Blackmer v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

NORTHERN AND SOUTHERN DIVISIONS

ELIZABETH GIRARD; BEULAH )

SLESSER; and SUZANNE MCLEOD as )

Personal Representative of the Estate of )

Hansell B. Malone, III, )

)

Plaintiffs, ) NO. 2:22-CV-22-FL

)

v. )

)

UNITED STATES OF AMERICA, )

)

Defendant. )

- - - - -

CYNTHIA BLACKMER as representative )

of the estate of David F. Blackmer; and )

FELICIA BAZEMORE as representative of )

the estate of Allen Ray Hardy, )

)

Plaintiffs, ) NO. 7:22-CV-123-FL

)

v. )

)

UNITED STATES OF AMERICA, )

)

Defendant. )

- - - - -

SHARON MASON as the Administrator for )

the Estate of Rita Roseberry, Deceased, )

)

Plaintiff, )

)

NO. 7:22-CV-128-FL

v. )

)

UNITED STATES OF AMERICA, )

)

Defendant. )

- - - - -

CLAUDIA MCCLARRIN; LINDA CRISP )

as representative of the estate of Michelle )

Causey; and PATRICIA WARREN )

as representative of the estate of Roseanne )

Warren, )

)

NO. 7:22-CV-135-FL

Plaintiffs, )

)

v. )

)

UNITED STATES OF AMERICA, )

)

Defendant. )

- - - - -

ANDREA WEINER f/k/a Andrea Michelle )

Byron, )

)

Plaintiff, )

) NO. 7:22-CV-139-FL

v. )

)

UNITED STATES OF AMERICA, )

)

Defendant. )

These five cases arising under the Camp Lejeune Justice Act of 2022 (“CLJA”) are before the

court on motions to dismiss by defendant. (See Case Nos. 2:22-cv-00022-FL (DE 21); 7:22-cv-

00123-FL (DE 26); 7:22-cv-00128-FL (DE 14); 7:22-cv-00135-FL (DE 23); 7:22-cv-00139-FL (DE

12)). The motions have been briefed fully, and the issues raised are ripe for ruling. For the following

reasons, the motions are granted.

BACKGROUND

Plaintiffs commenced these suits in August 2022, asserting in each case an action under the

CLJA to obtain “appropriate relief for harm that was caused by exposure to the water at Camp

Lejeune” for individuals who were exposed for not less than 30 days during the period beginning on

August 1, 1953, and ending on December 31, 1987. Pub. L. No. 117-168, § 804(b). Defendant moves

to dismiss each case for lack of subject matter jurisdiction due to failure to exhaust administrative

remedies. Defendant relies in each instance on a declaration of Randall D. Russell (“Russell”), head

of the Tort Claims Branch in the Admiralty and Claims Division of the Office of the Judge Advocate

General, United States Department of the Navy (“Navy”). Plaintiffs oppose the motions to dismiss,

relying in each case upon 1) a printout of an undated announcement by the Navy of a decision to deny

“Camp Lejeune Federal Tort Claims Act Claims,” and 2) administrative claim files related to each

plaintiff. Defendant replied, in each case, relying upon a second declaration by Russell.

COURT’S DISCUSSION

A. Standard of Review

A motion to dismiss under Rule 12(b)(1) may either 1) assert the complaint fails to state facts

upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter

jurisdiction in fact, apart from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

Where a defendant raises a “facial challenge[ ] to [subject matter jurisdiction] that do[es] not dispute

the jurisdictional facts alleged in the complaint,” the court accepts “the facts of the complaint as true

as [the court] would in context of a Rule 12(b)(6) challenge.” Kenny v. Wilson, 885 F.3d 280, 287

(4th Cir. 2018). When a defendant challenges the factual predicate of subject matter jurisdiction, a

court “is to regard the pleadings’ allegations as mere evidence on the issue, and may consider evidence

outside the pleadings without converting the proceeding to one for summary judgment.” Richmond,

Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

B. Analysis

Defendant argues that the instant actions must be dismissed for failure to exhaust

administrative remedies as required by § 804(h) of the CLJA, because none of the plaintiffs presented

a claim for relief under the CLJA to the government prior to commencing suit in this court. The court

agrees.

