as
[D~E.
This~
ID IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DMSION
No. 7:22-CV-129-D
JERRY DEFORGE, JAMES FLENOURY, ) DAVID SHARPE, FRANCES CARTER, ) Administrator for the Estate of Ronald Carter, ) and JOEL PEDALINE, )
Plaintiffs, )
v. )
THE UNITED STATES OF AMERICA, )
Defendant. )
ORDER
For the reasons stated in the attached order of today in Fancher v. United States, No. 5:22- CV-3 l 5, 30] (E.D.N.C. Dec. 20, 2022), the court DISMISSES WITHOUT PREJUDICE plaintiffs' complaint for failure to exhaust administrative remedies under section 804(h) of the Camp Lejeune Justice Act
SO ORDERED. day of December, 2022.
J SC.DEVER United States District Judge
(2022([0.E.
\
admjnjstrative
on admjnjstri:ttive clahns
· afteI:
These.~esareBeltv. UnitedStates,No. ·; ..... . ... 7:22-CVi132-D (E.D.N.C.);··Guthrie States, (E.D.N.C.); Gonzalez 7:22~CV-130-D
(E.D.N.C~);
concerning administrative
Fancher'srcase IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION
DAVID FAN CHER, et. al,
Plaintiffs, v. UNITED STATES OF AMERICA,
Defendant.
No. 5:22-CV-31S
ORDER
On August 10, 2022, or shortly thereafter, various plaintiffs (collectively ''plaintiffs") filed complaints under the Camp Lejeune Justice Act of2022 ("Camp Lejeune Justice Act"), Pub. L. No. 117-18, § 804, 136 Stat. 1802 1]. On August 26, 2022, plaintiffs filed a joint motion for consolidation and a memorandum in support. 1
On September 29, 2022, the court denied plaintiffs' motion for consolidation. See [D.E. 25]. The court also ordered briefing from the parties on whether plaintiffs had complied with the exhaustion requirement in section 804(h) of the Camp Lejeune Justice Act given that plaintiffs relied that they filed
1 Plaintiffs' .cases contain different docket entries for the filings docketed the initial complaints. 7:22-CV-125-D(E.D.N.C.);Partainv,United States, No. v. United No. 4:22-CV-97-D
v. United States, No. (E.D.N.C); Cline v. United States, No. 7:22-CV- 141-D Isaksen v. United States, No. 7:22-CV-132-D (E.D.N.C.); Whatley v. United States, No. 7:22-CV-126-D (E.D.N.C.); Deforgev. United States, No. 7:22-CV-129-D (E.D.N.C.). Plaintiffs, however, each make essentially the same arguments exhaustion. Therefore, the court uses the docket entries and arguments in David in this order. Although this order cites Fancher' s docket entries, the court has read and considered every filing in each plaintiff's case. This order applies in each plaintiff's case. .
issue United
admjnjstrative --section admfojstrative
submitted, et~, clahn admjnjstrative reqwrement
Marine
', clahn injury wrongful Government
clahnant clahn clahn l>y 1:1gency clahn , ........... , .. _ ~- --~ ,,,a.~.. ~. ~- ., ~,~-~- shall~ at the claunant any
cl~
party cross-clahn, counterclahn. under
clahn upon and that the United States Department of the Navy (''Navy") denied before the Camp Lejeune Justice Act became effective on August 10, 2022. Id.
On October 21, 2022, plaintiffs briefed the [D.E. 26]. On November 10, 2022, the States responded [D.E. 28]. On November 17, 2022, plaintiffs replied [D.E. 29]. As explained below, the court dismisses without prejudice plaintiffs' complaint for failure to exhaust
remedies under 804(h) of the Camp Lejeune Justice Act. Plaintiffs' claims that they filed and that the Navy denied before August 10, 2022, do not satisfy the admjnjim-ative exhaustion requirement in section 804(h) of the Camp Lejeune Justice Act.
