Petition for Writ of Certiorari — Susan McBrine, et al., Petitioners v. United States
Supreme Court briefDec 23, 2024
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No. 24-___
IN THE
Supreme Court of the United States
————
SUSAN MCBRINE AND DAVID L. PETRIE,
Petitioners,
v.
UNITED STATES,
Respondent.
————
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
————
PETITION FOR WRIT OF CERTIORARI
————
J. EDWARD BELL, III
BELL LEGAL GROUP, LLC
219 Ridge St.
Georgetown, SC 29440
(843) 546-2408
ZINA BASH
ASHLEY KELLER
KELLER POSTMAN LLC
111 Congress Ave., Ste. 500
Austin, TX 78701
(956) 345-9462
JOHN F. BASH
Counsel of Record
CHRISTOPHER G. MICHEL
NICHOLAS J. CALUDA
ALEX VAN DYKE
OWEN B. SMITHERMAN
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
1300 I St. NW, Ste. 900
Washington, D.C. 20005
(202) 538-8000
johnbash@quinnemanuel.com
Counsel for Petitioners
[Additional Counsel Listed On Inside Cover]
December 23, 2024
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
W. MICHAEL DOWLING
THE DOWLING FIRM PLLC
P.O. Box 27843
Raleigh, NC 27611
(919) 529-3351
JAMES A. ROBERTS, III
LEWIS & ROBERTS, PLLC
3700 Glenwood Ave.
Ste. 410
P.O. Box 17529
Raleigh, NC 27619
(919) 981-0191
ELIZABETH CABRASER
LIEFF CABRASER HEIMANN
& BERNSTEIN, LLP
275 Battery St., Ste. 2900
San Francisco, CA 94111
(415) 956-1000
ROBIN L. GREENWALD
WEITZ & LUXENBERG, P.C.
700 Broadway
New York, NY 10003
(212) 558-5802
MONA LISA WALLACE
WALLACE & GRAHAM, P.A.
525 North Main St.
Salisbury, NC 28144
(704) 633-5244
i
QUESTIONS PRESENTED
1. Whether plaintiffs who bring actions against
the United States under the Camp Lejeune Justice
Act of 2022 have the right to trial by jury.
2. Whether parties who have been denied a statutory right to trial by jury may categorically obtain
mandamus relief.
ii
RELATED PROCEEDINGS
United States District Court (E.D.N.C.):
In re Camp Lejeune Water Litigation, No. 7:23-cv897-RJ (E.D.N.C.) (Feb. 6, 2024) (striking jurytrial demand).*
United States Court of Appeals (4th Cir.):
In re Susan McBrine and David L. Petrie, No. 241542 (Aug. 23, 2024) (denying mandamus petition).
At present, 2,182 actions against the United States are pending in the Camp Lejeune Water Litigation master docket cited
above. The district court’s decision struck the jury-trial demand
in the plaintiffs’ master complaint, affecting all of the individual
actions. Accordingly, all 2,182 actions are directly related to this
case within the meaning of Rule 14.1(b)(iii).
*
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
RELATED PROCEEDINGS ...................................... ii
TABLE OF AUTHORITIES........................................ v
PETITION FOR WRIT OF CERTIORARI ................. 1
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 4
JURISDICTION .......................................................... 4
STATUTORY PROVISION INVOLVED.................... 5
STATEMENT .............................................................. 5
REASONS FOR GRANTING THE PETITION ....... 11
I.
THE QUESTION OF WHETHER CLJA
PLAINTIFFS HAVE THE RIGHT TO A
JURY TRIAL WARRANTS REVIEW ............ 12
A.
The CLJA Authorizes Jury Trials
Against The United States .................. 13
B.
The District Court’s Construction
Of The CLJA Conflicts With This
Court’s Precedents ............................... 24
C.
It Is Exceptionally Important
That This Court Resolve The
Jury-Trial Question Now ..................... 27
iv
II.
THE QUESTION OF WHETHER
MANDAMUS
RELIEF
IS
APPROPRIATE TO REMEDY THE
DENIAL OF A STATUTORY JURYTRIAL RIGHT WARRANTS REVIEW .......... 30
A.
Beacon Theatres Holds That
Mandamus Relief Is Categorically
Available To Vindicate A JuryTrial Right ............................................ 31
B.
Granting Review Would Allow
This Court To Resolve A ThreeWay Circuit Split ................................. 33
CONCLUSION .......................................................... 35
v
TABLE OF AUTHORITIES
Cases
Amgen Inc. v. Sanofi,
598 U.S. 594 (2023) .............................................. 30
Atl. Marine Const. Co. v. U.S. Dist. Ct.,
571 U.S. 49 (2013) ................................................ 33
Beacon Theatres, Inc. v. Westover,
359 U.S. 500 (1959) ......................... 3, 10, 11, 31-33
Brown v. Davenport,
596 U.S. 118 (2022) .............................................. 26
Bryant v. United States,
768 F.3d 1378 (11th Cir. 2014), cert.
denied, 577 U.S. 913 (2015) ................................... 7
Bufkin v. McDonough,
144 S. Ct. 1455 (2024) .......................................... 30
In re Camp Lejeune, N.C. Water
Contamination Litig.,
2012 WL 12869566 (N.D. Ga. May 11,
2012) ....................................................................... 7
In re Camp Lejeune, N.C. Water
Contamination Litig.,
763 F. Supp. 2d 1381 (J.P.M.L. Feb. 4,
2011) ................................................................... 6, 7
In re Camp Lejeune, N.C. Water
Contamination Litig.,
774 F. App’x 564 (11th Cir. 2019), cert.
denied, 140 S. Ct. 2825 (2020) ......................... 7, 22
vi
TABLE OF AUTHORITIES – continued
Page(s)
City of Monterey v. Del Monte Dunes at
Monterey, Ltd.,
526 U.S. 687 (1999) .............................................. 27
Cooper Industries, Inc. v. Aviall Services,
Inc.,
543 U.S. 157 (2004) ........................................ 20, 21
Corley v. United States,
556 U.S. 303 (2009) .............................................. 19
Dairy Queen, Inc. v. Wood,
369 U.S. 469 (1962) .................................. 30, 32, 33
Dep’t of Agri. Rural Develop. Rural Hous.
Serv. v. Kirtz,
601 U.S. 42 (2024) .................................... 13, 14, 25
Dimick v. Schiedt,
293 U.S. 474 (1935) ................................................ 1
Eldredge v. Gourley,
505 F.2d 769 (3d Cir. 1974) (per curiam) ............ 33
FAA v. Cooper,
566 U.S. 284 (2012) .............................................. 25
Feltner v. Columbia Pictures Television, Inc.,
523 U.S. 340 (1998) .............................................. 29
First Nat’l Bank of Waukesha v. Warren,
796 F.2d 999 (7th Cir. 1986) ................................ 34
Galloway v. United States,
319 U.S. 372 (1943) .................................. 15, 16, 29
Groff v. DeJoy,
600 U.S. 447 (2023) .............................................. 26
vii
TABLE OF AUTHORITIES – continued
Page(s)
Hacker v. United States,
16 F.2d 702 (5th Cir. 1927) .................................. 16
Kodar, LLC v. United States (FAA),
879 F. Supp. 2d 218 (D.R.I. 2012) ....................... 22
Lac du Flambeau Band of Lake Superior
Chippewa Indians v. Coughlin,
599 U.S. 382 (2023) .............................. 3, 13, 14, 25
Law v. United States,
266 U.S. 494 (1925) .............................................. 16
Lehman v. Nakshian,
453 U.S. 156 (1981)
....................... 3, 9, 11, 13-17, 21, 23, 25, 26, 29, 33
In re Lockheed Martin Corp.,
503 F.3d 351 (4th Cir. 2007) ................................ 32
Lorillard v. Pons,
434 U.S. 575 (1978) ........................................ 15, 29
Maldonado v. Flynn,
671 F.2d 729 (2d Cir. 1982) (per curiam) ............ 33
McElrath v. United States,
102 U.S. 426 (1880) .......................................... 9, 27
Merck & Co. v. Reynolds,
559 U.S. 633 (2010) .............................................. 18
Nielsen v. Preap,
586 U.S. 392 (2019) .............................................. 17
Nissan Motor Corp. in USA v. Burciaga,
982 F.2d 408 (10th Cir. 1992) (per
curiam) ................................................................. 34
viii
TABLE OF AUTHORITIES – continued
Page(s)
Oil States Energy Servs., LLC v. Greene’s
Energy Grp., LLC,
584 U.S. 325 (2018) .............................................. 29
Pence v. United States,
316 U.S. 332 (1942) .............................................. 16
In re Peterson,
253 U.S. 300 (1920) .............................................. 31
Roschen v. Ward,
279 U.S. 337 (1929) .............................................. 24
SEC v. Jarkesy,
144 S. Ct. 2117 (2024) ................................ 1, 27, 29
In re Skinner & Eddy Corp.,
265 U.S. 86 (1924) .......................................... 31, 32
TC Heartland LLC v. Kraft Foods Grp.
Brands LLC,
581 U.S. 258 (2017) .............................................. 33
TRW Inc. v. Andrews,
534 U.S. 19 (2001) .......................................... 18, 20
United States v. Denson,
603 F.2d 1143 (5th Cir. 1979) (en banc) .............. 33
Util. Air Regul. Gr. v. EPA,
573 U.S. 302 (2014) .............................................. 18
In re Vorpahl,
695 F.2d 318 (8th Cir. 1982) .......................... 33, 34
West Virginia v. EPA,
597 U.S. 697 (2022) .............................................. 24
ix
TABLE OF AUTHORITIES – continued
Page(s)
Wilmington Tr. v. U.S. Dist. Ct.,
934 F.2d 1026 (9th Cir. 1991) .................. 31, 33, 34
Work v. United States ex rel. McAlesterEdwards Co.,
262 U.S. 200 (1923) .............................................. 17
Ysleta Del Sur Pueblo v. Texas,
596 U.S. 685 (2022) .............................................. 18
In re Zweibon,
565 F.2d 742 (D.C. Cir. 1977) (per
curiam) ................................................................. 34
Constitution
U.S. Const. amend. II ................................................ 18
U.S. Const. amend. IV ............................................... 18
U.S. Const. amend. VII ........ 2, 9, 10, 15, 17-18, 27, 32
Statutes
28 U.S.C. § 1254(1) ...................................................... 5
28 U.S.C. § 1292(b) .................................................... 10
29 U.S.C. § 633a(c) .................................................... 14
42 U.S.C. § 2000e(j) ................................................... 26
42 U.S.C. § 9613(f)(1) ................................................ 21
Act of Apr. 5, 1941, 55 Stat. 123 ................................. 5
x
TABLE OF AUTHORITIES – continued
Page(s)
An Act to Amend the World War Veterans’
Act, 1924, ch. 553, 43 Stat. 1302 (Mar. 4,
1925) ..................................................................... 16
Camp Lejeune Justice Act, Pub. L. No. 117168, § 804, 136 Stat. 1759, 1802-04 (Aug.
10, 2022) (codified 28 U.S.C. ch. 171
prec. note): ...................................................... 2, 5, 7
§ 804(b) .............................................................. 5, 7
§ 804(c) .............................................................. 7, 8
§ 804(d) ....................................2, 5, 8-10, 12, 17-23
§ 804(e) .................................................................. 7
§ 804(h) ............................................................ 8, 22
§ 804(g) ............................................................ 8, 22
§ 804(i) ................................................................... 8
Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2402, 2671 et seq.: ................................ 1
28 U.S.C. § 1346 .................................................... 1
28 U.S.C. § 1346(b) (1976) .................................. 14
28 U.S.C. § 1491 (1976) ...................................... 15
28 U.S.C. § 2402 ................................ 1, 2, 8, 20, 22
28 U.S.C. § 2402 (1976) ...................................... 14
28 U.S.C. § 2671 .................................................... 1
28 U.S.C. § 2674 .................................................... 8
28 U.S.C. § 2675 .............................................. 8, 21
xi
TABLE OF AUTHORITIES – continued
Page(s)
28 U.S.C. § 2675(a) ................................... 8, 21, 22
28 U.S.C. § 2680(j) ................................................ 8
Honoring our PACT Act, Pub. L. No. 117168, 136 Stat. 1759 (Aug. 10, 2022) ...................... 7
National Defense Authorization Act for
Fiscal Year 2008, Pub. L. No. 110-181,
122 Stat. 3 .............................................................. 6
N.C. Gen. Stat. § 1-52(16) ........................................... 7
World War Veterans’ Act, 1924, ch. 320, 43
Stat. 607 (June 7, 1924) ....................................... 16
Rules
Fed. R. Civ. P. 38(a)................................................... 23
Fed. R. Civ. P. 39(c)(1)............................................... 29
Other Authorities
16 Edward H. Cooper, FEDERAL PRACTICE
AND PROCEDURE § 3935.1 (3d ed. June
2024) ..................................................................... 32
3 W. Blackstone, COMMENTARIES ON THE
LAWS OF ENGLAND 379 (8th ed. 1778) ................. 27
xii
TABLE OF AUTHORITIES – continued
Page(s)
Agency for Toxic Substances and Disease
Registry, ASSESSMENT OF THE EVIDENCE
FOR THE DRINKING WATER
CONTAMINANTS AT CAMP LEJEUNE AND
SPECIFIC CANCERS AND OTHER DISEASES
(Jan. 13, 2017),
https://tinyurl.com/s6g2b1h4 ............................. 5, 6
Anna Schecter, Cynthia McFadden, and
Melissa Chan, Their babies died when
Camp Lejeune’s water was poisoned. But
justice has been hard to find, NBC NEWS
(Sep. 18, 2023),
https://tinyurl.com/rhtuf7s .................................... 6
Antonin Scalia & Bryan A. Garner,
READING LAW: THE INTERPRETATION OF
LEGAL TEXTS (2012) ............................................. 19
Brianna Keilar & Margaret Given, Camp
Lejeune Water Contamination Cases
Increasingly Becoming Wrongful Death
Claims as Lawsuits Proceed at a Crawl,
CNN (Aug. 23, 2023)
https://tinyurl.com/dhsne4g ........................... 29, 30
Diana Novak Jones, Camp Lejeune claims
over contaminated water exceed 500,000,
REUTERS (Aug. 21, 2024),
https://tinyurl.com/p5s5xc1 ................................... 8
H.R. Rep. No. 1518, 68th Cong., 2d Sess. 2 .............. 16
xiii
TABLE OF AUTHORITIES – continued
Page(s)
Perchloroethylene (PCE); Regulation Under
the Toxic Substances Control Act
(TSCA),
89 Fed. Reg. 103560 (Dec. 18, 2024) ..................... 6
Trichloroethylene (TCE); Regulation Under
the Toxic Substances Control Act
(TSCA),
89 Fed. Reg. 102568 (Dec. 17, 2024) ..................... 6
1
PETITION FOR WRIT OF CERTIORARI
Petitioners Susan McBrine and David L. Petrie respectfully petition for a writ of certiorari to review the
order of the United States Court of Appeals for the
Fourth Circuit denying their petition for a writ of
mandamus.
INTRODUCTION
This petition presents a question of overwhelming
legal and practical importance: whether the decision
below deprives a half million Americans of their right
to trial by jury—a right that “‘occupies so firm a place
in our history and jurisprudence that any seeming
curtailment of the right’ has always been and ‘should
be scrutinized with the utmost care.’” SEC v. Jarkesy,
144 S. Ct. 2117, 2128 (2024) (quoting Dimick v.
Schiedt, 293 U.S. 474, 486 (1935)).
For over 30 years, the United States supplied water poisoned with toxic industrial chemicals to servicemembers and civilians who lived and worked at
Marine Corps Base Camp Lejeune in North Carolina.
As a result, countless Marines and other victims contracted cancer, Parkinson’s disease, and other deadly
conditions. The government went on to cover up its
actions and failures for decades.
In the late 2000s, the government finally began to
come clean about the scope of the Camp Lejeune disaster. Victims promptly filed administrative claims
and legal actions under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b), 2402, 2671 et seq. But
the Department of Justice successfully invoked North
Carolina’s statute of repose to avoid all liability for the
government’s decades of wrongdoing. As a result,
2
thousands upon thousands of victims were left without recourse.
In 2022, Congress finally sought to remedy that injustice by enacting the Camp Lejeune Justice Act
(CLJA). 28 U.S.C. ch. 171 prec. note. The CLJA creates a new cause of action that enables Camp Lejeune
victims to secure monetary relief from the federal government. As relevant here, Subsection (d) of the
CLJA vests exclusive jurisdiction over CLJA claims in
the Eastern District of North Carolina and provides
that “[n]othing in this subsection shall impair the
right of any party to a trial by jury.”
There is no mystery about what that sentence
means: Congress expected CLJA plaintiffs to enjoy
the right to try their claims to juries. The sentence
could have no purpose other than to confirm that understanding. And the provision’s legal context makes
its meaning especially clear. For example, the provision’s syntax—which essentially preserves a right
that is assumed to exist—echoes the language of the
Seventh Amendment and other provisions of the Bill
of Rights. Further, while the CLJA incorporates
many features of the FTCA, Congress declined to incorporate the FTCA’s bar on jury trials, 28 U.S.C.
§ 2402. And even for skeptics of legislative history,
the record here is particularly powerful: The Department of Justice objected to the CLJA’s text specifically
because it authorized jury trials, but Congress went
ahead and enacted the law unchanged.
Yet when CLJA plaintiffs began filing suit in the
Eastern District of North Carolina, the district court
held that the statutory language is not sufficiently
clear to authorize jury trials. Petitioners then sought
3
mandamus relief to restore their jury-trial rights—a
procedure that this Court approved in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 511 (1959)—but
the United States Court of Appeals for the Fourth Circuit denied their petition without explanation.
For a number of reasons, that denial warrants this
Court’s immediate review.
First, to the extent that the Fourth Circuit embraced the district court’s interpretation of the CLJA,
it misconstrued this Court’s decision in Lehman v.
