Uncharted Territory – Clearing up the Confusion Surrounding the Camp Lejeune Justice Act of 2022
On August 10th of 2022, President Biden officially signed The Camp Lejeune Justice Act of 2022 (the “CLJA”) into law. The CLJA establishes a new federal cause of action against the United States Government related to contaminated water uncovered at the Camp Lejeune military station from 1953 to 1987. Given its specificity and rather short window of opportunity — the CLJA is truly a matter of first impression. The CLJA not only uncloaks the protection of sovereign immunity, but also offers future claimants a strikingly low “at least likely as not” burden of proof to prevail. While promising, this article will explain the magnitude of this express waiver of sovereign immunity and expand upon the nuances under the administrative step pre-requisite and the applicable statute of limitations period. Lastly, this article will discuss how these claims should be handled on behalf of a deceased individual.
I. Government Immunity and the Feres Doctrine
Perhaps the most substantial effect of the CLJA is its express waiver of the sovereign immunity defense. Under Section 804 (f): “The United States may not assert any claim to immunity in an action under this title that would otherwise be available…” S.3373 – Honoring our PACT Act of 2022, Sec. 804 (f). This single provision effectively strips from the U.S. Government its main line of defense. To better understand the importance of subsection (f), it helps to consider the prior roadblock sovereign immunity posed. For decades, District Courts were strictly bound by the Feres Doctrine. The Feres doctrine controlled. This was true notwithstanding the merit of the claims brought against the U.S. government. Lawsuits which alleged our own government not only disposed radioactive material at the base, but grossly failed to warn those stationed at the base of such dangers and then concealed such information from the public. Lawsuits capable of being backed by evidence showing the United States may have been engaged in tortious misconduct of the highest degree.
Yet, under the Feres doctrine, “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146 (1950). As a result, all Camp Lejeune lawsuits were predestined to meet the same fate -- A Motion to Dismiss for lack of subject matter jurisdiction. For example, in November of 2021, The Fourth Circuit Court of Appeals relied on Feres to dismiss a wrongful death action brought by a widow on behalf of her husband (a former U.S. marine stationed at Camp Lejeune from May 1970 to December of 1971). Clendening v. United States, 19 F.4th 421 (4th Cir. 2021). The District Court tossed the case on jurisdictional grounds. In doing so, it had no choice but to turn a blind eye to the strong evidence linking a former U.S. marine’s leukemia to the contaminated waters at Camp Lejeune. In reaching its conclusion, the Court stated: “we do not discount the severe harm [he] suffered...” Id. at 436.
However, this all changed on August 10th. Upon the CLJA becoming law, this jurisdictional and procedural roadblock was finally lifted. The U.S. government is now entirely vulnerable to suit and Courts can now finally consider such claims on their merits. This is significant considering over 1 million former veterans were exposed to the contaminated water at Camp Lejeune from 1953 to 1987. Predictably, the U.S. government is set to face litigation of epic proportions, opening the flood gates in a way not seen since 9/11. Now, while The Department of Veteran Affairs will soon release its own interpretation of the CLJA, the express language on its face and case law suggests the process may be more simplistic than it appears.
II. The Administrative Hurdle: Disposition by a Federal Agency Pre-Requisite
While the primary purpose of The CLJA is to provide a direct avenue for a Camp Lejeune claimant to have their day in Court – there exist some important nuances under the statute that require a closer look. First, there may be some confusion surrounding 804 (h) -- titled “Disposition by Federal Agency Required.” That provision expressly states: “An individual may not bring an action…before complying with 2675 of title 28, United States Code.” S. 3373 – Honoring our PACT Act, Section 804 (h). Title 28 of the U.S. Code requires “the claimant to have first presented the claim to the appropriate Federal agency …[and] his claim shall have been finally denied by the agency in writing…” 28 U.S. Code Sec. 2675 (a). Yet, within that very same provision exists a 180-day qualifier. That is, “the failure of an agency to make a final disposition of a claim – within six months – may be deemed a final denial at the option of the claimant anytime thereafter.” 28 U.S. Code Sec. 2675 (a).