I. Between 2010 and 2017, each plaintiff a Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680, to the Navy under the FTCA exhaustion
in 28 U.S.C. § 267S(a) alleging injuries from harm allegedly caused by exposure to the water at Camp Lejeune Corps Base, North Carolina. See [D.E. 26-3-26-11]. 2
By 2019, the
2 28 U.S.C. § 267S provides that: ( a) An action shall not be instituted upon a against the United States for money damages for or loss of property or personal injury or death caused by the negligent or act or omission of any employee of the while acting within the scope of his office or employment, unless the shall have first presented the to the appropriate Federal agency and his shall have been finally denied the agency in writing and sent by certified or registered mail. The failure of an to make final disposition of a within six months after
. ' it is filed option of the time thereafter, be deemed a final denial of the for purposes of this section. The provisions of.this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third complaint, or. (b) Action this section shall not be instituted for any sum in excess of the amount of the· claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the to the federal agency, or allegation and proof of
2 final
considered requirements Lejeune you
action C~p individuals otherwise
804(b): Camp
See! 804(c}-{d).
relating~ amount-of:the·claim.
..:... . -- "I. .. ,.., ....... ,~-·
The not Navy had denied plaintiffs' claims. See id. In 2019, each plaintiff requested reconsideration of their claims. See id. On August 5, 2022, the Navy denied plaintiffs' requests for reconsideration. See id. Iri its denial, the Navy stated that plaintiffs'
claims have not, and will not,· be sufficient to meet the of any other statute, including the Camp Lejeune Justice Act. To meet the requirements of the Camp Justice Act, must submit a claim signed and dated after the date of enactment of that statute so that this office can consider the claim under the substantive requirements of that statute. See [D.E. 28-1] 7.
On August 10, 2022, President Biden signed the Camp Lejeune Justice Act into law. See Pub. L. No. 117-168, § 804. The Camp Lejeune Justice Act created anew federal cause of permitting "appropriate relief for harm that was caused by exposure to the water at Lejeune" for who resided, worked, or were exposed for not less than 30 days during the period between August 1, 1953, and December 31, 1987. Seeid. § In the Lejeune Justice Act, Congress established the burden of proof for this new federal cause of action, provided the United States District Court for the Eastern District of North Carolina with "exclusive jurisdiction" and "exclusive venue" for this new federal cause of action, and provided for jury trials for this new federal cause of action. id. §§ Congress also abrogated the discretionary function exception otherwise available to the United States under 28 U.S.C. § 2680(a), 3
intervening facts, the ·
. .• .• ( c) Disposition of any claim by the Attorney General or other head of a federal agency shall not be competent evidence of liability or amount of damages. 28 u.s.c. § 2675.
3 28 U.S.C. § 2680(a) provides that:
provisions of this chapter and section 1346(b) of this title shall apply to--
3
Armed &
of
enactment 8040)(1
sectioµ
alleging the \ the'
before
縠 , .. ,,.~ ~-·-.· 縠 .... ~.-.... ,, ·•·"'. ·- f ,.
act statute
agency prohibited the award of punitive damages, and provided that the Camp Lejeune Justice Act "does not apply to any claim or action arising out of the combatant activities of the Forces." Id. §§ 804(f)-(g) (i). Moreover, Congress provided that "[a]n individual may not bring an action under this section [i.e., the Camp Lejeune Justice Act] before complying with section 2675 title 28, United States Code." Id. § 804(h).
The Camp Lejeune Justice Act applies "only to a claim accruing before the date of of this Act'' and includes its own statute of limitations. Id. § ). As for the statute of limitations, the Camp Lejeune Justice Act states that a "claim in an action under this may not · be commenced after the later of (A) the date that is two years after the date of enactment of this Act; or (B) the date that is 180 days after the date on which the claim is denied under [28 U.S.C. § 2675]." Id. § 804(j)(2). The Camp Lejeune Justice Act also states that "[a]ny applicable statute ofrepose or statute of limitations, other than under paragraph (2), shall not apply to a claim under the Camp Lejeune Justice Act." Id.§ 8040)(3).
On August 10, 2022, or shortly thereafter, various plaintiffs filed complaints under the Camp Lejeune Justice Act harm caused by exposure to water at Camp Lejeune. Plaintiffs argue that text, structure, and purpose of the Camp Lejeune Justice Act support their argument that the claims that they filed and that the Navy denied the Camp Lejeune Justice Act became law on August 10, 2022, comply with the _administrative exhaustion requirement in section 804(h).
- - • ., ••
(a) Any claim based upon an or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such
or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a).