The CLJA provides the following new “federal cause of action relating to water at Camp

Lejeune,” established on the date of enactment of the CLJA, August 10, 2022:

An individual, including a veteran . . . or the legal representative of such an individual,

who resided, worked, or was otherwise exposed (including in utero exposure) for not

less than 30 days during the period beginning on August 1, 1953, and ending on

December 31, 1987, to water at Camp Lejeune, North Carolina, that was supplied by,

or on behalf of, the United States may bring an action in the United States District

Court for the Eastern District of North Carolina to obtain appropriate relief for harm

that was caused by exposure to the water at Camp Lejeune.

CLJA, § 804(b). This court has exclusive jurisdiction and venue “over any action filed under

subsection (b),” and the “burden of proof shall be on the party filing the action to show one or more

relationships between the water at Camp Lejeune and the harm.” CLJA, §§ 804(c)(1) and 804(d). In

addition, the CLJA sets forth a standard of proof unique to this action, prohibits punitive damages,

and precludes defenses of immunity and statutes of repose. See CLJA, §§ 804(c)(2), (f), (g), and (j).

The CLJA requires exhaustion of administrative remedies prior to filing such an action under

the CLJA, through the following provision: “DISPOSITION BY FEDERAL AGENCY REQUIRED.

– An individual may not bring an action under this section before complying with section 2675 of

title 28, United States Code.” CLJA, § 804(h) (hereinafter the “exhaustion provision”). In turn, the

cross-referenced statute is part of the Federal Tort Claims Act, which provides in pertinent part as

follows:

An action shall not be instituted upon a claim against the United States for money

damages for injury or loss of property or personal injury or death caused by the

negligent or wrongful act or omission of any employee of the Government while acting

within the scope of his office or employment, unless the claimant shall have first

presented the claim to the appropriate Federal agency and his claim shall have been

finally denied by the agency in writing and sent by certified or registered mail.

28 U.S.C. § 2675(a) (hereinafter, § 2675 of the Federal Tort Claims Act).

In considering the exhaustion provision in the CLJA, the court is mindful that “[t]he doctrine

of exhaustion of administrative remedies is well established in the jurisprudence of administrative

law.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). 1 “Because exhaustion requirements are designed

to deal with parties who do not want to exhaust, administrative law creates an incentive for these

parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full

opportunity to adjudicate their claims.” Id. at 90. “Administrative law does this by requiring proper

exhaustion of administrative remedies, which means using all steps that the agency holds out, and

doing so properly (so that the agency addresses the issues on the merits).” Id. “Otherwise, parties

who would prefer to proceed directly to federal court might fail to raise their grievances in a timely

fashion and thus deprive the agency of a fair and full opportunity to adjudicate their claims.” Pakdel

v. City & Cnty. of San Francisco, California, 141 S. Ct. 2226, 2230 (2021).

“Of paramount importance to any exhaustion inquiry is congressional intent.” McCarthy v.

Madigan, 503 U.S. 140, 144 (1992). “The best evidence of that purpose is the statutory text adopted

by both Houses of Congress and submitted to the President.” W. Virginia Univ. Hosps., Inc. v. Casey,

499 U.S. 83, 98 (1991). “It is . . . a cardinal principle of statutory construction that we must give

effect, if possible, to every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404

(2000). “[I]n looking to the plain meaning, we must consider the context in which the statutory words

are used because we do not construe statutory phrases in isolation; we read statutes as a whole.” Ayes

v. U.S. Dep’t of Veterans Affs., 473 F.3d 104, 108 (4th Cir. 2006).

1 Internal citations and quotation marks are omitted from all citations in the court’s analysis unless otherwise

specified.

In addition, although the United States Court of Appeals for the Fourth Circuit has not had

occasion to interpret the exhaustion provision in the CLJA, it and other courts of appeals have

interpreted § 2675 of the Federal Tort Claims Act to “require two elements for sufficient presentment

of a claim to an agency: 1) written notice sufficient to cause the agency to investigate, and 2) a sum-

certain value on the claim.” Ahmed v. United States, 30 F.3d 514, 517 (4th Cir. 1994); see, e.g.,

Glade ex rel. Lundskow v. United States, 692 F.3d 718, 722 (7th Cir. 2012) (“The administrative

claim need not set forth a legal theory, but it must allege facts that would clue a legally trained reader

to the theory’s applicability.”); Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir. 1983)

(holding that presentment of a claim under the FTCA must provide “sufficient notice to enable the

government to evaluate its exposure so far as liability is concerned”).

Here, the CLJA evidences Congress’s intent to require a plaintiff to present a claim for relief

under the CLJA to the government prior to commencing suit in this court. This conclusion arises

from the plain language of the exhaustion provision as well as the well-established exhaustion

principles set forth above. Because the CLJA creates a new cause of action, which did not exist prior

to enactment of the CLJA on August 10, 2022, the exhaustion provision necessarily requires

presentment to the government of a claim arising out of that cause of action.