Nakshian, 453 U.S. 156 (1981), to require a particular
declarative formulation for a statute to authorize jury
trials against the United States—a sort of “magic
words” test that this Court has repeatedly rejected for
sovereign-immunity waivers. Under this Court’s
standard—whether Congress’s intent is clearly discernible after exhausting all the “tools of statutory interpretation”—the CLJA authorizes jury trials. Lac
du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 388 (2023).
Second, to the extent that the Fourth Circuit concluded that a mandamus petition is not an appropriate vehicle to challenge the denial of a statutory right
to a jury trial, as the government urged, that holding
would not only conflict with Beacon Theatres but
would also deepen a preexisting 7-1 circuit conflict on
the question.
Third, few questions of statutory interpretation
have such immediate and overwhelming practical importance. A half million victims of the Camp Lejeune
water contamination have filed administrative claims
with the Navy, a prerequisite to filing suit under the
CLJA. Thousands of judicial actions are already
4
pending in the district court. A correction of the district court’s fundamental error in construing the statute years from now would require reversing numerous
bench verdicts. Postponing this Court’s definitive resolution of the jury-trial question therefore risks an
enormous and entirely unnecessary waste of party
and judicial resources. That question, moreover, is a
pure issue of statutory interpretation, and no circuit
conflict is possible because the CLJA channels all litigation to the Eastern District of North Carolina.
Finally, the CLJA is no ordinary statute. It aims
to redress the United States government’s own horrific mistreatment of those who devoted their lives to
keeping us safe. Many of the victims are elderly and
ailing. They deserve to have their claims heard by
their fellow citizens, as Congress prescribed.
This Court should grant review.
OPINIONS BELOW
The order of the Fourth Circuit denying mandamus relief (App. 1a) is not reported. The opinion of
the district court striking petitioners’ jury-trial demand (App. 10a-49a) is reported at 715 F. Supp. 3d
761. The district court’s order denying petitioners’
motion to certify the jury-trial question for interlocutory appellate review (App. 2a-9a) is not reported but
is available at 2024 WL 2198651.
JURISDICTION
The decision of the Fourth Circuit denying mandamus relief was entered on August 23, 2024. App. 1a.
The decision of the Fourth Circuit denying rehearing
was entered on October 4, 2024. App. 50a. This Court
has jurisdiction under 28 U.S.C. § 1254(1).
5
STATUTORY PROVISION INVOLVED
Subsection (d) of the CLJA (28 U.S.C. ch. 171 prec.
note) provides:
The United States District Court for the
Eastern District of North Carolina shall
have exclusive jurisdiction over any action filed under subsection (b), and shall
be the exclusive venue for such an action.
Nothing in this subsection shall impair
the right of any party to a trial by jury.
STATEMENT
1. In 1941, Congress authorized the construction
of a “Marine Corps training area” on the east coast of
the United States. Act of Apr. 5, 1941, tit. II, 55 Stat.
123, 128. The government then built Marine Corps
Base Camp Lejeune in Onslow County, North Carolina. App. 57a, 63a. It has long been the largest Marine Corps base on the east coast of the United States.
From 1953 to 1987—over 30 years—various aboveground activities contaminated Camp Lejeune’s
water-distribution systems with industrial chemicals.
App. 63a-80a. During that time, as many as one million people were exposed to the water at Camp
Lejeune. App. 58a. According to the federal Agency
for Toxic Substances and Disease Registry (ATSDR),
the water contained concentrations far exceeding—in
some cases by multiple orders of magnitude—the
maximum acceptable levels of chemicals like trichloroethylene, perchloroethylene, and benzene. See
ATSDR, ASSESSMENT OF THE EVIDENCE FOR THE
DRINKING WATER CONTAMINANTS AT CAMP LEJEUNE
6
AND SPECIFIC CANCERS AND OTHER DISEASES (Jan. 13,
2017) (“ATSDR Assessment”).1
That decades-long contamination caused Camp
Lejeune’s residents and workers to contract many
types of cancers and other deadly diseases at abnormally high rates—including leukemia, non-Hodgkin’s
lymphoma, kidney disease, and Parkinson’s disease.
See ATSDR Assessment 13-14. So many infants at the
base died either in the womb or shortly after birth that
a section of Camp Lejeune’s cemetery is known as
“Baby Heaven.” See Anna Schecter, Cynthia McFadden, and Melissa Chan, Their babies died when Camp
Lejeune’s water was poisoned. But justice has been
hard to find, NBC NEWS (Sep. 18, 2023).2
Even after the contamination was finally contained, the government concealed what had happened
for years. It was not until 2008—in response to an act
of Congress—that the government began to fully identify and notify affected servicemembers and other victims. See National Defense Authorization Act for
Fiscal Year 2008, Pub. L. No. 110-181, § 315, 122 Stat.
3, 56-57.
As a result, more than a thousand victims sued the
government under the FTCA. The Judicial Panel on
Multidistrict Litigation consolidated the cases in the
https://tinyurl.com/s6g2b1h4; see also Trichloroethylene
(TCE); Regulation Under the Toxic Substances Control Act
(TSCA), 89 Fed. Reg. 102568 (Dec. 17, 2024); Perchloroethylene
(PCE); Regulation Under the Toxic Substances Control Act
(TSCA), 89 Fed. Reg. 103560 (Dec. 18, 2024) (generally banning
the manufacture and use of trichloroethylene and perchloroethylene).
1
2
https://tinyurl.com/rhtuf7s.
7
Northern District of Georgia. In re Camp Lejeune,
N.C. Water Contamination Litig., 763 F. Supp. 2d
1381 (J.P.M.L. Feb. 4, 2011). The government moved
to dismiss the suits under, inter alia, North Carolina’s
statute of repose. See N.C. Gen. Stat. § 1-52(16); In re
Camp Lejeune, N.C. Water Contamination Litig., 2012
WL 12869566, at *1 (N.D. Ga. May 11, 2012). The
Eleventh Circuit ultimately agreed that the statute of
repose barred the claims. Bryant v. United States, 768
F.3d 1378, 1385 (11th Cir. 2014), cert. denied, 577 U.S.
913 (2015); In re Camp Lejeune, N.C. Water Contamination Litig., 774 F. App’x 564, 568 (11th Cir. 2019),
cert. denied, 140 S. Ct. 2825 (2020). Camp Lejeune’s
victims were thus left without legal recourse.
2. In 2022, Congress enacted and President Biden
signed the Camp Lejeune Justice Act as Section 804
of the Honoring our PACT Act, Pub. L. No. 117-168,
136 Stat. 1759, 1802-04 (Aug. 10, 2022) (codified at 28
U.S.C. ch. 171 prec. note). As the title reflects, Congress designed the CLJA to remedy the injustice of
denying compensation to the victims of the government’s decades-long failure to ensure safe water at
Camp Lejeune.
The CLJA authorizes any person who was exposed
to the water at Camp Lejeune for at least 30 days between August 1953 and December 1987 to obtain
monetary relief from the United States for harm
caused by that exposure. CLJA § 804(b), (e). It defines causation broadly, requiring only proof of “one or
more relationships between the water at Camp
Lejeune and the harm,” which a plaintiff can establish
through evidence “sufficient to conclude that a causal
relationship is at least as likely as not.” CLJA
§ 804(c).
8
As relevant here, Subsection (d) is titled “Exclusive
Jurisdiction and Venue.” Its first sentence vests the
United States District Court for the Eastern District
of North Carolina with “exclusive jurisdiction over
any [CLJA] action” and makes that court “the exclusive venue for such an action.” The second sentence
then provides: “Nothing in this subsection shall impair the right of any party to a trial by jury.”
Although Congress chose to enact a new cause of
action rather than authorize Camp Lejeune victims to
sue under the FTCA, the CLJA does replicate certain
features of the FTCA. Subsection (h), for example, incorporates the FTCA’s requirement that plaintiffs administratively exhaust their claims before filing suit,
28 U.S.C. § 2675. Subsection (g) bars punitive damages, just as the FTCA does, 28 U.S.C. § 2674. And
Subsection (i) establishes a combatant-activities exception that mirrors an exception in the FTCA, 28
U.S.C. § 2680(j). But consistent with Subsection (d)’s
preservation of the right to trial by jury, the CLJA
does not incorporate the FTCA’s bar on jury trials, 28
U.S.C. § 2402.
3. Immediately after the CLJA took effect, victims
of Camp Lejeune’s toxic water started filing administrative claims with the Navy—with a total of over
500,000 claims filed to date. See Diana Novak Jones,
Camp Lejeune claims over contaminated water exceed
500,000, REUTERS (Aug. 21, 2024).3 After the Navy
failed to act on their claims within six months, effecting a constructive denial, see 28 U.S.C. § 2675(a),
thousands of plaintiffs filed suit in the Eastern District of North Carolina. The district court appointed
3
https://tinyurl.com/p5s5xc1.
9
several attorneys to a leadership group charged with
litigating common issues for all CLJA plaintiffs.4 The
leadership group then filed a master complaint demanding a jury trial. App. 57a-112a. The government
moved to strike the demand on the grounds that plaintiffs have no Seventh Amendment right to a jury trial
against the United States, see McElrath v. United
States, 102 U.S. 426, 440 (1880), and the CLJA does
not grant plaintiffs the right to trial by jury, despite
its express preservation of that right in Subsection (d),
App. 10a, 24a-25a.
In an opinion joined by the Eastern District’s four
active judges, the district court granted the government’s motion. App. 10a-49a. The court construed
this Court’s decision in Lehman, supra, to mean that
causes of action against the United States must be
tried to the bench unless Congress “unequivocally, affirmatively, and unambiguously grant[s] the right to
a trial by jury.” App. 23a. It then held that the CLJA
does not supply the requisite “clarity” to authorize
jury trials. App. 44a. The court held that such clarity
could have been achieved by a provision entitled “Jury
Trials In Actions Against The United States” that
stated: “Any action against the United States under
[the CLJA] shall, at the request of either party to such
action, be tried by the court with a jury.” App. 43a44a.
In an effort to give the second sentence of Subsection (d) some function, the district court speculated
that Congress could have intended to preserve the
The leadership group has established a website
(www.camplejeunecourtinfo.com) to provide victims and the public with updates on CLJA litigation.
4
10
right to a jury trial for hypothetical third-party defendants impleaded by the United States or for CLJA
claimants whom the United States countersues for
fraud, even though the CLJA does not create or otherwise apply to other causes of action and even though
the Seventh Amendment guarantees trial by jury for
damages claims against private parties. See App. 30a34a. Based on that assigned function, the district
court determined that its interpretation did not “render[] the second sentence of subsection 804(d) superfluous.” App. 34a.
4. Petitioners are two CLJA plaintiffs. They
moved to certify the district court’s order for interlocutory appeal under 28 U.S.C. § 1292(b). The district
court denied the motion. App. 2a. The court stated
that if a plaintiff is “unhappy with the result of the
bench trial,” he or she can “appeal once the court enters final judgment.” App. 7a. The court added that
it intends to resolve “countless cases” through bench
trials. Ibid.
Petitioners then asked the Fourth Circuit to issue
a writ of mandamus directing the district court to vacate its order striking the jury-trial demand—the procedure that this Court has approved for challenging
the denial of a jury-trial right. See, e.g., Beacon Theatres, 359 U.S. at 511. The government opposed mandamus relief on the ground that the CLJA does not
authorize jury trials. Response in Opposition, In re
McBrine, No. 24-1542 (4th Cir. July 8, 2024), ECF 11
at 6-21 (“Gov’t Resp.”). The government argued in the
alternative that mandamus relief is not categorically
available to remedy the denial of a statutory (as opposed to constitutional) jury-trial right and that the
ordinary mandamus factors are not met here,
11
primarily because petitioners could seek review of the
order striking the jury-trial demand through an ordinary appeal after a bench verdict. Id. at 21-23.
The Fourth Circuit denied mandamus relief without opinion. App. 1a. It then denied petitioners’ request for panel rehearing or rehearing en banc. App.
50a.
REASONS FOR GRANTING THE PETITION
This Court should grant review and reverse the denial of petitioners’ mandamus petition. The unexplained decision of the court of appeals rested either
on the conclusion that the CLJA does not authorize
jury trials or on the view that mandamus relief is not
categorically available to remedy the erroneous denial
of a statutory jury-trial right. Both questions warrant
this Court’s immediate review.
With respect to the proper interpretation of the
CLJA’s jury-trial provision, the district court’s ruling
rested on an erroneous understanding of this Court’s
decision in Lehman, supra, to effectively require a
particular declarative formulation even if the traditional tools of statutory interpretation point decisively
in favor of jury trials. Only this Court can definitively
clarify the Lehman standard. To the extent that the
Fourth Circuit instead rested its decision on the view
that mandamus relief is not categorically available to
remedy the denial of the CLJA jury-trial right, that
would conflict with this Court’s holding in Beacon
Theatres, supra, and deepen a lopsided circuit conflict.
That procedural question thus independently merits
this Court’s review, and it could not be presented in a
later appeal from a final judgment.
12
Even apart from those considerations, this case
presents the rare statutory-interpretation issue in
which its sheer practical importance alone warrants a
grant of certiorari. In enacting the CLJA, Congress
entrusted the Judiciary with providing redress for the
numerous victims of decades of government wrongdoing at Camp Lejeune—nearly a million servicemembers and civilians who spent time at the base between
the mid-1950s and the late 1980s, drinking and bathing in water contaminated by industrial chemicals.
Whether Congress intended those claims to be resolved by judges or juries is the most fundamental and
significant question about the regime that Congress
instituted. That is the sort of question that should be
answered by the Nation’s highest court. And it should
be answered now, not after years of bench trials, especially given how many elderly and seriously ill people
have brought suit under the statute. Those victims—
many of whom were willing to make the ultimate sacrifice for our country—should have the opportunity to
see justice in their lifetimes.
I. THE QUESTION OF WHETHER CLJA
PLAINTIFFS HAVE THE RIGHT TO A JURY
TRIAL WARRANTS REVIEW
The CLJA secures the right to trial by jury for actions brought against the United States under the
statute. The second sentence of Subsection (d) provides that “[n]othing in this subsection shall impair
the right of any party to a trial by jury.” The only sensible understanding of that provision is that Congress
expected CLJA plaintiffs to enjoy the right to a jury
trial. That conclusion follows from a host of textual
and contextual considerations. See pp. 17-24, infra.
But at a more basic level, it is just common sense:
13
Why would Congress write an entire sentence preserving the right to trial by jury if it did not intend
CLJA plaintiffs to have that right? It wouldn’t.
Yet the district court rejected that straightforward
conclusion. To the extent the court of appeals embraced that holding, the decision below contravened
this Court’s settled framework for determining
whether a statute waives the United States’ sovereign
immunity and rested on a misreading of Lehman, supra. Especially given that no other court of appeals
will have the opportunity to construe the statute in
light of the CLJA’s exclusive-venue provision, this
Court’s review is warranted.
A. The CLJA Authorizes Jury Trials Against
The United States
The district court misapplied this Court’s precedents and reached an erroneous interpretation of the
CLJA’s jury-trial provision.
1. A federal law waives the United States’ immunity from suit when Congress makes its intent to do so
“unmistakably clear in the language of the statute.”
Lac du Flambeau, 599 U.S. at 387 (quotation omitted).
But that “clear-statement rule is not a magic-words
requirement,” and waiving immunity does not require
Congress to “state its intent in any particular way.”
Id. at 388, 394 (quotation omitted). Rather, the standard “is simply whether, upon applying traditional
tools of statutory interpretation,” Congress’s intent “is
clearly discernable from the statute itself”—“regardless of whether [Congress] articulated its intent in the
most straightforward way.” Id. at 388, 394 (quotation
omitted); accord Dep’t of Agri. Rural Develop. Rural
Hous. Serv. v. Kirtz, 601 U.S. 42, 51-52 (2024) (courts
14
evaluate “the clarity of each statute * * * on its own
terms” (quotation omitted)).
The same approach applies to the sub-question of
whether Congress intended to authorize jury trials in
suits against the United States. This Court has explained that because the United States’ submission to
jury trials “is one of the terms of [the government’s]
consent to be sued,” it too must be “unequivocally expressed,” just like “a waiver of immunity itself.” Lehman, 453 U.S. at 160 (quotation omitted). So as with
sovereign-immunity waivers, no particular formulation is needed to authorize jury trials, and courts must
use the “traditional tools of statutory interpretation,”
not look for magic words, to ascertain whether Congress “unambiguously expressed the requisite intent.”
Lac du Flambeau, 599 U.S. at 388 (quotation omitted).
The Court applied that approach in Lehman, the
Court’s most recent decision evaluating whether a
statute authorizes jury trials against the United
States. There, the Court held that amendments to the
Age Discrimination in Employment Act of 1967
(ADEA) did not authorize jury trials merely by granting federal employees the right to bring suit against
the United States for “such legal or equitable relief as
will effectuate the purposes of this Act.” Lehman, 453
U.S. at 157-58, 167-69 (quoting 29 U.S.C. § 633a(c)).
To reach that conclusion, the Court employed the
full panoply of traditional interpretive tools. The
Court began by examining statutes that had been construed not to authorize jury trials against the United
States. Lehman, 453 U.S. at 161. Each of those provisions either prohibited jury trials, e.g., 28 U.S.C.
§§ 1346(b), 2402 (1976), or, like the ADEA provision,
15
said nothing at all about jury trials, e.g., 28 U.S.C.
§ 1491 (1976).
The Court then examined the ADEA’s structure,
explaining that a different ADEA provision “expressly
provide[d] for jury trials” in suits against state and local governments. Lehman, 453 U.S. at 162. That provision demonstrated “that [Congress] knew how to
provide a statutory right to a jury trial when it wished
to do so elsewhere in the very legislation cited.” Id.
(quotation omitted). The Court also looked to statutory history, noting that when Congress amended the
ADEA to add a jury-trial right to the state-and-localgovernments provision, it “declined an opportunity to
extend a right to trial by jury to federal employee
plaintiffs.” Id. at 167-68; see id. at 162 n.10.