4
of~tations
current
administrative Act.
structure,
admini~tive because administrative opp~rtunity
. ,->-'•--~. 縠 ... - ,a;: _.,,,_, • ''"·¥-• •., ,,. _,, ,. , " -. ·-.
alw,ys
De_p't F.3d. See [D.E. 26, 29]. Essentially, plaintiffs argue that Congress intended the Camp Lejeune Justice Act to provide a new cause of action to vindicate a preexisting claim. Plaintiffs contend that Congress included the two-year statute of limitation in section 804(j)(2)(A) because Congress knew preexisting claims under 28 U.S.C. § 2675 would not meet the 180-day statute in section 804(j)(2)(B). Plaintiffs also argue that the court should construe the Camp Lejeune Justice Act in favor of and former members of the armed forces and that the United States' reading of the Camp Lejeune Justice Act frustrates the purpose of the Camp Lejeune Justice Act. See [D.E. 26, 29].
The United States responds that plaintiffs have not complied with the exhaustion requirement in section 804(h) of the Camp Lejeune Justice See [D.E. 28]. Essentially, the United States argues that plaintiffs' interpretation of the Camp Lejeune J-gstice Act does not comport with the statute's text, or purpose. The United States also argues that plaintiffs' proposed construction frustrates the purpose of requiring exhaustion in Section 804(h) plaintiffs have not given the Navy the to assess its litigation risk under the Camp Lejeune Justice Act and to resolve claims under the Camp Lejeune Justice Act administratively and thereby obviate the need for costly and time-consuming litigation.
JI.
.
, •
"In interpreting a statute, 'a court should tum first to one, cardinal canon [of construction] before all others': the plain meaning rule." Ayes v. U.S. ofVeterans Affs., 473
104, 108 (4th Cir. 2006) (alteration in original) (quoting Conn. Nat'l Bank v. Germain, 503
I U.S. 249,253 (1992)). In applying the plain meaning rule, courts must "consider the context in
5
may
to
ones
Mur;phy.
- venqe-foi-"such causes of action in
8040), l admjnjstrative which the statutory words are used because [courts] do not construe statutory phrases in isolation; [courts] read statutes as a whole." Id. (cleaned up). "The [statutory construction] inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent." Barnhart v. Sigmon Coal. Co., 534 U.S. 438,450 (2002) (quotation omitted); see Ayes, 473 F.3d at 108.
Section 804(h) of the Camp Lejeune Justice Act states that "[a]n individual may not bring an action under this section before complying with section 2675 of title 28, United States Code." Pub. L. No. 117-168, § 804(h). Section 804(a) states that "[t]his section be cited as the Camp Lejeune Justice Act of2022." Id.§ 804(a) (emphasis added). Thus, the reference to "section" in section 804(h) means the Camp Lejeune Justice Act. Furthermore, as discussed, section 804(b) creates a new federal cause of "action ... to obtain appropriate relief for harm that was caused by exposure the water at Camp Lejeune." Id. § 804(b). Accordingly, a plain reading of section 804(h) makes clear that section 804(h) applies only to a claim in an action that has ''yet to be brought-not to that have already been filed." Bishop v. Lewis, 155 F.3d 1094, 1095 (9th Cir. 1998); see Lindh v. 521 U.S. 320, 328 n.4 (1997); Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 950 (1997).
Congress expressly prescribed the reach of the Camp Lejeune Justice Act. Congress created a new federal cause of action in section 804(b ), defined the burden of proof in section 804( c ),
. . ..... established exclusive jurisdiction and exclusive the United States
District Court for the Eastern District of North Carolina in section 804( d), created a new statute of limitations applicable to the new federal cause of action in section and required
- exhaustion under section 804(h) before a person could "bring an action under [the
6
G). See G)(3).
cause th~
\ See,~ Contamination Ga. aff'd, ··2019) (per Beyant
De.pt. ofNayy, •2-5 Mar.