By requiring “disposition by federal agency” as a prerequisite for “bring[ing] an action under

this section,” the exhaustion provision presupposes the existence of the cause of action before

exhaustion under the CLJA can take place. CLJA, § 804(h). Incorporating the requirements of §

2675 of the Federal Tort Claims Act does not expand the exhaustion provision in the CLJA. Rather,

where § 2675 of the Federal Tort Claims Act requires “the claimant shall have first presented the

claim to the appropriate Federal agency,” the claim must be one arising under the CLJA. 28 U.S.C.

§ 2675(a).

The foregoing interpretation of the exhaustion provision is further necessitated by well-

established principles of exhaustion and prior interpretations of § 2675 of the Federal Tort Claims

Act. In particular, plaintiffs can only provide the government a “fair and full opportunity to adjudicate

their claims” arising under the CLJA if they present them to the government after enactment of the

CLJA. Woodford, 548 U.S. at 90 (emphasis added). To ensure “proper exhaustion” of such claims

they must present them “so that the agency addresses the issues on the merits” under the standards

set forth in the CLJA. Id. (emphasis added). Likewise, presentment of a claim after enactment of the

CLJA, provides “cause [for] the agency to investigate” the claim under the standards of the CLJA.

Ahmed, 30 F.3d at 517. Only a claim presented after the date of enactment of the CLJA provides

“sufficient notice to enable the government to evaluate its exposure so far as liability is concerned,”

Keene Corp., 700 F.2d at 842, or to “clue a legally trained reader to the theory’s applicability.” Glade,

692 F.3d at 722.

Thus, where plaintiffs in these actions have not brought forth evidence of the requisite

exhaustion of administrative remedies after enactment of the CLJA, plaintiff’s claims must be

dismissed for lack of subject matter jurisdiction.

Plaintiffs nonetheless argue to the contrary that prior claims presented to the government for

personal injuries under the Federal Tort Claims Act are sufficient to satisfy the requirements of the

CLJA. For example, plaintiff Elizabeth Girard submitted a personal injury claim in the amount of

$30,000,000.00 to the Navy on August 4, 2011, on the basis that her “father was in the Navy and

stationed aboard Camp Lejeune from 1962-1965,” and that she “has Lung Cancer at age 31 in addition

to a tumor in left lung,” and is “unable to have children.” (Case No. 2:22-CV-22-FL, DE 24-3 at 2).

David F. Blackmer, for whose estate plaintiff Cynthia Blackmer serves as representative, submitted

a personal injury claim in the amount of $20,000,000.00 to the Navy on December 26, 2016, on the

basis that he “suffers with, among other health issues, esophageal cancer, which he believes is related

to his exposure to contaminants via air, water, and soil while at Camp Lejeune.” (Case No. 7:22-CV-

123-FL, DE 19-4 at 3). These prior claims, which were denied by the Navy on January 24, 2018, and

on reconsideration on August 5, 2022, are representative of prior claims submitted by all plaintiffs in

the instant actions.

These prior claims do not satisfy the exhaustion requirements of the CLJA because they did

not provide “cause [for] the agency to investigate” the claim under the standards of the CLJA, much

less “sufficient notice to enable the government to evaluate its exposure so far as liability is

concerned.” Ahmed, 30 F.3d at 517; Keene Corp., 700 F.2d at 842. It was impossible to ensure “the

agency addresse[d] the issues on the merits” under the standards set forth in the CLJA, where those

standards were not yet in existence at the time the prior claims were submitted. Woodford, 548 U.S.

at 90. Rather, as the claim denials make clear, the prior claims were denied for reasons applicable to

the Federal Tort Claims Act that expressly are no longer applicable under the CLJA, such as statute

of repose and immunity due to a “discretionary function exception” to liability. (See, e.g., Case No.

2:22-CV-22 (DE 24-3 at 3-4). Allowing plaintiffs’ prior claims to satisfy exhaustion requirements

of the CLJA would conflict directly with its substantive provisions, which materially have altered the

government’s liability exposure and basis for investigating the claims.