Lehman then went on to consider the statute’s
broader context. The Court distinguished its prior decision in Lorillard v. Pons, 434 U.S. 575 (1978), which
had inferred a jury-trial right from the phrase “legal
or equitable relief” in an earlier version of another
ADEA provision, in part on the ground that the other
provision had “incorporate[d] the enforcement scheme
of the Fair Labor Standards Act,” which included the
“practice of making jury trials available.” Lehman,
453 U.S. at 162-63; see id. at 166-68.
In addition, Lehman pointed to an earlier decision,
Galloway v. United States, 319 U.S. 372 (1943), as an
example of a case in which Congress had clearly indicated its intent to authorize jury trials. See Lehman,
453 U.S. at 160, 162. In Galloway, the Court held that
a World War I-era statute authorizing compensation
for injured servicemembers “ha[d] made [the Seventh
Amendment] applicable” by providing for jury trials
16
against the federal government. 319 U.S. at 388-89 &
n.18. Importantly, that congressional choice was not
explicit in the statute; it was instead an implication
from the statute’s amendment history—in particular,
Congress’s decision to eliminate a cross-reference to
the Tucker Act’s bar on jury trials.5 That implication
from the statute’s history sufficed to unequivocally express that the United States consented to jury trials,
as the Court had also held in its earlier decision in
Pence v. United States, 316 U.S. 332, 334 n.1 (1942).
See Galloway, 319 U.S. at 389 n.18.
Lehman’s analysis thus underscores that a careful
examination of statutory text, structure, history, and
The original version of the Galloway statute had been construed to authorize jury trials, despite the fact that it “did not
explicitly make [the actions] triable by jury.” Galloway, 319 U.S.
at 389 n.18 (citing Law v. United States, 266 U.S. 494, 496
(1925)). Congress had then amended the statute to generally require that “the ‘procedure in such suits shall . . . be the same as
that provided for suits’ under the Tucker Act,” which “were tried
without a jury.” Id. (quoting World War Veterans’ Act, 1924, ch.
320, § 19, 43 Stat. 607, 613 (June 7, 1924)). The following year,
however, Congress amended the statute again “with the intention to ‘give the claimant the right to a jury trial.’” Id. (quoting
H.R. Rep. No. 1518, 68th Cong., 2d Sess. 2). But that last amendment did not say a word about jury trials. Rather, it provided
that only specific Tucker Act sections, not including its bar on
jury trials, would apply to suits under the statute. See An Act to
Amend the World War Veterans’ Act, 1924, ch. 553, § 2, 43 Stat.
1302, 1303 (Mar. 4, 1925). That was enough to express clear congressional intent. See Galloway, 319 U.S. at 389 n.18; see also
Hacker v. United States, 16 F.2d 702, 704 (5th Cir. 1927) (cited
in Galloway, 319 U.S. at 389 n.18) (holding that “[t]he conclusion
is irresistible * * * that by omitting section 2 of [the Tucker Act]”
in the 1925 amendment, “Congress intended to give litigants the
right of trial by jury as in ordinary cases”).
5
17
context is necessary to discern whether Congress has
authorized jury trials.
2. Under that approach, the conclusion here is
straightforward. Every tool of statutory construction
shows that Subsection (d) of the CLJA grants plaintiffs the right to a jury trial.
a. Text. Subsection (d) states that the vesting of
exclusive jurisdiction over CLJA actions in the Eastern District of North Carolina does not deprive any
party of the right to trial by jury. That sentence unmistakably reflects Congress’s expectation that CLJA
plaintiffs could elect to try their cases to juries. It
makes no sense to preserve something that doesn’t exist.
Subsection (d), moreover, expressly preserves “the
right” to a jury trial—an unambiguous indication of
Congress’s intent. CLJA § 804(d) (emphasis added).
The “use of the definite article” connotes that the noun
that follows—here, “right”—is “specifically provided
for.” Nielsen v. Preap, 586 U.S. 392, 408 (2019) (quoting Work v. United States ex rel. McAlester-Edwards
Co., 262 U.S. 200, 208 (1923)). Subsection (d) thus refers to a right that actually exists, not merely the abstract possibility that a jury-trial right might exist.
And it is nothing like the statutes that Lehman classified as insufficiently clear, all of which either barred
jury trials or did not mention jury trials at all.
Further, the sentence’s syntax—providing that
“[n]othing in this subsection shall impair” the jurytrial right—parallels the Seventh Amendment and
other provisions of the Bill of Rights insofar as it preserves, rather than self-consciously creates, the right.
The Seventh Amendment, for example, states that
18
“[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved.” U.S. Const. amend. VII (emphasis added); see U.S. Const. amends. II, IV. Congress likely drew on this traditional formulation in
drafting Subsection (d)’s jury-trial sentence addressing the same subject matter.
It is conceivable that Congress operated under the
misimpression that courts presumptively construe
statutes like the CLJA to authorize jury trials against
the United States and sought to clarify that vesting
exclusive jurisdiction in the Eastern District of North
Carolina did not override that presumption. But so
what? Although courts ordinarily assume that Congress is aware of judicial presumptions, that rule is
not absolute, cf. Merck & Co. v. Reynolds, 559 U.S.
633, 648 (2010), and the ultimate objective of this
Court’s framework for analyzing sovereign-immunity
waivers is to discern clear congressional intent. Even
if Subsection (d) of the CLJA “is far from a chef d’oeuvre of legislative draftsmanship,” Util. Air Regul. Gr.
v. EPA, 573 U.S. 302, 320 (2014), it is obvious what
Congress intended.
b. Canons. Courts “construe Congress’s work so
that effect is given to all provisions.” Ysleta Del Sur
Pueblo v. Texas, 596 U.S. 685, 698-99 (2022) (quotation omitted). It is thus “a cardinal principle of statutory construction that a statute ought, upon the
whole, to be so construed that, if it can be prevented,
no clause, sentence, or word shall be superfluous, void,
or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19,
31 (2001) (quotation omitted).
19
The district court disregarded that bedrock principle by leaving the second sentence of Subsection (d)
with no effect—essentially smearing white-out across
a line of the Statutes at Large. The problem is not
mere surplusage, i.e., reading two provisions to do the
same thing, as the district court seemed to think. Rather, the court read an entire sentence out of the statute—rendering it “void” or “inoperative,” Corley v.
United States, 556 U.S. 303, 314 (2009) (quotation
omitted), which courts go to extraordinary lengths to
prevent, see Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 175
(2012).
The district court sought to ascribe some function
to Subsection (d) by hypothesizing that Congress
might have intended to preserve the right to a jury
trial for a fraud counterclaim asserted by the government against a CLJA plaintiff or a third-party complaint that the government might bring against
another party responsible for the contaminated water.
App. 30a-34a. But for a number of reasons, those alleged functions are too implausible to salvage the district court’s interpretation.
For one, nothing about Subsection (d)’s first sentence granting exclusive jurisdiction to the Eastern
District of North Carolina could remotely “impair” any
preexisting constitutional right to jury trials that
CLJA plaintiffs or third parties would have as defendants for claims that the government might bring
against them.6 It is not credible, therefore, that
Of course, for any hypothetical action by the government in
which the private defendant would lack the right to trial by jury,
6
20
Congress would have included the second sentence of
Subsection (d) to guard against that interpretation of
the first sentence. Indeed, the FTCA has long barred
jury trials, 28 U.S.C. § 2402, yet Congress has never
seen the need to clarify that the bar does not apply to
claims by the government against private parties under different statutes or common-law doctrines.
In addition, the notion that Congress might have
had in mind third-party complaints by the United
States against other entities or persons responsible
for the water contamination is fanciful. The statutes
of limitations and repose on such claims expired decades ago. Although the district court speculated that
a third party might forfeit such a defense by failing to
assert it, App. 30a-31a, the remote possibility of egregious attorney malpractice does not provide a realistic
account of congressional intent. At best, that interpretation would render the jury-trial provision “insignificant” in the extreme. TRW, 534 U.S. at 31
(quotation omitted).
The district court also posited that Congress might
in the future amend the law to extend applicable statutes of limitations. App. 31a. But no principle of statutory interpretation allows a court to assign meaning
to a provision based on theoretical statutory amendments.
The district court relied on this Court’s decision in
Cooper Industries, Inc. v. Aviall Services, Inc., 543
U.S. 157 (2004), see App. 25a-27a, but if anything,
that decision shows why the court erred. There, this
the district court’s interpretation also would leave the second
sentence with no practical effect.
21
Court held that a statutory provision stating that
“‘[n]othing in this subsection shall diminish the right
of any person to bring an action for contribution’ * * *
does not itself establish a cause of action” for contribution. Cooper Indus., 543 U.S. at 166-67 (quoting 42
U.S.C. § 9613(f)(1)). But the Court’s reasoning was
that construing the provision to create a right to contribution would “violate the settled rule that [courts]
must, if possible, construe a statute to give every word
some operative effect” because it would render meaningless a sentence in the same statute that already established a federal cause of action for contribution in
certain circumstances. Ibid. Here, the opposite is
true: The second sentence of Subsection (d) is meaningless if it is not construed to guarantee jury trials.
In addition, a right to contribution differs materially
from a right to a jury trial. Independent actions for
contribution exist under state common law, whereas
there is no common-law or constitutional right to a
jury trial in suits against the United States under existing precedent. Lehman, 453 U.S. at 160.
Finally, to support the function that it assigned to
Subsection (d)’s second sentence, the district court adverted to the CLJA’s incorporation of the FTCA’s
administrative-exhaustion requirement, 28 U.S.C.
§ 2675. See App. 33a. The last sentence of Section
2675(a) says that the exhaustion requirement does
“not apply” to third-party complaints, cross-claims, or
counterclaims. That language, the district court believed, showed that “the CLJA textually contemplates
third-party complaints and counterclaims.” App. 33a.
The court’s belief, however, reflected a misreading
of Section 2675(a)’s exception, which addresses thirdparty complaints, cross-claims, and counterclaims
22
against the government by private plaintiffs otherwise
subject to the exhaustion requirement. See Kodar,
LLC v. United States (FAA), 879 F. Supp. 2d 218, 22526 (D.R.I. 2012). The exception could not refer to
claims that the government might file against a plaintiff or a third party, because the government is never
required to administratively exhaust its own claims.
See 28 U.S.C. § 2675(a) (imposing exhaustion requirement only for “a claim against the United States”).
c. Structure. Two features of the CLJA’s structure confirm its plain meaning.
The first is the CLJA’s relationship to the FTCA.
Congress could have revived the Camp Lejeune FTCA
suits simply by abrogating the defenses that the government had asserted in the earlier litigation. See In
re Camp Lejeune, 774 F. App’x at 566. But Congress
chose a different approach. It created a new cause of
action with less demanding substantive standards
and different procedural requirements. When Congress wanted to incorporate provisions of the FTCA,
such as the bar on punitive damages and the exhaustion requirement, it did so expressly. See CLJA
§ 804(g) and (h).
But while the FTCA contains a bar on jury trials,
28 U.S.C. § 2402, Congress did not incorporate that
provision into the CLJA. Given that choice, the expressio unius canon (and common sense) counsel that
Congress did not intend to bar jury trials. And combined with Subsection (d)’s preservation of “the right
of any party to a trial by jury,” Congress’s intent is
unequivocal. It is not plausible that Congress both
expressly preserved the right to trial by jury and
23
declined to incorporate the FTCA’s bar on jury trials,
yet somehow intended to permit only bench trials.
The second structural feature is Congress’s decision to house the jury-trial provision in Subsection (d).
That subsection’s first sentence establishes exclusive
jurisdiction and venue in the Eastern District of North
Carolina. Its second sentence, however, explains that
the exclusive jurisdiction of the Eastern District does
not authorize the district court to resolve questions of
fact, despite the presumption that the vesting of jurisdiction in a district court over claims against the
United States permits only bench trials. Lehman, 453
U.S. at 164-65 & n.13 (holding that, in light of Federal
Rule of Civil Procedure 38(a), a statute vesting jurisdiction in federal district courts for claims against the
United States presumptively permits only bench trials). The phrasing of the second sentence as a caveat
to that grant of exclusive jurisdiction thus acknowledges that the jury-trial authorization in the second
sentence alters how courts would otherwise construe
the first sentence. The district court’s interpretation
of the second sentence, by contrast, leaves no explanation for why it is phrased as a caveat to the first.
d. Legislative Record. If deemed relevant, the
legislative record here is unusually persuasive. During the legislative process, the Department of Justice
acknowledged that the bill’s text “permits jury trials
that would not be available under the FTCA.” App.
114a (emphasis added). It then objected to the bill because it “would result in differing recoveries * * *
[e]specially if damages awards are to be decided by a
jury, as the statute contemplates.” App. 116a (emphasis added). Yet despite that objection, Congress stood
its ground, enacting the CLJA without removing or
24
altering the jury-trial provision. That is strong evidence that Congress intended to authorize jury trials.
Notably, the members of Congress who sponsored
the CLJA agree with the Department’s original assessment. After learning of the Department’s aboutface, Representative Matt Cartwright, the co-sponsor
and principal drafter of the CLJA, was baffled: “When
writing the Camp Lejeune Justice Act,” he stated, “we
understood that the only way the veterans, their families and others could get fair and just compensation
was through a jury trial.” App. 55a. “The Department
of Justice,” Representative Cartwright protested, “is
inexplicably reading this provision out of the statute.”
Ibid.
e. Common Sense. As this Court taught a century ago, “there is no canon against using common
sense in construing laws as saying what they obviously mean.” Roschen v. Ward, 279 U.S. 337, 339
(1929) (Holmes, J.); see, e.g., West Virginia v. EPA, 597
U.S. 697, 722-23 (2022). Congress drafted and enacted an entire sentence preserving the right to a trial
by jury for CLJA plaintiffs. Why on earth would Congress do that if it intended to permit only bench trials?
Neither the government nor the lower courts offered
any sensible explanation. This Court should grant review to restore what the CLJA “obviously mean[s].”
See Roschen, 279 U.S. at 339.
B. The District Court’s Construction Of The
CLJA Conflicts With This Court’s
Precedents
In concluding that the CLJA’s jury-trial provision
does not authorize jury trials for claims under the
statute, the district court misread this Court’s
25
precedents to impose an unduly high standard for construing a statute to authorize jury trials.
Lehman makes clear that because the United
States’ authorization of jury trials is a condition of its
waiver of sovereign immunity, determining whether
it has agreed to that condition is subject to the same
standard as discerning sovereign-immunity waivers.
453 U.S. at 160-61. Under that standard, this Court
has rejected a “magic words” test and instead instructed lower courts to employ all of the tools of statutory interpretation. Kirtz, 601 U.S. at 48; see Lac du
Flambeau, 599 U.S. at 387; FAA v. Cooper, 566 U.S.
284, 291 (2012).
But despite professing that it was not applying a
“magic words” test, App. 44a, the district court did exactly that. The court stated that “Congress did not
provide” sufficient “clarity in the CLJA” because it did
not enact a “variant” of an existing statute authorizing jury trials by providing: “Any action against the
United States under [the CLJA] shall, at the request
of either party to such action, be tried by the court
with a jury.” App. 43a-44a. If that is not a forbidden
“magic words” standard, nothing is.
Moreover, in direct contradiction to the district
court’s insistence for a “variant” of another jury-trial
provision, this Court explained just last year in the
context of sovereign-immunity waivers that Congress
can “us[e] different language to accomplish [the] same
goal in other statutory contexts.” Lac du Flambeau,
599 U.S. at 395. For that reason, the fact that Congress could have worded the CLJA differently is not
relevant. Congress need not state “its intent in the
most straightforward way.” Id. at 394.
26
The district court’s errors appeared to have
stemmed from an overreading of Lehman to require
that congressional intent be expressed more “affirmatively” than is required under the ordinary standard
for sovereign-immunity waivers. App. 44a. It is true
that Lehman variously described the standard as
whether the statute “clearly and unequivocally * * *
granted a right to trial by jury” and whether “Congress has affirmatively and unambiguously granted
that right by statute.” 453 U.S. at 162, 168. Those
formulations, however, must be read in light of the
opinion as a whole, which makes clear that a particular declarative formulation is not required so long as
congressional intent is clear from text, structure, history, and context. See pp. 14-17, supra.
This would not be the first time that this Court has
granted review to instruct lower courts that they
should not place undue weight on a particular sentence in an opinion of this Court in a manner that diverges from the opinion’s broader analysis and
holding. For example, last year in Groff v. DeJoy, 600
U.S. 447 (2023), the Court explained that lower courts
had
widely
misconstrued
the
religiousaccommodation provision of Title VII, 42 U.S.C.
§ 2000e(j), based on an overreading of “a single, but
oft-quoted, sentence in the opinion of the Court” in a
prior case. Id. at 464. Here, too, the lower courts have
overlooked this Court’s admonition that “the language
of an opinion is not always to be parsed as though we
were dealing with [the] language of a statute.” Brown
v. Davenport, 596 U.S. 118, 141 (2022) (citation omitted).
Should the Court conclude, however, that the district court properly understood Lehman, it should
27
limit that decision to its specific holding on the ADEA.
Once the government waives sovereign immunity,
there is no justification for courts to put a thumb on
the scale against construing the statute to authorize
jury trials—let alone the fist that the district court applied here.
Finally, to the extent that the Court concludes that
the CLJA does not authorize jury trials with sufficient
clarity even under the correct standard, it should reconsider its holding in McElrath, supra, that the Seventh Amendment does not require jury trials in
actions against the government because they do not
qualify as “Suits at common law.” 102 U.S. at 440.