•2-6 aff'd,
•2-5 (unpub~shed);
U;S. Camp Lejeune Justice Act]." Pub. L. No. 117-168, §§ 804(b}-{d), (h) & The Camp Lejeune Justice Act also specifically precludes certain defenses and immunities. id.§§ 804(t),
The title of section 804 refers to the Camp Lejeune Justice Act as a "federal of action relating to water at Camp Lejeune[,]" which comports with new federal cause of action Congress created in section 804(b). See id.§ 804(b). Notably, before Congress enacted the Camp Lejeune Justice Act, courts dismissed numerous claimants' FTCA causes of action arising from harm that was allegedly caused by exposure to the water at Camp Lejeune. The courts dismissed these FTCA causes of action due to North Carolina's statute of repose, the FTCA discretionary function exception in 28 U.S.C. § 2680(a), and the Feres doctrine. In re Camp Lejeune N.C. Water
Lit., 263 F.3d 1318, 1362-65 (N.D. 2016), 774 F. App'x 564 (11th Cir. curiam) (unpublished); v. United States, 768 F.3d 1378, 1380-86 (11th Cir. 2014); Bell v. Off. of Judge Advocate Gen., No. 4:19-CV-2221, 2021 WL 1143852, at (E.D. Mo. 25, 2021) (unpublished); Clendening v. United States, No. 7:19--CV-137, 2020 WL 3404733, at (E.D.N.C. June 19, 2020) (unpublished), 19 F.4th 421, 426--37 (4th Cir. 2021); Tatev. CampLejeune,No.4:19-CV-91,2019WL 7373699,at •t-3 (E.D.N.C.Dec. 30, 2019)(unpublished); Swanson v. United States, No. 3:18-cv-2148, 2019 WL 7633157, at •2-3 (D. Or. Nov. 6, 2019) (unpublished); Perez v. United States, No. 09-22201-CIV, 2010 WL 11505507, at (S.D. Fla. Mar. 1, 2010) Snyderv. United States, 504 F. Supp. 2d 136, 139-43 (S.D. Miss. 2007).
The court has a "duty 'to give effect, if possible, to every clause and word of a statute."' United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)); see Williams v. Taylor, 529 U.S. 362, 404 (2000); Market Co. v. Hoffinan, 101
112, 115-16 (1879). Courts are ''reluctan[t] to treat statutory terms [and phrases] as
7
_ BLACK'S LA _when
1986);
became
Lejeun~
watq
law~ Smitb, (2019) ·• - when pl~tiff has that is~ when can
relief); surplusage." Babbitt v. Sweet Home Chapter. Communities for Great Ore., SlSU.S. 687, 698 (199S); see Ratzlafv. United States, S10 U.S. 13S, 140 (1994).
Section 804(j) contains a statute of limitations. Under section 804(j)(l ), Congress limited the Camp Lejeune Justice Act to claims "arising before the date of enactment of [the Camp Lejeune Justice Act.]" Pub. L. No. 117-168, § 804(j)(l). Congress did not define "claim" in the Camp Lejeune Justice Act. However, Black's Law Dictionary defines "claim" to mean, inter alig, a "demand for money, property, or a legal remedy to which one asserts aright." Claim, w DICTIONARY (11th ed. 2019). Generally, a claim "accrues" a person is injured. See United States v. Kubrick, 444 U.S. 111, 119 n.6 (1979); Henderson v. United States, 78S F .2d 121, 125-26 ( 4th Cir. Wilkinson v. United States, 677 F .2d 998, 1000--02 ( 4th Cir. 1982). Thus, the Camp Lejeune Justice Act applies to those damaged by exposure to the water at Camp Lejeune before August 10, 2022 (i.e., the date when the Camp Lejeune Justice Act law).
Plaintiffs contend that they have a claim accruing before the date of enactment of the Camp Justice Act within the meaning of section 804(j)(l ). Of course, before August 10, 2022, each plaintiff did make a demand for money concerning an alleged injury caused by exposure to the
at Camp Lejeune. However, each plaintiff's claim under the Camp Lejeune Justice Act did not accrue until August 10, 2022, when the Camp Lejeune Justice Act became See. e.g., McDonough v. 139 S. Ct. 2149, 215S (a plaintiff's claim accrues under federal law
the a complete and present cause of action, the plaintiff file suit and obtain Wallace v. Kato, 549 U.S. 384,388 (2007) (same); Regains v. City of Chicago,
\ ' 918 F .3d 529, S33 (7th Cir. 2019) (same). On August 10, 2022, each plaintiff's statute of limitations began to run in section 804(j)(2). In addition, before bringing a Camp Lejeune Justice Act claim in
8
for_the
~tute
·
way filing
on
foT See· [D.E._ rejec~ inconsistent text, the·Gainp Lejewie Act's
117-168~ with
. an action in the United States District Court Eastern District ofNorth Carolina, each plaintiff had to comply with the administrative exhaustion requirement in section 804(h).