Plaintiffs argue that references to “actions” and “claims” in the CLJA and § 2675 of the

Federal Tort Claims Act show that Congress intended for claims that existed before enactment of the

CLJA to provide a basis for a cause of action under the CLJA. For example, plaintiffs point to the

“applicability” provision, which states the CLJA applies “only to a claim accruing before the date of

the enactment of this Act.” CLJA § 804(j). This is, however, beside the point. The fact that a claim

arising under the CLJA accrues prior its enactment does not mean that such a claim has been

exhausted properly in accordance with its terms. Accrual of a claim takes place by operation of law,

whereas exhaustion requires affirmative conduct on the part of the plaintiff to present such a claim to

the government. See Ahmed, 30 F.3d at 516.

Plaintiffs suggest that the facts alone alleged in their prior claims satisfy the exhaustion

requirements of the CLJA, citing case law applying the Federal Tort Claims Act. This argument

misses the mark for two reasons. First, under that case law, the degree to which facts alleged in a

prior claim satisfy exhaustion requirements depends upon whether they provide “cause [for] the

agency to investigate” the claim, Ahmed, 30 F.3d at 517, or sufficient notice to “enable the

government to evaluate its exposure so far as liability is concerned” or “clue a legally trained reader

to the theory’s applicability.” Keene Corp., 700 F.2d at 842; Glade, 692 F.3d at 722. Courts have

declined to extend exhaustion to claims arising under different legal theories arising out of a common

set of facts where that notice requirement is not satisfied. See, e.g., Ahmed, 30 F.3d at 517

(determining that personal injury claim was not exhausted, even though property damage claim was,

because “while the SF 95 [claim form] refers . . . to a potential personal injury claim, one was never

made and no sum certain was ever demanded”) (emphasis added); Glade, 692 F.3d at 721 (holding

that administrative claim for “battery by the therapist” does not exhaust a claim for “negligence by

her supervisors in failing to detect and prevent her sexual battery of him”); Allen v. United States,

517 F.2d 1328, 1329–30 (6th Cir. 1975) (holding that claim assertion personal injury for loss of

consortium did not exhaust “a claim for recovery of property damage which occurred in connection

with the accident”).

Second, this case does not involve consideration merely of whether plaintiffs’ prior claims

satisfy exhaustion requirements under the FTCA, but rather whether they satisfy exhaustion

requirements under a statute that was not in existence at the time of the prior claims. None of the

cases cited by plaintiffs involve exhaustion for a statute that was not in existence at the time of prior

claims. See, e.g., Glade, 692 F.3d at 721 (FTCA); Est. of Trentadue ex rel. Aguilar v. United States,

397 F.3d 840, 852 (10th Cir. 2005) (holding that “an intentional infliction of emotional distress claim”

sufficiently exhausted later court claims under the FTCA based upon “the government’s extreme acts

of misconduct” including mutilation of an inmate’s body); Brown v. United States, 838 F.2d 1157,

1161 (11th Cir. 1988) (holding that for purposes of exhaustion of an FTCA claim against the Veterans

Administration, a “new administrative claim is unnecessary for a wrongful death action [following a

personal injury action] because while a different legal injury is suffered, both actions are based on the

same injury in fact”).

In sum, cases cited by plaintiffs are inapposite because their prior administrative claims in this

instance could not have provided notice to the government of the applicability of a legal theory not

yet in existence. Where plaintiffs have failed to exhaust administrative remedies for their claims

under the CLJA, their claims must be dismissed for lack of subject matter jurisdiction. 2

CONCLUSION

Based on the foregoing, the court GRANTS the instant motions to dismiss. (Case Nos. 2:22-

cv-00022-FL (DE 21); 7:22-cv-00123-FL (DE 26); 7:22-cv-00128-FL (DE 14); 7:22-cv-00135-FL

(DE 23); 7:22-cv-00139-FL (DE 12)). Plaintiffs’ claims are DISMISSED WITHOUT PREJUDICE

for lack of subject matter jurisdiction due to failure to exhaust administrative remedies. The clerk is

DIRECTED to close these cases.

2 After briefing was completed on the instant motions, another judge of this court dismissed CLJA claims brought

by different plaintiffs, on similar grounds for failure to exhaust administrative remedies. See, e.g., Fancher v. United

States, ___ F.Supp.3d. ___, No. 5:22-CV-315-D, 2022 WL 17842896, at *9 (E.D.N.C. Dec. 20, 2022). While not binding

in the instant cases, those rulings provide additional persuasive authority for the determination here, where the arguments

raised by plaintiffs in those cases are similar to the arguments raised in the instant cases.

SO ORDERED, this the 5th day of January, 2023.

( Api W. FLANASAN

nited States District Judge

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