This Court has construed that phrase to cover “statutory claims unknown to the common law, so long as
the claims can be said to soun[d] basically in tort, and
seek legal relief.” City of Monterey v. Del Monte Dunes
at Monterey, Ltd., 526 U.S. 687, 709 (1999) (quotation
omitted). No principled basis exists to exclude from
the amendment’s coverage tort-like damages actions
against the government, such as CLJA actions, where
the government has clearly waived sovereign immunity. Indeed, it is unlikely that the Founding generation would have tolerated such a substantial exception
to a right that was considered “the glory of the English
law.” Jarkesy, 144 S. Ct. at 2128 (quoting 3 W. Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 379
(8th ed. 1778)).
C. It Is Exceptionally Important That This
Court Resolve The Jury-Trial Question
Now
The question of whether the CLJA authorizes jury
trials is critically important for hundreds of
28
thousands of victims, the judicial system, and the government itself.
Few questions of statutory construction have such
an immediate and overwhelming practical impact on
so many cases and individuals. The federal government covered up the poisoning of Camp Lejeune’s water for decades. During that time, as many as one
million people lived or worked at the base. App. 58a.
In the CLJA, Congress has authorized anyone who
was exposed to the water for at least 30 days between
1953 and 1987 to bring an action against the federal
government.
As Congress surely anticipated when it enacted
the CLJA, numerous plaintiffs have filed claims under
the statute. Over a half million claims are pending
before the Navy, and thousands of plaintiffs have already filed suit. The question of whether those claims
should be tried to juries or judges therefore has immense importance.
It is imperative that this Court issue an authoritative answer on the jury-trial question now, not years
in the future. The district court has stated that it intends to try “countless” cases to the bench before the
question can be resolved on direct review. App. 7a.
Those cases may all have to be retried if an authoritative construction of the jury-trial provision does not
occur for years. The cost of those do-overs would be
substantial. CLJA trials demand an enormous expenditure of judicial resources from four district-court
chambers, executive-branch resources drawn from
taxpayers, and private-party resources deployed to secure justice for Camp Lejeune victims.
29
If this Court grants review now, however, those potentially wasted costs will likely be avoided. Although
it appears probable at this point that the first slate of
trials will occur before this Court would issue a decision on the merits, a grant of certiorari would give the
district court a strong reason to empanel advisory juries. See Fed. R. Civ. P. 39(c)(1). That would ensure
that if this Court were to ultimately hold that CLJA
plaintiffs have the right to trial by jury, no trial would
have to be redone. And at any rate, resolving the
question as soon as possible will minimize the number
of trials to be conducted without the benefit of this
Court’s resolution of the jury-trial question.
The question presented also has a more transcendent importance. As the Court explained last Term, the
right to trial by jury holds a preeminent position in
the traditions of our legal system. Jarkesy, 144 S. Ct.
at 2128. This Court has repeatedly reviewed decisions
curtailing the right to a civil jury trial, whether based
in the Constitution, see, e.g., Jarkesy, 144 S. Ct. at
2127-28; Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 584 U.S. 325, 333 (2018); Feltner v.
Columbia Pictures Television, Inc., 523 U.S. 340, 345
(1998), or a federal statute, see, e.g., Lehman, 453 U.S.
at 159-60; Lorillard, 434 U.S. at 576-77; Galloway,
319 U.S. at 388-89.
Moreover, many CLJA plaintiffs are elderly people
suffering from serious medical conditions. The years
that would elapse between a bench trial, subsequent
appeal, and eventual retrial would almost assuredly
deny some victims justice in their lifetimes. See Brianna Keilar & Margaret Given, Camp Lejeune Water
Contamination Cases Increasingly Becoming Wrongful Death Claims as Lawsuits Proceed at a Crawl,
30
CNN (Aug. 23, 2023).7 Resolving this issue today
would thus ensure that as many Camp Lejeune victims as possible will be able to tell their stories to a
jury of fellow citizens.
Two other considerations bear mention.
First, no other court of appeals will address the
first question presented given the CLJA’s exclusivevenue provision. In an analogous context, this Court
often grants review to consider decisions of the United
States Court of Appeals for the Federal Circuit involving the interpretation of statutes in cases appealed exclusively to that court.
See, e.g., Bufkin v.
McDonough, 144 S. Ct. 1455 (2024) (Mem.); Amgen
Inc. v. Sanofi, 598 U.S. 594 (2023).
Second, the lack of an appellate opinion below is no
barrier to relief, particularly given the district court’s
comprehensive (if flawed) opinion joined by four
judges. For instance, in Dairy Queen, Inc. v. Wood,
369 U.S. 469 (1962), the Court granted certiorari and
reversed an unreasoned denial of mandamus relief in
order to protect the right to trial by jury. Id. at 470.
It should follow the same course here.
II. THE QUESTION OF WHETHER MANDAMUS
RELIEF IS APPROPRIATE TO REMEDY
THE DENIAL OF A STATUTORY JURYTRIAL RIGHT WARRANTS REVIEW
In the court of appeals, the government argued, as
an alternative ground for denying petitioners’ mandamus petition, that mandamus relief is not categorically available to remedy the denial of a statutory
7
https://tinyurl.com/dhsne4g.
31
jury-trial right. Gov’t Resp. 21-23. That position conflicts with this Court’s decision in Beacon Theatres,
supra. Moreover, to the extent that the court of appeals’ summary denial of the mandamus petition
rested on that ground, the decision deepened a
longstanding (though lopsided) circuit conflict, which
would now stand at 7-1-1. Resolving that conflict and
bringing the outlier circuits into conformity with this
Court’s precedent independently justifies immediate
review in this case, especially given that petitioners
could not raise the issue in a later direct appeal.
A. Beacon Theatres Holds That Mandamus
Relief Is Categorically Available To
Vindicate A Jury-Trial Right
Because of its unique importance, the right to trial
by jury has “occupied an exceptional place in the history of the law of federal mandamus.” Wilmington Tr.
v. U.S. Dist. Ct., 934 F.2d 1026, 1028 (9th Cir. 1991)
(listing decisions of this Court stretching back to
1918). Under this Court’s precedent, “the right to
grant mandamus to require [a] jury trial where it has
been improperly denied is settled.” Beacon Theatres,
359 U.S. at 511 (emphasis added).
Indeed, for over a century, the Court has held that
if a lower court’s ruling “would deprive [a mandamus]
petitioner of his right to a trial by jury, the order
should * * * be dealt with now, before the plaintiff is
put to the difficulties and the courts to the inconvenience that would be raised by a proceeding that ultimately must be held to have been required under a
mistake.” In re Peterson, 253 U.S. 300, 305-06 (1920)
(quotation omitted). As Chief Justice Taft wrote for
the Court, the deprivation of a right to a jury trial “has
32
been regarded as furnishing a substantial ground for
the extraordinary process of the writ” of mandamus.
In re Skinner & Eddy Corp., 265 U.S. 86, 96 (1924).
For that reason, a party need not satisfy the ordinary criteria for mandamus relief, such as the unavailability of an appellate remedy, to obtain an order
directing the district court to honor the party’s right
to a jury trial. Dairy Queen, 369 U.S. at 470; see 16
Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3935.1 (3d ed. June 2024).
In the court of appeals, the government acknowledged that mandamus may issue to correct the denial
of a constitutional right to a jury trial without considering the typical mandamus factors. Gov’t Resp. 2223. But the government claimed that this settled rule
does not apply to a statutory jury-trial right, distinguishing In re Lockheed Martin Corp., 503 F.3d 351
(4th Cir. 2007), on the ground that it concerned the
Seventh Amendment right. Gov’t Resp. 23.
That arbitrary distinction conflicts with this
Court’s decision in Beacon Theatres. There, this Court
rejected the position that “mandamus is not available”
to vindicate the right to a jury trial and explained
without qualification that “the right to grant mandamus to require [a] jury trial where it has been improperly denied is settled.” 359 U.S. at 511. The Court
drew no distinction between statutory and constitutional jury-trial rights. Indeed, the first sentence of
Justice Stewart’s dissent (joined by Justices Harlan
and Whittaker) agreed with the majority on the availability of mandamus and explicitly included statutory
jury-trial rights within the rule: “There can be no
doubt that a litigant is entitled to a writ of mandamus
33
to protect a clear constitutional or statutory right to a
jury trial.” Id. (emphasis added). And while the Court
noted in Dairy Queen, supra, that mandamus relief
can be “necessary to protect the constitutional right to
trial by jury,” 369 U.S. at 472, it did not suggest that
mandamus is unavailable to protect statutory rights
as well.
No principle of mandamus review gives primacy to
constitutional over statutory rights. See, e.g., Atl. Marine Const. Co. v. U.S. Dist. Ct., 571 U.S. 49 (2013)
(reversing denial of mandamus to secure the petitioner’s statutory venue rights); TC Heartland LLC v.
Kraft Foods Grp. Brands LLC, 581 U.S. 258 (2017)
(same). And the government’s artificial distinction
primarily serves to benefit the government itself in
defending claims brought by citizens, because under
existing precedent only a statute can provide a jurytrial right in damages suits against the government.
Lehman, 453 U.S. at 160.
B. Granting Review Would Allow This Court
To Resolve A Three-Way Circuit Split
To the extent that the Fourth Circuit embraced the
government’s argument that mandamus relief is not
available, it deepened a preexisting circuit conflict.
Seven circuits have followed Beacon Theatres in holding that mandamus is appropriate to remedy the denial of a jury-trial right without analysis of the
traditional factors. See Maldonado v. Flynn, 671 F.2d
729, 732 (2d Cir. 1982) (per curiam); Eldredge v. Gourley, 505 F.2d 769, 770 (3d Cir. 1974) (per curiam);
United States v. Denson, 603 F.2d 1143, 1146-47 (5th
Cir. 1979) (en banc); In re Vorpahl, 695 F.2d 318, 31922 (8th Cir. 1982); Wilmington Tr. v. U.S. Dist. Ct. for
34
Dist. of Hawaii, 934 F.2d 1026, 1028 (9th Cir. 1991);
Nissan Motor Corp. in USA v. Burciaga, 982 F.2d 408,
409 (10th Cir. 1992) (per curiam); In re Zweibon, 565
F.2d 742, 745 (D.C. Cir. 1977) (per curiam). Like this
Court, none of those courts distinguished between
statutory and constitutional jury-trial rights on this
question.
In fact, one circuit has specifically applied the rule
to the denial of a statutory jury-trial right. In
Vorpahl, the Eighth Circuit addressed in a mandamus
posture whether a federal statute granted litigants
the right to a jury trial. 695 F.2d at 320-22. Before
answering no, it affirmed that “the remedy of mandamus in determining the right to a jury trial is firmly
settled.” Id. at 319.
On the other side of the ledger, the Seventh Circuit
has held that mandamus relief is not categorically
available to remedy the denial of either the constitutional or the statutory right to a jury trial. See First
Nat’l Bank of Waukesha v. Warren, 796 F.2d 999,
1001-06 (7th Cir. 1986).
Accordingly, insofar as the Fourth Circuit adopted
the government’s view that mandamus relief is not
categorically available to remedy the denial of a statutory jury-trial right, it has created a three-way circuit conflict, with seven circuits holding that
mandamus relief is categorically available to challenge the denial of a jury-trial right, the Seventh Circuit holding that it is not categorically available, and
the Fourth Circuit holding that it is categorically
available only for a constitutional jury-trial right.
A conflict on such a basic question of procedure—
in which two circuits have adopted rules that conflict
35
with a seminal precedent of this Court—merits resolution. Importantly, this Court could not review that
question in a later direct appeal. Especially given the
overwhelming practical importance of resolving the
CLJA jury-trial issue now, this Court should grant
certiorari.
CONCLUSION
The petition for a writ of certiorari should be
granted.
36
Respectfully submitted.
J. EDWARD BELL, III
BELL LEGAL GROUP, LLC
219 Ridge St.
Georgetown, SC 29440
(843) 546-2408
JOHN F. BASH
Counsel of Record
CHRISTOPHER G. MICHEL
NICHOLAS J. CALUDA
ALEX VAN DYKE
OWEN B. SMITHERMAN
ZINA BASH
QUINN EMANUEL URQUHART
ASHLEY KELLER
& SULLIVAN, LLP
1300 I St. NW, Ste. 900
KELLER POSTMAN LLC
111 Congress Ave., Ste. 500 Washington, D.C. 20005
Austin, TX 78701
(202) 538-8000
(956) 345-9462
johnbash@quinnemanuel.com
W. MICHAEL DOWLING
THE DOWLING FIRM PLLC
P.O. Box 27843
Raleigh, NC 27611
(919) 529-3351
JAMES A. ROBERTS, III
LEWIS & ROBERTS, PLLC
3700 Glenwood Ave.
Ste. 410
P.O. Box 17529
Raleigh, NC 27619
(919) 981-0191
ELIZABETH CABRASER
LIEFF CABRASER HEIMANN
& BERNSTEIN, LLP
275 Battery St., Ste. 2900
San Francisco, CA 94111
(415) 956-1000
ROBIN L. GREENWALD
WEITZ & LUXENBERG, P.C.
700 Broadway
New York, NY 10003
(212) 558-5802
MONA LISA WALLACE
WALLACE & GRAHAM, P.A.
525 North Main St.
Salisbury, NC 28144
(704) 633-5244
Counsel for Petitioners
December 23, 2024
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
APPENDIX A: Order Denying Mandamus,
U.S. Court of Appeals for the Fourth Circuit
(August 23, 2024) .............................................
1a
APPENDIX B: Opinion Denying Motion To
Certify, U.S. District Court for the Eastern
District Of North Carolina (May 13, 2024) .....
2a
APPENDIX C: Opinion Striking Jury Trial
Demand, U.S. District Court for the Eastern
District Of North Carolina (February 6, 2024)
..........................................................................
10a
APPENDIX D: Order Denying Rehearing, U.S.
Court of Appeals for the Fourth Circuit
(October 4, 2024) ..............................................
50a
APPENDIX E: Camp Lejeune Justice Act of
2022, Pub. L. No. 117-168, § 804 (August 10,
2022) .................................................................
51a
APPENDIX F: FTCA Statutory Excerpts,
28 U.S.C. §§ 1346(b), 2402 ..............................
54a
APPENDIX G: Remarks of Cong. Matthew
Cartwright on CLJA and Jury Trials
(November 1, 2023) ..........................................
55a
APPENDIX H: Plaintiffs’ Master Complaint
(October 6, 2023) ..............................................
57a
APPENDIX I: DOJ Technical Assistance Report
on CLJA Predecessor (May 2, 2022)................ 113a
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
[Filed: August 23, 2024]
————
No. 24-1542
(7:23-cv-00897-RJ)
(7:23-cv-00532-M-RJ)
(7:23-cv-00202-D-BM)
————
In re: SUSAN MCBRINE; DAVID L. PETRIE
Petitioners
————
ORDER
Upon consideration of the petition for writ of
mandamus, the court denies the petition.
Entered at the direction of Judge Benjamin with the
concurrence of Judge Wynn and Senior Judge Motz.
For the Court
/s/ Nwamaka Anowi, Clerk
2a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
————
No. 7:23-CV-897
————
IN RE: CAMP LEJEUNE WATER LITIGATION
————
THIS DOCUMENT RELATES TO: ALL CASES
————
ORDER
On February 6, 2024, this court granted the United
States of America’s (“United States” or “defendant”)
motion to strike plaintiffs’ jury trial demand. See [D.E.
133]. On February 14, 2024, Plaintiffs’ Leadership Group
(“PLG”) on behalf of plaintiffs Susan McBrine and
David L. Petrie (“plaintiffs”) moved to certify for
immediate appellate review this court’s order granting
defendant’s motion to strike plaintiffs’ jury trial
demand [D.E. 137] and filed a memorandum in
support [D.E. 138]. See 28 U.S.C. § 1292(b). On March
4, 2024, the United States responded in opposition
[D.E. 153]. On March 11, 2024, plaintiffs replied [D.E.
158]. As explained below, the court denies plaintiffs’
motion to certify.
I.
“Finality as a condition of review is an historic
characteristic of federal appellate procedure.” Cobbledick
v. United States, 309 U.S. 323, 324 (1940). Since 1958,
however, a district court may certify an order for
3a
interlocutory appeal if the order “involves a controlling
question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate
termination of the litigation.” 28 U.S.C. § 1292(b).
Section 1292(b) requires a movant to show: (1) a
controlling question of law where there is substantial
ground for difference of opinion, (2) that the order may
materially advance the ultimate termination of the
litigation, and (3) “that exceptional circumstances
justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475
(1978) (quotation omitted), superseded in part on other
grounds by Fed. R. Civ. P. 23(f); see 28 U.S.C. § 1292(b);
Caterpillar v. Lewis, 519 U.S. 61, 74 (1996) (“Routine
resort to § 1292(b) requests would hardly comport with
Congress’ [s] design to reserve interlocutory review for
‘exceptional’ cases while generally retaining for the
federal courts a firm final judgment rule.” (quotation
omitted)); Hogans v. Charter Commc’ns, Inc., No. 5:20CV-566, 2022 WL 1500859, at *1-2 (E.D.N.C. May 12,
2022) (unpublished); Eshelman v. Puma Biotechnology,
Inc., No. 7:16-CV-18, 2017 WL 9440363, at *1-2 (E.D.N.C.
May 24, 2017) (unpublished); Stillwagon v. Innsbrook
Golf & Marina. LLC, No. 2:13-CV-18, 2014 WL
5871188, at *9 (E.D.N.C. Nov. 12, 2014) (unpublished).
Certification under section 1292(b) is the exception,
not the rule. See, e.g., Caterpillar, 519 U.S. at 74; Hill
v. Robeson Cnty., No. 7:09-CV-5, 2010 WL 2680555,
at *1 (E.D.N.C. July 6, 2010) (unpublished). Section
“1292(b) should be used sparingly and thus . . . its
requirements must be strictly construed.” Myles v.