Section 804(j)(2) provides a oflimitations for "a claim in an action under" the Camp Lejeune Justice Act. The phrase "claim in an action under'' the Camp Lejeune Justice Act is different than simply the word "claim" in section 804(j)(l ). The phase "claim in an action under'' the Camp Lejeune Justice Act means a claim forrelief underthe Camp Lejeune Justice Act in a civil action filed in the United States District Court for the Eastern District ofNorth Carolina. See Raplee v. United States, 842 F .3d 328, 332-33 ( 4th Cir. 2016) (The word "action" has "only one reasonable meaning: it refers to a federal civil action. . . . The only to begin a federal civil action is by
a complaint with a federal district court."). Section 804(j)(2) provides that a "claim in an action under this section [i.e., the Camp Lejeune Justice Act] may not be commenced after the later of (A) ''the date that is two years after the date of enactment of this Act;" or (B) ''the date that is 180 days after the date on which the claim is denied under [28 U.S.C. § 267S]." Pub. L. No. 117-168, § 804(j)(2).
Plaintiffs argue that Congress intended the two-year statute of limitation in section 804(j)(2)(A) to allow claimants to rely administrative claims that they filed and that the Navy denied before the Camp Lejeune Justice Act became effective on August 10, 2022, adminimrative exhaustion under section 804(h). 26] 6-7. The court plaintiffs' argument as
with the structure, and purpose of the Act. First, Justice statute of limitation period mirrors the FTCA's time period for commencing an action against the United States. Compare Pub. L. No. § 804(j)(2) 28 U.S.C. § 2401 ("A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months
9 8040)(2) Camp claims
admini~tive adminimative
facilitare
comports
plaintiffs' argw:nerit that claims and ,August: .~ ..
adminimative
Lej~une
by ' after the date of ... notice of final denial of the claim by the agency to which it was presented."). This reference to section 2675 in section 804(h) and language similar to section 2401 in section·
of the Lejeune Justice Act support the court's conclusion that filed and denied before August 10, 2022, do not meet the administrative exhaustion requirement under section 804(h). In the Camp Lejeune Justice Act, Congress abrogated parts of the United States' immunity and created a new federal cause of action, with an exhaustion requirement and statute of limitation periods similar to the FTCA. The exhaustion requirement in section 804(h) ensures that the United States and the Navy have time to review the new Camp Lejeune Justice Act claims in light of the new federal cause of action and to administrative settlement. See Pub. L. No. 117-168, §§ 804(e), (h) & (j). If the claimant is not satisfied with the Navy's'offer in the administrative process or the Navy takes more than 180 days to make a settlement offer, the claimant can file suit in the United States District Court for the Eastern District ofNorth Carolina. See id. § 804(j)(2).
The court's interpretation of the statute of limitations period in section 804(j) of the Camp Lejeune Justice Act with administrative exhaustion in section 804(h) of the Camp Lejeune Justice Act and benefits those entitled to bring administrative claims and to sue under the. Camp Lejeune Justice Act, benefits the Navy who can seek to resolve claims administratively, and benefits the United States District Court for the Eastern District ofNorth Carolina. If the court were to adopt
the that plaintiffs submitted that the Navy-denied before 10, 2022, satisfy the exhaustion requirement in section 804(h), the court would effectively abrogate portions of the Camp Justice Act and invite an early flood of lawsuits into a single court with four United States District Judges. For example, assume that a Marine veteran, on January 2, 2019, filed a claim under 28 U.S.C. § 2675 for harm that was caused
10
.
the
would
action.
8040)(2)(B)_
administrative would
ex8Illple, that ve~ August 10~ LejeUBe]ustice Act·: __ ,~"-.:->-,~ exposure to the water at Camp Lejeune and that the Navy denied the claim on July 1, 2019. Before August 10, 2022, the veteran would not have had any chance of success in a civil action under existing precedent Under the plaintiffs' interpretation of the Camp Lejeune Justice Act, however, the veteran could file an action under the Camp Lejeune Justice Act on August 10, 2022, and completely bypass administrative process that Congress required in section 804(h). Moreover,
[ according to plaintiffs, the veteran have to file an action under the Camp Lejeune Justice Act by August 10, 2024, or section 8040)(2)(A) would bar the veteran from bringing an Section 8040)(2)(B) would do nothing for the veteran because the 180-day period referenced in section
would have expired 180 days after July 1, 2020, which is before the Camp Lejeune Justice Act became law on August 10, 2022.