Therefore, it appears the CLJA mandates that either one of two things must occur before a lawsuit can be filed. Either: (1) have the claim denied at the administrative level; or (2) have that same claim left unresolved for 180 days. Case-law suggests “the requirement as listed under Section 2675 (a)…is aimed at sparing the court the burden of trying cases when the administrative agency can settle the case without litigation.” Cozallo v. United States, 372 F. Supp 61, 62 (D.P.R. 1973) (Citing Robinson v. United States Navy, 342 F. Supp. 382, 383 (D.C. PA. 1972). This makes sense in that the pre-requisite under the CLJA is essentially nothing more than consideration in exchange for the U.S. government waiving sovereign immunity. In 1967, the U.S. Supreme Court explained “when the United States of America has granted express consent to be sued…it may define the conditions and limitations under which suits are permitted.” Honda v. Clark, 386 U.S. 484, 501 (1967). Here, one such condition is this administrative pre-requisite under 804 (h).
So how will the government and the Court handle these claims? Some believe most will be denied at the administrative level -- then funneled directly into an MDL in the Eastern District of North Carolina. Others would argue all claimants should be paid out at the administrative level like the 9/11 compensation fund. Another prediction is the most severe claims will be resolved without needing to ever file suit while pooling the rest into the MDL. Regardless, it should be emphasized this administrative step cannot be overlooked. In Cozallo, a District Court held a Plaintiff lacked standing to sue before the Court because he had not filed an administrative claim in relation to his claim arising under the Federal Torts Claim Act against the United States of America). Cozallo v. United States, 372 F. Supp 61, 62 (D.P.R. 1973).
For now, perhaps the easiest way to simplify the process can be accomplished by breaking it down into two separate phases. First is the administrative claims process (“Phase 1”). Second will be the actual lawsuit (“Phase 2). To kickstart Phase 1: “a Camp Lejeune claimant … should first submit a claim to the Navy’s Tort Claims Unit (TCU) by completing a Standard Form 95 (SF-95).”1 This form can be filed directly with the Navy Torts Claims Unit in Norfolk, Virginia. Upon filing, the 180-day clock starts ticking. If the claim is denied, the pre-requisite is satisfied, and the lawsuit becomes ripe for filing. If the 180-day window expires without any action, the administrative step can be said to be constructively satisfied upon the 180-day window closing. This, again, coincides with the unique qualifier under the U.S. Code. While further guidance is certainly coming, there is no harm in starting the process by filing an SF-95 form on a claimant’s behalf. At the very least, doing so will trigger the 180-day window sooner rather than later.
III. Statute of Limitations
Unlike the administrative step provision, the actual statute of limitations scheme under the CLJA is unambiguous. Under the Section 804 (j) (2):
A claim in an action under this section 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 Section 2675 of title 28, United States Code.
The outer window, Subsection (A), requires a lawsuit to be filed within two years from “the date of enactment of this Act.” This means all cases must be filed by August 10, 2024. On August 11, 2024 – this limited window will shut forever. This statute of limitation scheme essentially is drafted to bar an individual from hypothetically filing suit in 2025, 2026, 2027, and so on.
IV. How Claims Should Be Handled on behalf of a Deceased Individual
Lastly, another question that has been raised by mass-tort lawyers is how cases should proceed on behalf of a deceased individual. On form SF-95 there is a box for any agent or other representative to file a claim on a person’s behalf. It should be noted that section 11 contains an explicit instruction which reads:
If you are filing on behalf of an estate or another person…An authorized agent must provide evidence establishing express authority to act for claimant, showing title/legal capacity of person signing with evidence of authority to present a claim. Please attach document with your claim form).
Thus, it will be important to attach some kind of a certificate of administration or affidavit as proof (though the Department of Veteran’s Affairs may require a specific document). Nevertheless, once the case ultimately proceeds to the lawsuit phase – the Federal Rules of Civil Procedure will govern. In accordance with the rules, it will be crucial to then file the Complaint in the name of the personal representative in accordance with the name listed under section 11 of the SF-95 administrative form. As is true in ordinary litigation in Federal Court, filing the Complaint with an incorrect caption can lead to an unneeded headache down the road.
Contact an Experienced Lawyer
The Camp Lejeune Justice Act of 2022 raises many important issues regarding the rights of those injured by toxic exposure at the base. If you or a loved one have any questions regarding a Camp Lejeune claim, contact Osborne & Francis at (561) 293-2600 to set up a free consultation to discuss your legal options.
Joey Osborne, J.D.
Disclaimer: This article is for educational and research purposes only and is predictive in nature. The content and conclusions made in this article are not legal advice and not intended to be taken as legal advice in any way shape or form. The Author discloses that he is currently pending admission to the New York Bar and is not a licensed attorney or admitted to practice in any jurisdiction.