Laffitte, 881 F.2d 125, 127 (4th Cir. 1989). Unless the
movant satisfies the three statutory criteria under
section 1292(b), “the district court may not and should
4a
not certify its order for an immediate appeal under
section 1292(b).” Butler v. DirectSAT USA, LLC, 307
F.R.D. 445, 452 (D. Md. 2015) (cleaned up); see
Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674,
676-77 (7th Cir. 2000). If the movant satisfies the
three statutory criteria, then the “decision to certify an
interlocutory appeal is firmly in the district court’s
discretion.” Goodman v. Archbishop Curley High Sch.,
195 F. Supp. 3d 767, 772 (D. Md. 2016) (quotation
omitted); see Swint v. Chambers Cnty. Comm’n, 514
U.S. 35, 47 (1995) (Congress “chose to confer on district
courts first line discretion to allow interlocutory appeals”);
Manion v. Spectrum Healthcare Res., 966 F. Supp. 2d
561, 567 (E.D.N.C. 2013).
As for the first factor, the “movant must state ‘the
precise nature of the controlling question of law involved.’”
Stillwagon, 2014 WL 5871188, at *9 (quoting Fannin
v. CSX Transp., Inc., 873 F.2d 1438, 1989 WL 42583, at
*2 (4th Cir. 1989) (per curiam) (unpublished table
decision)); see United States ex rel. Michaels v. Agape
Senior Cmty., Inc., 848 F.3d 330, 340-41 (4th Cir. 2017);
Eshelman, 2017 WL 9440363, at *1. A “controlling
question of law” well-adapted to discretionary interlocutory review is “a narrow question of pure law
whose resolution will be completely diapositive of
the litigation, either as a legal or practical matter,
whichever way it goes.” Fannin, 1989 WL 42583, at *5;
see Univ. of Va. Pat. Found. v. Gen. Elec. Co., 792 F.
Supp. 2d 904, 910 (W.D. Va. 2011). A controlling issue
of law must dispose of the litigation no matter how it
is resolved, and “a question of law would not be
controlling if the litigation would necessarily continue
regardless of how that question were decided.” Wyeth
v. Sandoz, Inc., 703 F. Supp. 2d 508, 525 (E.D.N.C.
2010) (quotation omitted); see Fannin, 1989 WL 42583,
at *5; Feinberg v. T. Rowe Price Grp., Inc., Civ. No. 17-
5a
0427, 2021 WL 2784614, at *2 (D. Md. July 2, 2021)
(unpublished); Long v. CPI Sec. Sys., Inc., No. 3:12-CV396, 2013 WL 3761078, at *2 (W.D.N.C. July 16, 2013)
(unpublished).
A “substantial ground for a difference of opinion
must arise out of a genuine doubt as to whether the
district court applied the correct legal standard in its
order.” Wyeth, 703 F. Supp. 2d at 527 (quotation
omitted). A substantial ground for difference of opinion
does not occur when a party merely believes that the
district court wrongly decided the issue or incorrectly
applied the governing legal standard. See Ahrenholz,
219 F.3d at 676-77; Nat’l Interstate Ins. Co. v. Morgan
& Sons Weekend Tours, Inc., No. 1:11CV1074, 2016 WL
1228622, at *2 (M.D.N.C. Mar. 28, 2016) (unpublished);
Butler, 307 F.R.D. at 454-55; McDaniel v. Mehfoud, 708
F. Supp. 754, 756 (E.D. Va. 1989). Merely because two
courts may have “appl[ied] the same straightforward
legal standard to similar facts and reach[ed] different
results . . . does not mean that the standard itself (or
the analysis courts must undertake in applying the
standard) is in any way unclear.” Hall v. Greystar
Mgmt. Servs., L.P., 193 F. Supp. 3d 522, 527 (D. Md.
2016). A substantial ground for disagreement may also
exist “if there is a novel and difficult issue of first
impression.” Adams v. S. Produce Distribs., Inc., No.
7:20-CV-53, 2021 WL 394842, at *3 (E.D.N.C. Feb. 4,
2021) (unpublished) (quotation omitted); see Karanik
v. Cape Fear Acad., Inc., No. 7:21-CV-169, 2022 WL
16556774, at *5 (E.D.N.C. Oct. 31, 2022) (unpublished);
United States ex rel. Al Procurement, LLC v. Thermcor,
Inc., 173 F. Supp. 3d 320, 323 (E.D. Va. 2016).
As for the second factor, resolving the controlling
legal question must materially advance the ultimate
termination of the litigation. See Coopers & Lybrand,
6a
437 U.S. at 466 n.5. This factor focuses on whether
resolving the controlling legal question would avoid a
trial or otherwise substantially shorten the litigation.
See, e.g., Agape Senior Cmty., Inc., 848 F.3d at 340-41.
“[P]iecemeal review of decisions that are but steps
toward final judgment[] on the merits are to be
avoided, because they can be effectively and more
efficiently reviewed together in one appeal from the
final judgment[].” James v. Jacobson, 6 F.3d 233, 237
(4th Cir. 1993); see Caterpillar, 519 U.S. at 74; cf. Switz.
Cheese Ass’n v. Home’s Mkt., Inc., 385 U.S. 23, 25 (1966)
(“Orders that in no way touch on the merits of the
claim but only relate to pretrial procedures are not . . .
‘interlocutory’ within the meaning of § 1292(a)(1).”).
As for the third factor, exceptional circumstances
exist when an interlocutory appeal “would avoid
protracted and expensive litigation.” Fannin, 1989 WL
42583, at *2 (quotation omitted); see Medomsley Steam
Shipping Co. v. Elizabeth River Terminals, Inc., 317
F.2d 741, 743 (4th Cir. 1963).
Plaintiffs argue that the jury-trial issue is a “novel
and difficult” question of “first impression.” [D.E. 138]
4. Although the jury-trial issue is one of first impression because Congress recently enacted the Camp
Lejeune Justice Act (“CLJA”), that an issue is one of
first impression does not alone warrant interlocutory
appeal under section 1292(b). See, e.g., Flor v. BOT Fin.
Corp. (In re Flor), 79 F.3d 281, 284 (2d Cir. 1996) (per
curiam); Wyeth, 703 F. Supp. 2d at 527. Moreover, the
court disagrees that the jury-trial issue is novel and
difficult. Furthermore, the “substantial ground for a
difference of opinion must arise out of a genuine doubt
as to whether the district court applied the correct
legal standard in its order.” Wyeth, 703 F. Supp. 2d at
527 (quotations omitted). Here, the court applied the
7a
correct legal standard under Lehman v. Nakshian, 453
U.S. 156, 161-62, 168 (1981), and other applicable
precedent and canons of construction. See [D.E. 133]
7-34.
Plaintiffs also argue that the jury-trial issue is a
“new legal question” and has “special consequence.”
[D.E. 138] 5. The court agrees that the question is
“new” because the CLJA is new, but disagrees that the
question has “special consequence.” This court is prepared to proceed expeditiously with bench trials. If a
party is unhappy with the result of the bench trial, the
party may appeal once the court enters final judgment.
As part of any such appeal, the party can challenge
this court’s ruling concerning jury trials. If the court
incorrectly held that plaintiffs are not entitled to a jury
trial under the CLJA, the court then can hold jury
trials. In the meantime, however, this court will resolve
countless cases under the CLJA.
Next, plaintiffs argue that the jury-trial issue presents
a “closer question” than decisions interpreting other
statutes. Id. The court disagrees and believes that it
properly analyzed the CLJA, Lehman, and other
relevant precedent.
Finally, plaintiffs cite Department of Agriculture
Rural Development Rural Housing Service v. Kirtz, 601
U.S. 42 (2024), and argue that Kirtz supports the
conclusion that the CLJA permits a jury trial against
the United States. See [D.E. 138] 6; [D.E. 158] 6. In
Kirtz, the Supreme Court reaffirmed that “a waiver of
sovereign immunity must be unmistakably clear in the
language of the statute.” Kirtz, 601 U.S. at 49 (quotation omitted); see Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 73 (2000). The Supreme Court observed that in
order to determine whether Congress waived sovereign
immunity, a court must focus on “statutory text rather
8a
than legislative history.” Kirtz, 601 U.S. at 49. “[N]o
amount of legislative history can supply a waiver that
is not clearly evident from the language of the statute.”
Id. (quotation omitted). Likewise, “when an unmistakably clear waiver of sovereign immunity appears in a
statute, no amount of legislative history can dislodge
it.” Id. (quotations omitted). Applying these principles,
the Supreme Court held that the Fair Credit Reporting
Act of 1996 (“FCRA”) unmistakably abrogated sovereign
immunity against a federal agency because the FCRA
“authorize[d] consumer suits for money damages
against ‘[a]ny person’ who willfully or negligently fails
to comply with” the FCRA and defined ‘person’ to
include ‘any . . . governmental . . . agency.’ Kirtz, 601
U.S. at 51 (quoting 15 U.S.C. §§ 1681n(a), 1681o(a),
1681a(b)).
This court’s February 6, 2024 analysis comports
with Kirtz. See [D.E. 133] 7-34. Moreover, this court’s
analysis rejecting plaintiffs’ reliance on the CLJA’s
legislative history and cases such as Galloway v.
United States, 319 U.S. 372 (1943), and Pence v. United
States, 316 U.S. 332 (1942), comports with Kirtz. See
Kirtz, 601 11.S. at 49, 52-58: cf. [D.E. 158] 2, 5. Thus,
Kirtz supports this court’s decision striking plaintiffs’
jury trial demand and does not support plaintiffs’
motion to certify.
II.
In sum, the court DENIES plaintiffs’ motion to
certify for appeal the order granting defendant’s
motion to strike the demand for a jury trial [D.E. 137].
SO ORDERED. This 13 day of May, 2024.
9a
/s/ Richard E. Myers II
RICHARD E. MYERS II
Chief United States District Judge
/s/ Louise W. Flanagan
LOUISE W. FLANAGAN
United States District Judge
/s/ Terrence W. Boyle
TERRENCE W. BOYLE
United States District Judge
/s/ James C. Dever III
JAMES C. DEVER III
United States District Judge
10a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
————
No. 7:23-CV-897
————
IN RE: CAMP LEJEUNE WATER LITIGATION
————
THIS DOCUMENT RELATES TO: ALL CASES
————
ORDER
On November 20, 2023, the United States of America
(“United States” or “defendant”) moved to strike the
jury trial demand in plaintiffs’ master complaint [D.E.
51] and filed a memorandum in support [D.E. 51-1]. On
December 4, 2023, plaintiffs responded in opposition
[D.E. 66]. On December 18, 2023, the United States
replied [D.E. 84]. As explained below, the Camp Lejeune
Justice Act of 2022 (“CLJA”) does not unequivocally,
affirmatively, and unambiguously provide plaintiffs
the right to a jury trial in actions seeking relief under
subsection 804(b) of the CLJA. Moreover, in the CLJA,
Congress did not clearly and unequivocally depart
from its usual practice of not permitting a jury trial
against the United States. Thus, the court grants
defendant’s motion to strike the jury trial demand in
plaintiffs’ master complaint.
I.
In August 2022, Congress enacted and President
Biden signed the CLJA. See Pub. L. No. 117-168, § 804,
11a
136 Stat. 1759, 1802-04. On August 10, 2022, the CLJA
became effective. The CLJA contains ten subsections.
Subsection (a) provides the name of the Act. See id.
§ 804(a). Subsection 804(b) states that “[a]n individual,
including a veteran (as defined in section 101 of title
38, United States Code), 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.” Id. § 804(b).
Subsection 804(c) states that “[t]he 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.” Id. § 804(c)(1). “To meet the burden of
proof described in paragraph (1), a party shall produce
evidence showing that the relationship between exposure
to the water at Camp Lejeune and the harm is (A)
sufficient to conclude that a causal relationship exists;
or (B) sufficient to conclude that a causal relationship
is at least as likely as not.” Id. § 804(c)(2).
Subsection 804(d) is entitled “Exclusive Jurisdiction
And Venue.” Id. § 804(d). The first sentence in subsection 804(d) states: “The United States District
Court for the Eastern District of North Carolina shall
have exclusive jurisdiction over any action filed under
subsection (b), and shall be the exclusive venue for
such an action.” Id. The second sentence in subsection
804(d) states that “[n]othing in this subsection shall
impair the right of any party to a trial by jury.” Id.
12a
Subsection 804(e) is entitled “Exclusive Remedy.” Id
§ 804(e). Subsection (e)(1) provides that “[a]n individual,
or legal representative of an individual, who brings
an action under this section for a harm described in
subsection (b), including a latent disease, may not
thereafter bring a tort action against the United
States for such harm pursuant to any other law.” Id.
§ 804(e)(1). Subsection (e)(2) provides that:
Any award made to an individual, or legal
representative of an individual, under this
section shall be offset by the amount of any
disability award, payment, or benefit provided
to the individual, or legal representative—
(A) under–
(i) any program under the laws administered by the Secretary of Veterans Affairs;
(ii) the Medicare program under title
XVIII of the Social Security Act (42 U.S.C.
1395 et seq.); or
(iii) the Medicaid program under title
XIX of the Social Security Act (42 U.S.C.
1396 et seq.); and
(B) in connection with health care or a
disability relating to exposure to the water
at Camp Lejeune.
Id. § 804(e)(2).
Subsection 804(f) is entitled “Immunity Limitation.”
Id. § 804(f). It states: “The United States may not
assert any claim to immunity in an action under this
section that would otherwise be available under
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section 2680(a) of title 28, United States Code.” Id.
§ 804(f). 1
28 U.S.C. § 2680(a) provides: “The provision of this chapter
and section 1346(b) of this title shall not apply to —”
1
Any claim based upon an act or omission of an
employee of the Government, exercising due care, in
the execution of a statute or regulation, whether or not
such statute 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 agency or an employee of the Government,
whether or not the discretion involved be abused.
28 U.S.C. § 2680(a).
In turn, 28 U.S.C. § 1346(b) provides:
(1) Subject to the provisions of chapter 171 of this title,
the district courts, together with the United States
District Court for the District of the Canal Zone and
the District Court of the Vugin Islands, shall have
exclusive jurisdiction of civil actions on claims against
the United States, for money damages, accruing on and
after January 1, 1945, 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, under circumstances where the United
States, if a private person, would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.
(2) No person convicted of a felony who is incarcerated
while awaiting sentencing or while serving a sentence
may bring a civil action against the United States or
an agency, officer, or employee of the Government, for
mental or emotional injury suffered while in custody
without a prior showing of physical injury or the
commission of a sexual act (as defined in section 2246
of title 18).
28 U.S.C. § 1346(b).
14a
Subsection 804(g) states: “Punitive damages may
not be awarded in any action under this section.” Id.
§ 804(g).
Subsection 804(h) states: “An individual may not
bring an action under this section before complying
with section 2675 of title 28, United States Code.” Id.
§ 804(h). This provision requires a CLJA claimant to
exhaust administrative remedies under 28 U.S.C.
§ 2675 before filing an action in the Eastern District of
North Carolina seeking relief under subsection 804(b)
of the CLJA. See Brewer v. United States, No. 7:22-CV150, 2023 WL 1999853, at *4 (E.D.N.C. Feb. 14, 2023)
(unpublished); Pugh v. United States, No. 7:22-CV-124,
2023 WL 1081262, at *6 (E.D.N.C. Jan. 27, 2023)
(unpublished); Girard v. United States, No. 2:22-CV-22,
2023 WL 115815, at *5 (E.D.N.C. Jan. 5, 2023)
(unpublished). 2
2
28 U.S.C. § 2675 provides:
(a) 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. The failure of an agency to make final
disposition of a claim within six months after it is filed
shall, at the option of the claimant any time thereafter,
be deemed a final denial of the claim 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 party
complaint, cross-claim, or counterclaim.
15a
Subsection 804(i) states: “This section does not apply
to any claim or action arising out of the combatant
activities of the Armed Forces.” CLJA § 804(i).
Subsection 804(j)(1) states: “This section shall apply
only to a claim accruing before the date of enactment
of this Act.” Id. § 804(j)(1). Subsection 804(j)(2) is
entitled “Statute Of Limitations.” Id. § 804(j)(2). It
states: “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.” Id. Subsection 804(j)(3) is entitled “Inapplicability
Of Other Limitations” and states: “Any applicable
statute of repose or statute of limitations, other than
under paragraph (2), shall not apply to a claim under
this section.” Id. § 804(j)(3).
Before Congress enacted the CLJA, claimants who
were service members or family members filed approximately 4,000 claims under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 2671-2680, and 17 federal
lawsuits. See In re Camp Lejeune N.C. Water Cont.
Litig., 263 F. Supp. 3d 1318, 1325 (N.D. Ga. 2016). In
(b) Action under 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
claim to the federal agency, or upon allegation and
proof of intervening facts, relating to the amount of the
claim.
(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.
16a
these claims and federal lawsuits, the claimants and
plaintiffs alleged that they were exposed to toxic
substances in the water supply while living at Camp
Lejeune. See id. They also alleged that they suffered
illness or death as a result of actions of the United
States and sought relief pursuant to the FTCA. See id.
The Judicial Panel on Multidistrict Litigation granted
MDL status to the 17 federal lawsuits and transferred
them to the United States District Court for the
Northern District of Georgia. See id.; 28 U.S.C. § 1407.
On December 5, 2016, that court dismissed plaintiffs’
claims and held that: (1) North Carolina’s ten-year
statute of repose applied to plaintiffs’ claims; (2) under
North Carolina law, the ten-year limitations period
began to run on the date the allegedly contaminated
wells were taken out of use; (3) the Feres doctrine 3
barred the claims of service members where the injuries
arose out of their military service; (4) the discretionary
function exception to liability under the FTCA in 28
U.S.C. § 2680(a) applied; and (5) the United States’
sovereign immunity barred plaintiffs’ Due Process Clause
and Equal Protection Clause claims. See In re Camp
Lejeune N.C. Water Cont. Litig., 263 F. Supp. 3d at
1336-60. On May 22, 2019, the United States Court of
Appeals for the Eleventh Circuit affirmed. See In re
Camp Lejeune, N.C. Water Cont. Litig., 774 F. App’x
564, 566-68 (11th Cir. 2019) (per curiam) (unpublished).