In contrast, applying the court's interpretation, if the same veteran filed a claim under 28 U.S.C. § 2675 on January 2, 2019, and the Navy denied the claim on July 1, 2019, then the July 1, 2019 date would be irrelevant under section 804(h) and 8040)(2). Instead, that veteran would need to file an claim under section 804(h)_on or after August 10, 2022. The Navy have the opportunity to address the claim and its litigation risk under the Camp Lejeune Justice Act and to make a settlement offer to the veteran. If the'Navy made a satisfactory settlement offer, then the veteran, the Navy, and this court would avoid costly and time-consuming litigation. Moreover, if, for the Navy denied the claim on December 30, 2022, section 8040)(2)(A) would provide until 2024, to file an action under the Camp Likewise, if the Navy did not act on the claim for 180 days from August 10, 2022, the veteran could file suit in February 2023. Alternatively, if the Navy was slow to act adminiimatively or settlement negotiations took time and the Navy denied the claim on July 10, 2024, the veteran would have 180
11
Camp"Lejeune
section §
some
Com.
U.S.C. §
§ construction
Act;, administrative
Henderson,
~tates. administrative-,exhaustion requirement enables claim with:
claim and!
Henderson,
., 縠 .. ,_.,. ... days from July 10, 2024, under section 804(j)(2) of the Justice Act to file suit Thus, the court's interpretation gives meaning to each provision in the Camp Lejeune Justice Act
The court's construction has another salutary effect. The court's construction of 804(h) avoids subjecting those claimants who filed a claim under 28 U.S.C. 2675 and had their claims denied before August 10, 2022, to litigation with the United States over whether principles of claim preclusion bar of those claimants from filing a claim under section 804(h) of the Camp Lejeune Justice Act. Cf. GAF v. United States, 818F.2d901,912-16(D.C. Cir.1987) (holding that claim preclusion barred claimants who litigated and lost on the issue of subject-matter jurisdiction arising from an asbestos claim filed under 28 2675 in the Second Circuit from pursuing a subsequent asbestos claim filed under 28 U.S.C. 2675 in the D.C. Circuit). Plaintiffs'
of the Camp Lejeune Justice Act subjects some claimants to such collateral litigation.
B. The court's conclusion comports not only with the text, structure, and purpose of the Camp Lejeune Justice but also with the general purpose of exhaustion. Section 804(h) provides that"[ a]n individual may not bring an action under this section before complying with [28 U.S.C. § 2675]." Id. § 804(h); cf. 785 F.2d at 123. Section 804(h)'s administrative exhaustion requirement expedites the fair settlement of Camp Lejeune Justice Act claims asserted against the United See McNeil v. United States, 508 U.S. 106, 112 n. 7 (1993). Section 804's
the Navy to consider each plaintiff's superior information, to seek to resolve each claim in light of the Navy's litigation risk arising from the and the newly enacted Camp Lejeune Justice Act, and to avoid expensive time consuming litigation. See id.; 785 F.2d at 124.
12
. •..
1
pre~ented
instituted;'' claim,
activity
burden
actions."
administration body co~d."
