been called upon to join the 48 other states who have a procedure for certifying issues of state law to the state Supreme Court for review.

The General Assembly has been expanding the Supreme Court’s jurisdiction in recent months.  Will the cry of wounded Marines and their families prompt the General Assembly to take action once again? Or will proposals for the adoption of a certification process fade until a federal court decision once again (to paraphrase the General Assembly) “completely misinterprets North Carolina state law?”

–Beth Scherer

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One Response to "Uncertifiable and Unrecoverable: Marines’ Claims Dismissed by 11th Circuit–Despite General Assembly’s Efforts to Save Them"

  • Patrick Kane
    October 16, 2014 - 12:40 am Reply

    When we were at the Fourth Circuit in May there was colloquy between Judge King and counsel for Appellant about this precise issue of certification. Judge King made a point to note (perhaps wistfully) that NC was the only state within the Circuit that had no certification process. And the end result was a split panel that may very well have welcomed certification.

    http://www.ca4.uscourts.gov/Opinions/Unpublished/131033.U.pdf

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