On June 1, 2020, the Supreme Court denied certiorari.
See Douse v. United States, 140 S. Ct. 2824 (2020).
When Congress enacted the CLJA, the Congressional
Budget Office estimated the costs of settlement payouts
and legal expenses to be $6.1 billion. See Congressional
Budget Office, Estimated Budgetary Effects of Rules
See Feres v. United States, 340 U.S. 135, 146 (1950); cf. United
States v. Brown, 348 U.S. 110, 112-13 (1954).
3
17a
Committee Print 117-33 for H.R. 3967, Honoring our
PACT Act of 2021 (Feb. 18, 2022). After a national legal
advertising campaign that some commentators have
estimated cost over $100 million, claimants have filed
approximately 164,000 administrative claims with the
Department of the Navy. See [D.E. 128] 1; CLJA
§ 804(h). Moreover, plaintiffs have filed 1,492 civil
actions in the United States District Court for the
Eastern District of North Carolina seeking relief
under subsection 804(b) of the CLJA. See [D.E. 128] 1;
CLJA § 804(b). Claimants’ demands in the administrative process under subsection 804(h) of the CLJA
exceed $3.3 trillion. See [D.E. 34] 15; CLJA § 804(h).
II.
Whether to strike plaintiffs’ jury trial demand
requires the court to examine the ordinary meaning of
the CLJA’s statutory text, to interpret specific provisions of the CLJA within their broader statutory context,
and to apply certain canons of construction, which are
presumptions about how courts ordinarily read statutes.
See., e.g., Jones v. Hendrix, 599 U.S. 465, 472-80, 49092 (2023); Lac Du Flambeau Band of Lake Superior
Chippewa Indians v. Coughlin, 599 U.S. 382, 387-88
(2023); MOAC Mall Holdings LLC v. Transform Holdco
LLC, 598 U.S. 288, 298-303 (2023); Sackett v. EPA, 598
U.S. 651, 679-83 (2023); Fin. Oversight Mgmt. Bd. for
P.R. v. Centro De Periodismo Investigativo, Inc., 598
U.S. 339, 346-50 (2023); Ciminelli v. United States, 598
U.S. 306, 314-16 (2023); Santos-Zacaria v. Garland,
598 U.S. 411, 416-20 (2023); Wilkins v. United States,
598 U.S. 152, 157-59 (2023); West Virginia v. EPA, 142
S. Ct. 2587, 2607-09 (2022); Boechler, P.C. v. Comm’r of
Internal Rev., 596 U.S. 199, 203-08 (2022); PennEast
Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2262-63
(2021); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S.
18a
Ct. 1959, 1981 (2020); Opati v. Republic of Sudan, 140
S. Ct. 1601, 1607-10 (2020).
The sovereign immunity clear statement canon
provides that if a defendant enjoys sovereign immunity
(as the United States does), “abrogation requires an
unequivocal declaration from Congress.” Fin. Oversight
& Mgmt. Bd. for P.R., 598 U.S. at 347 (quotation omitted);
see Dellmuth v. Muth, 491 U.S. 223, 232 (1989) (“We
hold that the statutory language of the [Education of
the Handicapped Act] does not evince an unmistakably
clear intention to abrogate the States’ constitutionally
secured immunity from suit.”). The Supreme Court has
described the “standard for finding a congressional
abrogation [as] stringent” and “has found that standard
met in only two situations.” Fin. Oversight & Mgmt.
Bd. for P.R., 598 U.S. at 346-47. First, “when a statute
says in so many words that it is stripping immunity
from a sovereign entity,” by, for example, stating in the
statute “that States ‘shall not be immune’ under any
‘doctrine of sovereign immunity, from suit in Federal
court’ for patent or copyright infringement.” Id. at 347
(quoting 35 U.S.C. § 296(a); 17 U.S.C. § 511(a)). Second,
“when a statute creates a cause of action and authorizes suit against a government on that claim.” Id.
Subsection 804(b) of the CLJA fits squarely within
the Supreme Court’s second example. Thus, the United
States does not have sovereign immunity for actions
under subsection 804(b) of the CLJA. See id.; Lac Du
Flambeau Band of Lake Superior Chippewa Indians,
599 U.S. at 387-88.
A corollary to the sovereign immunity clear statement canon is that “limitations and conditions upon
which the Government consents to be sued must be
strictly observed and exceptions thereto are not to be
implied.” Soriano v. United States, 352 U.S. 270, 276
19a
(1957); see United States v. Mitchell, 445 U.S. 535, 538
(1980) (“It is elementary that the United States, as
sovereign, is immune from suit save as it consents to
be sued, and the terms of its consent to be sued in any
court define the court’s jurisdiction to entertain the
suit. A waiver of sovereign immunity cannot be implied
but must be unequivocally expressed.”) (cleaned up);
United States v. Testan, 424 U.S. 392, 399 (1976);
United States v. Sherwood, 312 U.S. 584, 586 (1941).
One such limitation includes whether a plaintiff has
the right to a jury trial in a civil action against the
United States. See, e.g., Lehman v. Nakshian, 453 U.S.
156, 160-69 (1981).
In Lehman, the Supreme Court held that the 1974
amendments to the Age Discrimination in Employment
Act of 1967 (“ADEA”) did not create a right to a jury
trial against the United States in ADEA actions. See
id. at 162-69. The statutory text at issue in Lehman
was “new” sections 15(a)—(c) in the ADEA. See id. at
157-58. Section 15(a) prohibited “the Federal Government
from discrimination based on age in most of its civilian
employment decisions concerning persons over 40
years of age.” Id. at 157. Section 15(b) provided that
“enforcement of § 15(a) in most agencies, including
military departments, is the responsibility of the
Equal Employment Opportunity Commission.” Id. at
157-58. Section 15(c) provided: “[a]ny person aggrieved
may bring a civil action in any Federal district court of
competent jurisdiction for such legal or equitable relief
as will effectuate the purposes of this Act.” Id. at 158
(quotation omitted).
A 62-year-old civilian employee of the United States
Department of the Navy filed a civil action under
section 15(c) of the ADEA in the United States District
Court for the District of Columbia and requested a jury
20a
trial. See id. The United States moved to strike the
jury demand. See id. Both the district court and the
United States Court of Appeals for the District of
Columbia Circuit declined to strike the plaintiff’s jury
demand and interpreted section 15(c) to grant the
plaintiff the right to a jury trial. See id. at 158-60.
The Supreme Court granted certiorari and reversed.
See id. at 160-69. In analyzing whether section 15(c)
granted the plaintiff the right to a jury trial, the
Supreme Court began by noting that “[i]t has long
been settled that the Seventh Amendment right to a
trial by jury does not apply in actions against the
Federal Government.” Id. at 160. After all, “under the
common law in 1791,” no person “asserting claims
against the sovereign” had the right to a jury trial. Id.
(quotation omitted).
In Lehman, the Supreme Court acknowledged the
sovereign immunity clear statement canon and its
corollary that “the terms of [the United States’] consent
to be sued in any court define that court’s jurisdiction
to entertain the suit.” Id. (quotation omitted). “Thus, if
Congress waives the Government’s immunity from
suit, as it has in the ADEA, . . . the plaintiff has a right
to a trial by jury only where that right is one of the
terms of the Government’s consent to be sued.” Id. at
161 (cleaned up). “Like a waiver of immunity itself,
which must be unequivocally expressed, this Court has
long decided that limitations and conditions upon
which the Government consents to be sued must be
strictly observed and exceptions thereto are not to be
implied.” Id. (cleaned up) (emphasis added).
As the Supreme Court explained in Lehman, “[w]hen
Congress has waived the sovereign immunity of the
United States, it has almost always conditioned that
waiver upon a plaintiff’s relinquishing any claim to a
21a
jury trial.” Id. “Jury trials, for example, have not been
made available in the Court of Claims for the broad
range of cases within its jurisdiction under 28 U.S.C.
§ 1491 . . . .” Id. “And there is no jury trial right in this
same range of cases when the federal district courts
have concurrent jurisdiction. See 28 U.S.C. §§ 1346(a)(2)
and 2402.” Id. “Finally, in tort actions against the
United States, see 28 U.S.C. § 1346(b), Congress has
similarly provided that trials shall be to the court
without a jury. 28 U.S.C. § 2402.” Id.
After recounting these governing principles, the
Lehman Court analyzed the ADEA to determine
whether section 15(c) granted the plaintiff the right to
a jury trial. Id. at 161-65. First, the Supreme Court
observed that section 7(c) of the ADEA authorized
“civil actions against private employers and state and
local governments, and . . . expressly provide[d] for jury
trials.” Id. at 162 (citing 29 U.S.C. § 626(c) (1976 ed.,
Supp. III)). In contrast, section 15(c) of the ADEA
merely stated that any person aggrieved “may bring a
civil action in any Federal district court of competent
jurisdiction for such legal or equitable relief as will
effectuate the purposes” of the ADEA. Id. Thus, in the
ADEA itself, Congress “demonstrated that it knew
how to provide a statutory right to a jury trial . . .
elsewhere in the very legislation cited.” Id. (cleaned
up). “But in § 15 it failed explicitly to do so.” Id.
(emphasis added).
The Lehman Court declined to “infer[] statutory
intent” to create the right to a jury trial against the
United States “from the language in § 15(c) providing
for the award of ‘legal or equitable relief.’” Id. at 163.
The Lehman Court stated that neither logic nor the
legislative history supported this inference. Id. at 164.
Likewise, Federal Rule of Civil Procedure 38(a) did not
22a
support such an inference given that Rule 38(a)
“requires an affirmative statutory grant of the right
where, as in this case, the Seventh Amendment does
not apply.” Id. at 165; see Fed. R. Civ. P. 38(a).
The Lehman Court held that “it is unnecessary to go
beyond the language of the statute itself to conclude
that Congress did not intend to confer a right to trial
by jury on ADEA plaintiffs proceeding against the
Federal Government.” Lehman, 453 U.S. at 165. Nonetheless, the Lehman Court examined the legislative
history and concluded that Congress did not intend to
grant the right to a jury trial in section 15(c). See id. at
165-68.
The Lehman Court closed by stating that “even if the
legislative history were ambiguous, that would not
affect the proper resolution of this case, because the
plaintiff in an action against the United States has a
right to trial by jury only where Congress has
affirmatively and unambiguously granted that right
by statute.” Id. at 168 (emphasis added). “Congress has
most obviously not done so here.” Id. Thus, the
“conclusion is inescapable that Congress did not
depart from its normal practice of not providing a right
to a trial by jury when it waived the sovereign
immunity of the United States” in actions against the
United States in the ADEA. Id. at 168-69.
Here, in order to resolve the parties’ dispute about
whether to strike plaintiffs’ jury trial demand, this
court must determine whether Congress “unequivocally
expressed” and “affirmatively and unambiguously”
granted the right to a trial by jury in the CLJA and
“clearly and unequivocally” departed from its usual
practice of not permitting a jury trial against the
United States. Id. at 161-62, 168.
23a
III.
Congress must have unequivocally, affirmatively,
and unambiguously provided the right to a trial by
jury in the CLJA in order for plaintiffs to have the
right to a jury trial. The parties dispute whether
Congress unequivocally, affirmatively, and unambiguously granted the right to a trial by jury against the
United States in the CLJA. Compare [D.E. 51-1] 2-7,
and [D.E. 84] 2-6, with [D.E. 66] 1-4, 17-20. The parties
also dispute whether Congress in the CLJA clearly
and unequivocally departed from its usual practice of
permitting only bench trials in civil actions against the
United States.
The parties’ dispute begins with the second sentence
of subsection 804(d), which states “[n]othing in this
subsection shall impair the right of any party to a trial
by jury.” CLJA § 804(d). The dispute then extends to
the first sentence of subsection 804(d), which states
“[t]he United States District Court for the Eastern
District of North Carolina shall have exclusive jurisdiction over any action filed under subsection (b), and
shall be the exclusive venue for such an action.” Id. The
dispute then extends to the remaining text of the CLJA,
canons of construction, the history of trials in civil
actions seeking money damages from the United States
as the defendant, and the CLJA’s legislative history.
Compare [D.E. 51-1], and [D.E. 84], with [D.E. 66].
A.
The court begins with the text of subsection 804(d).
See, e.g., Southwest Airlines Co. v. Saxon, 596 U.S. 450,
457 (2022); Facebook, Inc. v. Duguid, 592 U.S. 395, 40203 (2021). It provides: “The United States District
Court for the Eastern District of North Carolina shall
have exclusive jurisdiction over any action filed under
24a
subsection (b), and shall be the exclusive venue for
such an action. Nothing in this subsection shall impair
the right of any party to a trial by jury.” CLJA § 804(d).
The United States argues that the second sentence in
subsection 804(d) does not “unequivocally express” and
“affirmatively and unambiguously” grant a right to a
trial by jury for actions under subsection 804(b). See
[D.E. 51-1] 3-4; Lehman, 453 U.S. at 160, 168. In
support, the United States cites Lehman and contrasts
the language in the second sentence of subsection
804(d) with two statutes where Congress unequivocally, affirmatively, and unambiguously granted a jury
trial in a civil action against the United States. See
[D.E. 51-1] 4-5. First, 28 U.S.C. § 2402 states that “any
action against the United States [for certain tax
refund claims] . . . shall, at the request of either party
to such action, be tried by the court with a jury.” 28
U.S.C. § 2402. Second, 28 U.S.C. § 3901(b) states that
in certain actions by federal employees against their
executive agency employers, “any party may demand a
jury trial where a jury trial would be available in an
action against a private defendant under the relevant
law.” 28 U.S.C. § 3901(b).
The United States notes the unequivocal, affirmative, and unambiguous grant of the right to a trial by
jury in 28 U.S.C. § 2402 and § 3901(b) and contrasts
that unequivocal, affirmative, and unambiguous statutory language with the negative statutory language in
the second sentence of subsection 804(d). See [D.E. 511] 4-5; [D.E. 84] 3; CLJA § 804(d) (“Nothing in this
subsection shall impair the right of any party to a trial
by jury.”). The United States argues that when Congress
enacted the CLJA, Congress knew that courts presumed
that Congress legislates in light of the Supreme
Court’s canons of construction. See, e.g., U.S. Dep’t of
Energy v. Ohio, 503 U.S. 607, 615 (1992); McNary v.
25a
Haitian Refugee Ctr., 498 U.S. 479, 496 (1991). The
United States then quotes the second sentence of
subsection 804(d) and argues that Congress failed to
unequivocally, affirmatively, and unambiguously grant
plaintiffs the right to a trial by jury in subsection
804(d) for actions under subsection 804(b). See [D.E.
84] 3, 6.
As support for its textual analysis of subsection
804(d), the United States cites not only Lehman but
also Cooper Industries. Inc. v. Aviall Services, Inc., 543
U.S. 157 (2004). In Cooper Industries, the Supreme
Court analyzed section 113(f)(1) of the Comprehensive
Environmental Response, Compensation, and Liability
Act (“CERCLA”). Id. at 165-68. Section 113(f)(1) of
CERCLA is codified at 42 U.S.C. § 9613(f)(1) and
provides:
Any person may seek contribution from any
other person who is liable or potentially liable
under section 9607(a) of this title, during or
following any civil action under section 9606
of this title or under section 9607(a) of this
title. Such claims shall be brought in accordance with this section and the Federal Rules
of Civil Procedure, and shall be governed by
Federal law. In resolving contribution claims,
the court may allocate response costs among
liable parties using such equitable factors as
the court determines are appropriate. Nothing
in this subsection shall diminish the right of
any person to bring an action for contribution
in the absence of a civil action under section
9606 of this title or section 9607 of this title.
42 U.S.C. § 9613(f)(1). The Supreme Court described
the first sentence of section 113(f)(1) as “establish[ing]
the right of contribution” under CERCLA. Cooper Indus.,
26a
Inc., 543 U.S. at 165-66. The Supreme Court held that
the “natural meaning of this sentence is that contribution may only be sought subject to the specified
conditions, namely, ‘during or following’ a specified
civil action” under CERCLA. Id. at 166 (quoting 42
U.S.C. § 9613(f)(1)). The Supreme Court rejected Aviall’s
argument to read the word “may” in the first sentence
of section 113(f)(1) permissively, such that “during or
following a civil action is one, but not the exclusive,
instance in which a person may seek contribution.” Id.
(quotation omitted).
As for the last sentence in section 113(f)(1), the
Supreme Court observed that it states: “[n]othing in
this subsection shall diminish the right of any person
to bring an action . . . under section 9606 of this title or
section 9607 of this title.” Id. at 166 (quoting 42 U.S.C.
§ 9613(f)(1)). The Supreme Court held that “[t]he sole
function of the [last] sentence is to clarify that § 133(f)(1)
does nothing to ‘diminish’ any cause(s) of action for
contribution that may exist independently of § 113(f)(1).”
Id. (quoting 42 U.S.C. § 9613(f)(1)). “In other words, the
[last] sentence rebuts any presumption that the
express right of contribution provided by the enabling
clause is the exclusive cause of action for contribution
available to a PRP.” Id. at 166-67. The last “sentence,
however, does not itself establish a cause of action.” Id.
at 167 (emphasis added). Nor “does it expand § 113(f)(1)
to authorize contribution actions not brought ‘during
or following’ a § 106 or § 107(a) civil action.” Id. “[N]or
does it specify what causes of action for contribution,
if any, exist outside § 113(f)(1),” such as contribution
actions under state law. Id. (emphasis added).