Lej~une Act causes of action caused-
./
administrative the admini!rl.:rative As the Supreme Court explained in McNeil, before "1966, FTCA claimants had the option of filing suit in federal court without first presenting their claims to the appropriate federal agency." McNeil, 508 U.S. at 112 n.7. "Moreover, federal agencies had only limited authority to settle claims." Id. "Because the vast majority of claims ultimately were settled before trial, the Department of Justice proposed that Congress amend the FTCA to require all claims to be to the appropriate agency for consideration and possible settlement before a court action could be
Id. ( cleaned up). "This procedure would make it possible for the first to be considered by the agency whose employee's allegedly caused the damage." Id. "That agency would have the best information concerning the activity which gave rise to the claim." Id. "Since it is the one directly concerned, it can be expected that claims which are found to be meritorious can be settled more quickly without the need for filing suit and possible expensive and time-consuming litigation." Id. "Every premature filing of an action under the FTCA imposes some
on the judicial system and on the Department of Justice which must assume the defense of such Id. (footnote omitted).· "Although the burden may be slight in an individual case, [28
\ U.S.C. § 2675] governs the processing of a vast multitude of claims." Id. "The interest in orderly
of this of litigation is best served by adherence to the straightforward statutory Id. Although plaintiffs' claims that the Navy denied before August 10, 2022, and plaintiffs' newly filed Camp Justice stem from harm that allegedly was by exposure to the water at Camp Lejeune, the claims that the Navy denied before August 10, 2022, claims under section 804(h) of the Camp Lejeune Justice Act, and the Camp Lejeune Justice Act causes of action in complaints filed in this court are distinct and involve dramatically different litigation risk. The FTCA represents a limited waiver of sovereign
13
acting
Viacao States, 299,,
S06-07 ~S6-S7
recognized (Panama)
all
IS,
. adminiirtrative;exhaustionrequirement cam1ot i .· -- ;;,-
Postal immunity for injury or loss caused by the negligent or wrongful act of a federal government employee within the scope of his or her employment. See 28 U.S.C. § 1346(b ); United States v. S.A. Empresa de Aerea Rio Grandense (Varig Airlines). 467 U.S. 797, 807--08 (199S); Williams v. United SO F.3d 30S (4th Cir. 199S); Radin v. United States, 699 F.2d 681, 68S (4th Cir. 1983). Subject to certain exceptions, the FTCA permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred. See 28 U.S.C. § 1346(b); Levin v. United States, S68 U.S. S03, (2013); Raplee, 842 F .3d at 331; Harris v. United States, 718 F .2d 6S4, ( 4th Cir. 1983). ''The FTCA does not itself provide for a substantive cause of action." Unus v. Kane, S6S F .3d 103, 107 ( 4th Cir. 2009). Rather, the FTCA "serves to convey jurisdiction when: the alleged breach of duty is tortious under state law, or when the [federal] government has breached a duty under federal law that is analogous to a duty of care by state law." Goldstar S.A. v. United States, 967 F.2d 96S, 969 (4th Cir. 1992). "Being a waiver of sovereign immunity, the FTCA is strictly construed, and ambiguities are resolved in favor of the United States." Williams, SO F .3d at 30S; UnitedStatesv.Nordic Village.Inc., S03 U.S. 30,34(1992); UnitedStatesv. Orleans,42SU.S. 807, 813-19 (1976); Dalehite v. United States, 346 U.S. 31-32 (19S3).
The text of28 U.S.C. § 267S(a) requires that "action shall not be instituted ... unless the claimant shall have first presented the claim to the appropriate Federal agency." 28 U.S.C. § 267S(a). The be waived. See Unus, S6S F .3d at 14; Kokotis v. U.S. Serv.,223 F.3d27S,278-79(4th_Cir. 2000);Ahmed v. United States, 30F.3d at Sl6; Plylerv. United States, 900F.2d40, 42 (4th Cir. 1990); Kielwien v. United States, S40 F.2d
676,679 (4th Cir. 1976).
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- an~ th~ Navy adminiirtrativelythese Congress did not define "claim" in section 2675(a). Section 2675(a) requires two elements for sufficient presentment of a claim to an agency: 1) written notice "sufficient to enable the agency to investigate[,]" and 2) a "sum-certain value on [the] claim." Ahmed, 30 F.3d at 517 (quotations omitted); 444 U.S. at 119 n.6; GAF 818 at 905. Failure to administratively exhaust an FTCA claim is a jurisdictional defect, depriving a district court of subject-matter jurisdiction. See Kokotis, 223 F.3d at 278; Plyler, 900 F.2d at 42; cf. United States v. Wong. 575 U.S. 402, 420 (2015) (the time limits in 28 U.S.C. § 240l(b) are not jurisdictional restrictions and are subject to equitable tolling).
Plaintiffs argue that before August 10, 2022, they properly notified the Navy about their claims harm that was allegedly caused by exposure to the at Camp Lejeune, they
a sum-certain value on the claims, and that section 804(h) includes claims filed and denied before August 10, 2022. See [D.E. 26] [D.E. 29] 2-3. The United States disagrees with plaintiffs' argument about section 804(h) and responds that the Navy reviewed and denied claims before August 10, 2022, in light of the legal landscape that existed before August 10, 2022, and after the Navy's very different litigation risk that existed before August 10, 2022. See [D.E. 28-1] 2, 4-5.