This court construes subsection 804(d) of the CLJA
in the same manner that the Supreme Court construed
the first and last sentence of section 113(f)(1) of CERCLA
27a
in Cooper Industries. The first sentence of subsection
804(d) establishes that the “United States District
Court for the Eastern District of North Carolina” has
the “exclusive jurisdiction over any action filed under
subsection (b), and [has] the exclusive venue for such
an action.” CLJA § 804(d). The second sentence, in
turn, clarifies that the exclusive jurisdiction and
exclusive venue provision in the first sentence of the
subsection does “[n]othing . . . [to] impair the right of
any party to a trial by jury.” Id. As in Cooper
Industries, the second sentence of subsection 804(d)
“does not itself establish” the right to a trial by jury
against the United States for actions under subsection
804(b). Cooper Indus., Inc., 543 U.S. at 167 (emphasis
added). Likewise, as in Cooper Industries, “nor does
[subsection 804(d)] specify” whether the right to a trial
by jury might “exist outside” subsection 804(d). Id.
For the right to a trial by jury to exist against
the United States outside the second sentence of
subsection 804(d), the court would have to locate an
unequivocal, affirmative, and unambiguous right to a
trial by jury in the text of some other part of the CLJA.
See, e.g., Lehman, 453 U.S. at 160-69. The court,
however, already has quoted the CLJA’s entire text. No
part of the CLJA’s text contains an unequivocal,
affirmative, and unambiguous right to a trial by jury
against the United States.
As further support of this textual analysis, the
court notes that the title of subsection 804(d) is
“Exclusive Jurisdiction And Venue.” CLJA § 804(d). A
subsection’s title can provide textual evidence concerning the subsection’s meaning. See, e.g., Yates v. United
States, 574 U.S. 528, 539-40 (2015) (permitting a court
to look to a subsection’s title to interpret a statute);
Almandarez-Torres v. United States, 523 U.S. 224, 234
28a
(1998) (same). Subsection 804(d)’s title provides additional
evidence that (1) Congress intended the first sentence
of subsection 804(d) to establish exclusive jurisdiction
and exclusive venue for all actions under subsection
804(b) in the Eastern District of North Carolina; and
(2) Congress intended the second sentence to clarify
that establishing exclusive jurisdiction and venue in
the Eastern District of North Carolina did “[n]othing”
to “impair the right of any party to a trial by jury” that
may exist outside of subsection 804(d). CLJA § 804(d);
see Yates, 574 U.S. at 539-40; Almandarez-Torres, 523
U.S. at 234. Consistent with the title of subsection
804(d), each sentence in subsection 804(d) concerns the
“[e]xclusive [j]urisdiction [a]nd [v]enue” established in
subsection 804(d). See CLJA § 804(d). Construing the
second sentence of subsection 804(d) to constitute an
unequivocal, affirmative, and unambiguous right to a
trial by jury in an action seeking relief under subsection
804(b) conflicts with the title of subsection 804(d).
The United States argues that Congress sensibly
included the second sentence of subsection 804(d) “in a
more general excess of caution” to alleviate concerns
that establishing exclusive jurisdiction and exclusive
venue in the United States District Court for the
Eastern District of North Carolina might restrict a
party’s otherwise-existing right to a jury trial. [D.E.
51-1] 4 n.1 (quoting Cyan. Inc. v. Beaver Cnty. Emps.
Ret. Fund, 583 U.S. 416, 435 (2018)). The United States
also argues that Congress sensibly included the second
sentence in subsection 804(d) “as it might relate to a
third-party complaint or cross claim.” Id.
Plaintiffs respond that Congress placed the second
sentence in subsection 804(d) in order to accord “with
its basic purpose”—to provide a jury trial to plaintiffs
asserting claims in actions under subsection 804(b).
29a
[D.E. 66] 10. According to plaintiffs, the first sentence
of subsection 804(d)—“The United States District
Court for the Eastern District of North Carolina shall
have exclusive jurisdiction over any action filed under
subsection (b), and shall be the exclusive venue for
such an action.”—concerns which court will resolve all
legal questions under the CLJA (subject to appellate
review). See [D.E. 66] 10. According to plaintiffs, the
second sentence, in turn, clarifies that granting exclusive jurisdiction and venue to the United States
District Court for the Eastern District of North Carolina
does not authorize the court to resolve factual issues
in actions under subsection 804(b). See id. Instead,
according to plaintiffs, a jury must resolve all factual
issues in actions under subsection 804(b). See id.
Moreover, according to plaintiffs, if this court were to
construe the second sentence of subsection 804(d) of
the CLJA not to grant plaintiffs the right to a jury trial
in actions under subsection 804(b), then that statutory
construction “would render [the] entire” second sentence
of subsection 804(d) superfluous. Id. at 11. And if
the court were to adopt such an interpretation of
subsection 804(d), plaintiffs argue that the court would
violate the canon of construction providing that a
“statute should be construed so that effect is given to
all its provisions, so that no part will be inoperative or
superfluous, void or insignificant.” Corley v. United
States, 556 U.S. 303, 314 (2009) (quotation omitted);
Hibbs v. Winn, 542 U.S. 88, 101 (2004).
Plaintiffs also respond to defendant’s contention
about a possible third-party complaint. See [D.E. 66]
12-13. Plaintiffs argue that the applicable statute of
limitations or statute of repose would bar any such
third-party complaint; therefore, such a theoretical
third-party complaint is not a plausible interpretation
of subsection 804(d). See id. According to plaintiffs, a
30a
court cannot plausibly interpret the second sentence of
subsection 804(d) to mean anything other than that
each plaintiff has an unequivocal, affirmative, and
unambiguous right to a jury trial in actions under
subsection 804(b). See id.
The court rejects plaintiffs’ arguments. Congress
sensibly included the sentence “[n]othing in this
subsection shall impair the right of any party to a trial
by jury” to clarify that the “[e]xclusive [j]urisdiction
[a]nd [v]enue” provision in the first sentence does
“[n]othing” to “impair the right of any party to a trial
by jury” that may exist outside subsection 804(d),
including if a party were to file a third-party complaint
in an action under subsection 804(b). CLJA § 804(d);
see Cooper Indus., Inc., 543 U.S. at 164, 166-67. Moreover,
although the United States has yet to file a third-party
complaint, it could learn information during discovery
that creates potential third-party liability for putting
certain chemicals in the water at Camp Lejeune or
potential third-party liability for producing certain
chemicals that entered the water at Camp Lejeune.
The United States could file a third-party complaint in
an action under subsection 804(b) in the Eastern
District of North Carolina to recover money from such
a potentially responsible third party, and the second
sentence of subsection 804(d) clarifies that the “[e]xclusive
[j]urisdiction [a]nd [v]enue” provision in the first sentence
of subsection 804(d) does “[n]othing” to “impair the
right of any party to a trial by jury,” including for
such a third-party complaint. CLJA § 804(d); see, e.g.,
Cooper Indus., Inc., 543 U.S. at 164, 166-67.
In reaching this conclusion, the court rejects plaintiffs’
argument that a statute of limitations or statute of
repose would bar any potential third-party complaint.
Asserting a statute of limitations or a statute of repose
31a
is an affirmative defense. See Fed. R. Civ. P. 8(c)(1). If a
third party failed to assert such a defense, the third
party would forfeit the defense. See, e.g., Hamer v.
Neighborhood Hous. Servs., 583 U.S. 17, 20 n.1 (2017)
(“Forfeiture is the failure to make the timely assertion
of a right.”) (cleaned up); John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 133 (2008) (affirmative
defenses such as a statute of limitations or a statute of
repose must be asserted or are subject to forfeiture);
Day v. McDonough, 547 U.S. 198, 214 (2006) (same).
Moreover, even if the United States has yet to file a
third-party complaint in a CLJA action under subsection
804(b) due to an existing statute of limitations or
statute of repose, Congress could alter an applicable
statute of limitations or statute of repose in order to
permit the United States to seek costs from a potentially responsible third party. 4
The second sentence of subsection 804(d) also clarifies
that if the United States were to assert a counterclaim
for fraud under the common law or the False Claims
Act against a CLJA plaintiff in an action under subsection
804(b), then the “[e]xclusive [j]urisdiction [a]nd [v]enue”
Some state legislatures have enacted laws extending statutes
of limitations in order to give sexual assault, sexual abuse, and
sexual harassment victims more time to file civil actions. See
Ronald V. Miller, Statute of Limitations on Sexual Abuse Cases,
Lawsuit Information Center (Sept. 25, 2023), https://www.laws
uit-information-center.com/statute-of-limitations-on-sexual-abusecases.html; see, e.g., A.R.S. § 13-107(1) (legislation enacted in 2019
in Arizona eliminating the statute of limitations for violent sexual
assault); D.C. Code § 12-301(11) (legislation enacted in 2019 in
the District of Columbia significantly extending the statute of
limitations to permit any victim to file an action to recover for
sexual abuse); 12 V.S.A. § 522 (legislation enacted in 2020 in
Vermont eliminating the statute of limitations on childhood
sexual or physical abuse claims).
4
32a
provision in the first sentence of subsection 804(d)
does “[n]othing” to “impair the right of any party to a
trial by jury” on such a counterclaim. Although the
court hopes that none of the 164,000 administrative
claims that claimants have filed under subsection
804(h) of the CLJA are fraudulent or contain any false
claims or false statements, recent history suggests
that the United States some day may need to assert a
common law fraud counterclaim or a False Claims Act
counterclaim against a plaintiff who files an action in
the Eastern District of North Carolina seeking relief
under subsection 804(b) of the CLJA. See Emily R.
Siegel & Kaustuv Basu, Bogus Claims Threaten to
Taint Camp Lejeune Toxic Water Payouts, Bloomberg
Law News (Oct. 30, 2023); see also In re Deepwater
Horizon, 643 F. App’x 377, 380-81 (5th Cir. 2016) (per
curiam) (unpublished) (discussing the investigation of
fishermen who misrepresented how the oil spill affected
their business and improperly sought to recover money
from the Deepwater Horizon settlement fund); United
States Attorney’s Office, Northern District of Alabama,
Appeals Court Upholds BP Oil Spill Compensation
Fund Fraud Convictions (Jan. 19, 2018), https://www.
justice.gov/usao-ndal/pr/appeals-court-upholds-bp-oilspill-compensation-fund-fraud-convictions (discussing
the criminal prosecution of three family members who
schemed to steal $2 million from the Deepwater
Horizon Oil settlement fund); Ed Crooks, More than
100 jailed for fake BP oil spill claims, Financial Times
(Jan. 15, 2017), https://www.ft.com/content/6428c082dblc-11e6-9d7c-be108flcldce (discussing over 100 people
who were convicted and jailed for making fraudulent
oil spill claims against BP arising from the Deepwater
Horizon settlement fund). The second sentence of subsection 804(d) ensures that “[n]othing” in the “[e]xclusive
[j]urisdiction [a]nd [v]enue” provision of the first
33a
sentence of subsection 804(d) shall “impair the right of
any party to a trial by jury” on such a counterclaim.
Subsection 804(h)’s reference to 28 U.S.C. § 2675
adds another textual clue to support the conclusion
that the second sentence of subsection 804(d) clarifies
that the “[e]xclusive [j]urisdiction [a]nd [v]enue” provision
in subsection 804(d) does “[n]othing” to “impair the
right of any party to a trial by jury” that may exist
outside subsection 804(d), including for a third-party
complaint or a counterclaim. See CLJA § 804(h) (“An
individual may not bring an action under this section
before complying with section 2675 of title 28, United
States Code.”). Tellingly, 28 U.S.C. § 2675(a) explicitly
states that “[t]he provisions of this subsection [requiring
administrative exhaustion] shall not apply to such
claims as may be asserted under the Federal Rules of
Civil Procedure by third party complaint, cross-claim,
or counterclaim,” 5 and subsection 804(h) incorporates
28 U.S.C. § 2675(a). See CLJA § 804(h). Thus, the CLJA
textually contemplates third-party complaints and
counterclaims.
The second sentence of subsection 804(d) clarifies
that the “[e]xclusive [j]urisdiction [a]nd [v]enue” provision
in the first sentence of subsection 804(d) does “[n]othing
. . . [to] impair the right of any party to a trial by jury”
that may exist outside of subsection 804(d), including
for a third-party complaint or a counterclaim. This
work “may not be very heavy work for the [second
sentence of subsection 804(d)] to perform, but a job is
a job, and enough to bar the rule against redundancy
from disqualifying an otherwise sensible reading.”
Polselli v. I.R.S., 143 S. Ct. 1231, 1239 (2023) (quoting
Guiterrez v. Ada, 528 U.S. 250, 258 (2000)); see Nielsen
5
28 U.S.C. § 2675(a).
34a
v. Preap, 139 S. Ct. 954, 969 (2019) (a clause that “still
has work to do” is not superfluous). Thus, the court
rejects plaintiffs’ argument that its construction of
subsection 804(d) renders the second sentence of
subsection 804(d) superfluous.
B.
Plaintiffs concede that in order for them to obtain a
jury trial in their CLJA actions under subsection
804(b), Congress must have “unequivocally expressed”
in the CLJA’s “statutory text” their right to a jury trial.
See [D.E. 66] 3-4, 7. In support of their argument,
plaintiffs cite the text of the second sentence in
subsection 804(d) and then attempt to distinguish
Lehman, where the Court held that Congress had not
“unequivocally expressed” in the statutory text the
right to a trial by jury against the United States when
it amended the ADEA in 1974. See [D.E. 66] 6-8.
Plaintiffs also cite Galloway v. United States, 319 U.S.
372 (1943), and argue that the Supreme Court found
the right to a trial by jury against the United States
“based solely on an inference from a statute’s amendment history, without any express textual reference to
jury trials at all.” [D.E. 66] 4; see id. at 5-6. Plaintiffs
then argue that, unlike the statute found sufficient in
Galloway, the plain text of the second sentence in
subsection 804(d) unequivocally expresses their right
to a trial by jury. See id.
The court already described Lehman at length. The
court recognizes the difference between the text of
section 15(c) of the ADEA found insufficient to unequivocally, affirmatively, and unambiguously provide plaintiffs
the right to a trial by jury against the United States
and the text of the CLJA. Nonetheless, as discussed,
the Supreme Court’s analysis in Lehman provides a
35a
large part of the analytic framework that helps to
resolve the parties’ dispute.
As for Galloway, Galloway cannot bear the weight
that plaintiffs place on it. In Galloway, the Supreme
Court affirmed the Ninth Circuit’s judgment affirming
the district court’s decision to grant a directed verdict
to the United States pursuant to Federal Rule of Civil
Procedure 50. See Galloway, 319 U.S. at 373-74. The
dispute arose under an insurance policy issued pursuant
to the War Risk Insurance Act, as amended. See id. at
372 n. 1. Galloway filed an action in district court
seeking benefits “for total and permanent disability by
reason of insanity he claims existed [since] May 31,
1919.” Id. at 372. The disability allegedly arose due to
Galloway’s military service during World War I. See id.
at 373-82. At the close of all the evidence, the district
court granted the government’s motion for a directed
verdict. See id. at 373. The Ninth Circuit affirmed.
See id.
The Supreme Court in Galloway began by exhaustively discussing the evidence. See id. at 373-82. It then
held that the district court properly directed a verdict
under Rule 50 in favor of the government because,
even viewing the evidence in the light most favorable
to Galloway, no reasonable jury could find that he was
totally and permanently disabled as of May 31, 1919.
See id. at 382-88. Thus, he was not entitled to
insurance benefits under the policy. See id.
The Supreme Court in Galloway could have ended
its analysis at that point. It did not. Instead, it stated,
“[w]hat has been said disposes of the case as the
parties have made it.” Id. at 388. “For that reason
perhaps nothing more need be said.” Id. Failing to heed
its own observation, the Supreme Court then said,
“[b]ut objection has been advanced that, in some
36a
manner not wholly clear, the directed verdict practice
offends the Seventh Amendment.” Id. The Supreme
Court then explored whether the directed verdict
practice in federal court under Rule 50 offended the
Seventh Amendment and held that it did not. See id.
at 388-96.
As part of its ensuing discussion, the Supreme Court
in Galloway stated that the Seventh Amendment did
not provide a right to a jury trial to “enforce a monetary claim against the United States” and “persons
asserting claims against the sovereign” lacked the
right to a jury trial at common law in 1791. Id. at 388.
The Supreme Court then stated, “[w]hatever force the
[Seventh] Amendment has therefore is derived because
Congress in the legislation cited has made it applicable.” Id. at 388-89 (footnote omitted). The Supreme
Court then added footnote 18 to explain “the legislation cited” as the statutory source of Galloway’s right
to a jury trial. See id. at 389 n.18. In footnote 18, the
Supreme Court observed that when Congress first
enacted legislation to permit “suits on War Risk
Insurance policies,” Congress “did not explicitly make
them triable by jury.” Id. The Supreme Court then
stated that Congress amended the act in 1925 to
permit such suits “with the intention to ‘give the
claimant the right to a jury trial.’” Id. (quoting H.R.
Rep. No. 1518, 68th Cong., 2d Sess., 2). In support of
this conclusion, the Supreme Court cited Pence v.
United States, 316 U.S. 332, 334 (1942), for the
proposition that Congress amended the War Risk
Insurance Act in 1925 to permit claimants seeking
relief as policy beneficiaries to have the right to a jury
trial. See Galloway, 319 U.S. at 389 n.18.
37a
In Pence, the Supreme Court relied on four federal
circuit court decisions6 and a House Report7 to conclude
that Congress granted the right to a jury trial in 1925
in actions against the United States to recover insurance benefits under War Risk Insurance policies when
it amended the World War Veterans’ Act to remove a
statutory provision expressly incorporating Section 2
of the Tucker Act, which provided for trials in United
States District Courts without a jury. See Pence, 316
U.S. at 334 n.1; see also Hacker, 16 F.2d at 703-04
(tracing the Act’s statutory evolution, including
Congress’s initial silence on the right to a jury trial in
the Act in 1914, Congress’s continued silence on the
right to a jury trial in the Act in a 1917 amendment,
Congress’s express incorporation in the Act of a trial
without a jury requirement in a 1924 amendment, and
Congress’s 1925 removal from the Act of Congress’s
express 1924 incorporation of a trial without a jury
requirement). After the 1925 amendment, the War
Risk Insurance Act, as amended, was silent on whether
claimants had the right to a jury trial against the
United States, but the Pence Court relied on the
statutory evolution and the 1925 House Report to
conclude that claimants had the right to a trial by
jury against the United States in actions to recover
United States v. Green, 107 F.2d 19, 21 (9th Cir. 1939); United
States v. Salmon, 42 F.2d 353, 354 (5th Cir. 1930); Hacker v.