One of the core purposes of is to facilitate administrative settlement. See McNeil, 508 U.S. at_112n.7; Kokotis, 223 F.3dat279; Ahmed, 30 F.3dat517-18;
785 F.2d at 124; 704 Camp Lejeune Justice Act created a new federal cause of action and a new admini!U.l'ative exhaustion requirement for claims and opened the United States to new liability. See Pub. L. No. 117-168, §§ 804(a), (e). Congress'' creation of cause of action under Camp Lejeune Justice Act created a need for the to review new claims under section 804(h) in order to expedite fair settlements
15
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I in accordance with the purposes of exhaustion. See McNeil, 508 U.S. at 112 n.7; Kokotis, 223 F.3d at 279; Ahmed, 30 F.3d at 517-18; Henderson, 785 F.2d at 124.
The provides the Federal agency with notice sufficient to investigate the claim, assess its liability under the law, and decide whether to settle without the need for a federal lawsuit. See McNeil, 508 U.S. at 112 n.7; Ahmed, 30 F.3d at 517. When notice of asserts one cause of but a later lawsuit asserts a different cause of action comprised of elements, such admjnjim-ative notice of does not meet section 2675(a)'s exhaustion requirement for the latter claim in the lawsuit. For example, an
medical because a drug prescribed and taken during pregnancy harm to a baby is different than an informed consent that a drug taken before pregnancy caused harm to the mother and the baby. Where a plaintiff only the medical in the
process, the plaintiff cannot pursue the informed consent in a later lawsuit because the informed consent is unexhausted. See Drew v. United States, No. 3 :98-1817-19, Order (D.S.C. Dec. 1, 1998)(unpublished), d equally divided court without opinion, 231 F .3d 927 (4th Cir. 2000) (en bane); v. United States, 790 F. App'x 338, 339-40 (2d Cir. 2020) (unpublished); Lassie v. United States, No.14-CV-9959, 2015 WL 5472946. at (S.D.N.Y. Sept. 16, 2015)(unpublished), 668 F. App'x 395 Cir. 2016) (unpublished); M.A.R. ex rel. Reiszv. United States.No. 09CIV.1727,2009WL3877872,at•4(S.D.N.Y.Nov.18.2009);MBE Capital LLC v. AVPOL Int'l, No.-17 CIV. WL 568587, at (S.D.N.Y. Feb. 11, 2019); Schunk v. United States, 783 F. Supp. 72, 81 (E.D.N.Y. 1992); see also Henderson v. United States, 785 F.2d 121, 123-24 (4th Cir. 1986). Similarly, an for property damage arising from a car accident does not put an agency on notice of a for personal
arising from the same car accident. See Ahmed, 30 F .3d at 516-17. If a plaintiff files a
16
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JSC.DEVERill lawsuit against the United States asserting a personal injury claim in the lawsuit, the will dismiss the personal injury claim in the lawsuit as unexhausted. See id.; Duty v. United States, 854 F.2d 1316 (4th Cir. 1988) (percuriam)(unpublished table opinion)(same); 785 F.2dat
United States, 517F.2d 1328, 1329-30(6thCir.
1 1975) (percuriam)(same). ' Likewise, an admjnjirtrative claim for a breach of warranty does not put the agency on notice of a professional negligence claim. See Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1347 (Fed. Cir. 2008).
Plaintiffs' claims that they filed and that the Navy denied before August 10, 2022, do not satisfy the exhaustion requirement of section 804(h) of the Camp Lejeune Justice Act. Thus, the court dismisses without prejudice plaintiffs' complaint for failure to
I exhaust remedies. See Unus, 565 F.3d at 114; Kokotis, 223 F.3d at278; Plyer, 900 F.2d at 42; 785 F.2d at 123; Kielwien, 540 F.2d at 679.
m. sum, the court DISMISSES WITHOUT PREJUDICE plaintiffs' complaint for failure to exhaust remedies under section 804(h) of the Camp Lejeune Justice Act. In light of the conclusion, the court DECLINES to address how to apply Local Civil Rule 83.l(e)(5) to those attorneys who have made special appearances in "three unrelated cases in any twelve-month period." L. Civ. R. 83.l(e)(S).
SO ORDERED. This day of
17
United States District Judge