United States, 16 F.2d 702, 703-04 (5th Cir. 1927); Whitney v.
United States, 8 F.2d 476, 476-78 (9th Cir. 1925).
6
H.R. Rep. No. 1518, 68th Cong., 2d Sess., p.2 (“Section 4 of the
bill amends section 19 of the World War veterans’ act relating to
suits on contracts of insurance. In effect[,] the amendment will
give the claimant the right to a jury trial, thus differing from the
ordinary judicial procedure in suits on claims against the United
States where the United States district courts have concurrent
jurisdiction with the Court of Claims.”).
7
38a
insurance benefits under War Risk Insurance policies.
Pence, 316 U.S. at 334 n.1; see Galloway, 319 U.S. at
389 n.18. The Galloway Court relied on Pence as
binding precedent to conclude that “the legislation
cited” included the right to a jury trial. Galloway, 319
U.S. at 389 & n.18.
Plaintiffs cite Galloway and argue that if the statute
at issue in Pence and Galloway suffices to create the
right to a jury trial, then subsection 804(d) suffices to
create the right to a jury trial in the CLJA. See [D.E.
66] 5-6. The court disagrees. First, the Galloway Court
provided no statutory interpretation itself concerning
the War Risk Insurance Act, as amended. See Galloway,
319 U.S. at 389 & n.18. Rather, the Galloway Court
relied on Pence as binding precedent to conclude that
the War Risk Insurance Act, as amended, included the
right to a jury trial against the United States. See id.
Second, to the extent plaintiffs rely on the statutory
interpretation in Pence, the statutory evolution of the
War Risk Insurance Act, as amended, distinguishes
that statute from the CLJA. Unlike the War Risk
Insurance Act, as amended, Congress never enacted
the CLJA without any right to a jury trial, then
amended the CLJA and remained silent on the topic,
then amended the CLJA to add an express statutory
provision providing for trials in the district courts
without a jury, and then amended the CLJA for a third
time to remove the express statutory provision
providing for trials without a jury and left the CLJA
silent on whether claimants had the right to a trial by
jury on claims under subsection 804(b) of the CLJA.
Instead, Congress simply enacted the CLJA, including
subsection 804(d), with the knowledge that courts
presume Congress legislates in light of the Supreme
Court’s canons of construction. See, e.g., U.S. Dep’t of
39a
Energy, 503 U.S. at 615; McNary, 498 U.S. at 496. Thus,
Galloway is distinguishable.
As explained, under Lehman, Cooper Industries,
and the governing canons of construction, the CLJA
(including subsection 804(d)) does not unequivocally,
affirmatively, and unambiguously provide plaintiffs
the right to a jury trial in actions under subsection
804(b) of the CLJA. Accordingly, the court declines
plaintiffs’ invitation to use the result in Galloway to
supplant the CLJA’s text and applicable canons of
construction. 8
To the extent that plaintiffs argue that the Lehman
Court’s quotation of Galloway about actions to recover
benefits under insurance policies issued pursuant to
the War Risk Insurance Act, as amended, means
that a court can infer the right to a jury trial against
the United States without unequivocal, affirmative,
and unambiguous statutory text, Lehman defeats the
argument. See Lehman, 453 U.S. at 160-69. Notably,
courts have applied Lehman (and not Galloway) to
numerous federal statutes and held that the statutes
did not grant plaintiffs the right to a jury trial against
the United States. See, e.g., In re Dombrowski, No. 211292, 2021 WL 5562286, at *1 (6th Cir. Sept. 24, 2021)
(unpublished) (claim under 28 U.S.C. § 2410(a)(1));
Greene v. Sec. of HHS, 841 Fed. App’x 195, 204 (Fed.
Cir. 2020) (per curiam) (unpublished) (claim under 42
U.S.C. § 30aa-12); Brott v. United States, 858 F.3d 425,
436-37 (6th Cir. 2017) (claim under 28 U.S.C. §§ 174,
Although Galloway and Pence remain binding precedent in
construing the War Risk Insurance Act, as amended, the Galloway
Court’s and Pence Court’s statutory interpretation harkens back
to an “ancien regime” of statutory interpretation that the Supreme
Court no longer uses. Alexander v. Sandoval, 532 U.S. 275, 287
(2001).
8
40a
2402); Gunter v. Farmers Ins. Co., 736 F.3d 768, 773
(8th Cir. 2013) (breach of contract claim under insurance
policy issued under the National Flood Insurance
Program); Grissom v. Liberty Mut. Fire Ins. Co., 678
F.3d 397, 401-02 (5th Cir. 2012) (same); Thomas Inv.
Partners, Ltd. v. United States, 444 F. App’x 190, 193
(9th Cir. 2011) (unpublished) (claim under 26 U.S.C.
§ 6226); Wilson v. Big Sandy Health Care, Inc., 576 F.3d
329, 333 (6th Cir. 2009) (claim under 42 U.S.C. § 233);
Parker v. Astrue, 298 F. App’x 701, 702-03 (10th Cir.
2008) (unpublished) (claim under 42 U.S.C. § 405(g));
Wesleyan Corp. v. U.S. Postal Serv., 178 F. App’x 342,
343 n.3 (5th Cir. 2006) (per curiam) (unpublished)
(breach of contract claim against U.S. Postal Service);
Holmes v. Potter, 384 F.3d 356, 362 (7th Cir. 2004)
(same); Davis v. Henderson, 238 F.3d 420, 2000 WL
1828476, at *2 (6th Cir. 2000) (unpublished table
decision) (FMLA claim against Postmaster General);
Bowden v. United States, 176 F.3d 552, 555-56 (D.C.
Cir. 1999) (breach of contract claim against United
States); Crawford v. Runyon, 79 F.3d 743, 744 (8th Cir.
1996) (claim under 29 U.S.C. § 794 against Postmaster
General); KLK. Inc. v. U.S. Dep’t of the Interior, 35 F.3d
454, 456-57 (9th Cir. 1994) (claim under 16 U.S.C.
§1910); Info. Res.. Inc. v. United States, 996 F.2d 780,
783 (5th Cir. 1993) (claim under 26 U.S.C. §§ 7432-33);
In re Young, 869 F.3d 158, 159 (2d. Cir. 1989) (per
curiam) (claim under 39 U.S.C. § 401(1)); Washington
Intl Ins. Co. v. United States, 863 F.2d 877, 878-79 (Fed.
Cir. 1988) (claim under 28 U.S.C. § 1876); York v. Russo,
835 F.2d 876, 1987 WL 24475, at *1 (4th Cir. 1987)
(unpublished table decision) (ADEA claim against
Defense Logistics Agency).
Plaintiffs concede that the second sentence of
subsection 804(d) is phrased in the negative. Plaintiffs
argue, however, that the negative structure parallels
41a
certain provisions of the Bill of Rights including the
Second Amendment, 9 the Fourth Amendment 10 and
the Seventh Amendment 11 and argue that the court
should construe subsection 804(d) to affirmatively
grant them the right to a jury trial. See [D.E. 66] 10.
The text of the Second, Fourth, and Seventh
Amendments is materially different than the text of
subsection 804(d). Moreover, the Second, Fourth, and
Seventh Amendments are not subject to the corollary
of the sovereign immunity clear statement canon and
the other canons that apply in this case. As Lehman,
Cooper Industries, and this court’s textual analysis
demonstrate, subsection 804(d) does not unequivocally,
9
The Second Amendment states:
A well regulated Militia, being necessary to the
security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.
U.S. Const., amend. II.
10
The Fourth Amendment states:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const., amend. IV.
11
The Seventh Amendment states:
In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried by
a jury, shall be otherwise re-examined in any Court
of the United States, than according to the rules of
the common law.
U.S. Const., amend. VII.
42a
affirmatively, and unambiguously provide plaintiffs the
right to a trial by jury in actions under subsection
804(b). 12
C.
The parties dispute how the history of tort litigation
against the United States since the 1946 enactment of
the FTCA should inform this court’s analysis. The
United States argues that the history of such tort
litigation against the United States conflicts with
reading the second sentence in subsection 804(d) of the
CLJA to create the right to a jury trial for potentially
hundreds of thousands of actions under subsection
804(b) of the CLJA in the Eastern District of North
Carolina. See [D.E. 51-1] 5-6. According to the United
States, Congress largely relied on the framework in
28 U.S.C. § 1346(b) in drafting the CLJA. See id. Part
of that framework recognized that when Congress
created “a narrow exception to permit jury trials in
tax refund cases . . . under 28 U.S.C. § 1346(a)(1),”
Congress did so “[o]nly after much debate, and after
the conferees became convinced that there would be no
danger of excessive verdicts as a result of jury trials in
that unique context—because recoveries would be
limited to the amount of taxes illegally or erroneously
collected—was the bill passed.” Lehman, 453 U.S. at
161 n.8 (citation omitted).
Plaintiffs also cite dicta in Judge Dever’s opinion in Cline v.
United States, No. 7:22-CV-141, 2022 WL 17823926, at *2 (E.D.N.C.
Dec. 20, 2022) (unpublished), in support of their argument. See
[D.E. 66] 19. Judge Dever disclaims that dicta. Cf. Henslee v.
Union Planters Nat’l Bank & Tr. Co., 335 U.S. 595, 600 (1949)
(Frankfurter, J., dissenting) (“Wisdom too often never comes, and
so one ought not to reject it merely because it comes late.”).
12
43a
Plaintiffs respond that Congress enacted the CLJA
aware that the general presumption was that a plaintiff
would not get a jury trial against the United States in
an action under the FTCA and expressly acted to
reverse that presumption by adding the second
sentence of subsection 804(d) of the CLJA. See [D.E.
66] 13-16; cf. 28 U.S.C. § 2402 (“Subject to chapter 179
of this title, any action against the United States
under section 1346 shall be tried by the court without
a jury, except that any action against the United
States under section 1346(a)(1) shall, at the request of
either party to such action, be tried by the court with
a jury.”). Plaintiffs also argue that the United States
improperly asks the court to apply a “magic words” test
to the CLJA and that the United States’ argument
ignores that Congress adopted some FTCA provisions
in the CLJA but expressly failed to incorporate the
express bar on jury trials in 28 U.S.C. § 2402. See [D.E.
66] 14-16 (discussing Amy Coney Barrett, Substantive
Canons and Faithful Agency, 90 B.U. L. Rev. 109, 16667 (2010)).
The parties’ arguments about the history of tort
litigation against the United States since the 1946
enactment of the FTCA miss the larger point. Congress
could have made this dispute easy to resolve. Congress
could have added a variant of the first sentence of 28
U.S.C. § 2402 and unequivocally, affirmatively, and
unambiguously stated in a subsection of the CLJA
entitled “Bench Trials In Actions Against The United
States” a sentence: “Any action against the United
State under subsection 804(b) shall be tried by the
court without a jury.” Likewise, Congress could have
added a variant of the last clause of 28 U.S.C. § 2402
and unequivocally, affirmatively, and unambiguously
stated in a subsection of the CLJA entitled “Jury Trials
In Actions Against The United States” a sentence: “Any
44a
action against the United States under subsection
804(b) shall, at the request of either party to such
action, be tried by the court with a jury.”
Congress did not provide this court with such clarity
in the CLJA. As discussed, however, Congress enacted
the CLJA with the understanding that courts presume
that Congress legislates in light of the Supreme
Court’s canons of construction. See, e.g., U.S. Dep’t of
Energy, 503 U.S. at 615; McNary, 498 U.S. at 496.
Those canons of construction include the sovereign
immunity clear statement canon and its corollary that
“the terms of [the United States’] consent to be sued in
any court define that court’s jurisdiction to entertain
the suit.” Lehman, 453 U.S. at 160 (quotation omitted).
And the text of the CLJA and those canons of
construction provide the answer to the question of
whether the CLJA unequivocally, affirmatively, and
unambiguously provides plaintiffs the right to a trial
by jury in actions under subsection 804(b) of the CLJA.
The answer to that question is that the CLJA does not.
As for plaintiffs’ argument that the United States
improperly seeks to impose a “magic words” test, the
court rejects the argument. In the article by thenProfessor Barrett that plaintiffs cite, Professor Barrett
extensively discussed “The Sovereign Immunity Clear
Statement Rules” and observed that Justice Story,
federal courts, and American treatise writers identified
this “principle of statutory interpretation” from the
founding. Amy Coney Barrett, Substantive Canons
and Faithful Agency, 90 B.U. L. Rev. at 145, 148.
Professor Barrett also discussed the unbroken
Supreme Court precedent holding that it “would only
interpret a statute to waive federal sovereign immunity
where the express language or necessary implication
of the statute evidenced Congress’s intent to accomplish
45a
that result.” Id. at 149-50. Professor Barrett closed by
observing that given the age of the rule, “it would be
inaccurate to characterize the sovereign immunity
clear statement rule as having been fashioned from
whole cloth in the twentieth century.” Id. at 150. It is
“better understood as a conscious application of a timehonored rule of sovereign exemption to a new kind of
incursion on sovereignty.” Id. Thus, far from applying
a “magic words” test in this case, the United States and
this court properly rely on an unbroken sovereign
immunity clear statement canon and its corollary that
have applied since the founding.
D.
The parties dispute how legislative history should
inform the court’s analysis. The United States argues
that “[g]iven the plain language of [subsection] 804(d)
and the applicable legal principles, there is no need to
resort to legislative history.” [D.E. 51-1] 6. The United
States also observes that “‘legislative history generally
will be irrelevant’ in determining whether sovereign
immunity has been waived because such a waiver
must be ‘unmistakably clear in the language of the
statute.’” Id. (quoting Dellmuth, 491 U.S. at 230 (citation
omitted)); see Lehman, 453 U.S. at 165. Thus, the
United States argues that plaintiffs cannot use legislative history to help show whether the CLJA’s text
unequivocally, affirmatively, and unambiguously grants
plaintiffs the right to a jury trial. See [D.E. 51-1] 6.
Alternatively, the United States argues that the
CLJA’s legislative history does not reflect an unequivocal,
affirmative, and unambiguous right to a jury trial. See
id. In support, the United States notes that one of the
members of the House of Representatives who wrote
and introduced the CLJA stated that the CLJA permits
claims against the United States “under the Federal
46a
Tort Claims Act,” which does not permit a jury trial. a;
see [D.E. 34] 10; 28 U.S.C. § 2402. The United States
also notes that Representative Cartwright (a co-sponsor
of the CLJA in the House) co-sponsored a separate
piece of legislation on July 31, 2014, entitled the
“Service Members Access to Justice Act of 2014.” See
[D.E. 84] 5; [D.E. 84-1]. In that proposed legislation
(unlike in the CLJA), Representative Cartwright unequivocally, affirmatively, and unambiguously provided the
right to a trial by jury against sovereign States. See
[D.E. 84-1] 9 (“A person who commences an action
under this section shall be entitled to a trial by jury.”);
id. at 3-4 (creating cause of action against a State and
waiving a State’s sovereign immunity).
In discussing the CLJA’s legislative history, the
United States acknowledges that the United States
Department of Justice submitted “Technical Assistance”
to the Senate Committee on Veterans Affairs before
Congress enacted the CLJA. See [D.E. 51-1] 6 n.2. In
that Technical Assistance, the Department of Justice
advocated for an alternative “no-fault compensation
scheme” instead of the CLJA and identified several
concerns about litigating CLJA action in federal court.
[D.E. 51-2] 2-5; see [D.E. 84] 10. Those concerns
included a statement in one section of the Technical
Assistance commenting on the CLJA and initially
stating:
While the bill aims to make recovery more
likely by removing certain federal defenses
and lowering relevant burdens, the bill still
requires those injured . . . to first file administrative claims with the Department of
Defense, then file a lawsuit in district court,
then prove causation and damages (potentially
47a
before a jury), and then withstand a potential
appeal.
[D.E. 51-2] 3 (emphasis added). Later, the Technical
Assistance stated:
[W]e worry that Section 706, as currently
drafted, would result in differing recoveries to
similarly situated plaintiffs. Especially if
damages awards are to be decided by a jury,
as the statute contemplates, it is likely that
litigation will produce a broad range of
remedial outcomes even among plaintiffs who
have suffered similar harms.
Id. (emphasis added). The Technical Assistance then
discussed the resource drain that the CLJA would
have on plaintiffs, the Department of Justice, and the
Eastern District of North Carolina. See id. at 4. The
Technical Assistance then advocated for a non-adversarial
compensation program for those injured at Camp
Lejeune. See id. at 4-5.
Plaintiffs cite the Technical Assistance and argue
that the legislative history “confirm[s]” that Congress
intended the second sentence of subsection 804(d) to
create the right to a jury trial for actions filed under
subsection 804(b) of the CLJA. [D.E. 66] 17-18. Plaintiffs
also note that on November 1, 2023, which is over one
year after the CLJA became effective, Congressman
Cartwright and Congressman Murphy (both House cosponsors of the CLJA) entered a statement in the
Congressional Record that “‘it has always been our
intent for the [CLJA] to stand separate and apart from
the [FTCA] in all respects,’ including by providing a
right to a jury trial against the United States.” [D.E.
51-1] 7 (quoting 169 Cong. Rec. E1036 (daily ed. Nov.
1, 2023)); see [D.E. 66] 16, 19-20.
48a
The United States responds that its “preliminary”
and “imprecise[]” assumptions in the Technical Assistance
conflicted with “pre-enactment statements from [House]
Members that the CLJA permits claims against the
United States” under the FTCA. [D.E. 51-1] 6 n.2
(citing [D.E. 34] 10); cf. 28 U.S.C. § 2402. The United
States also argues that “absent unambiguous text,
‘recourse to legislative history is futile.’” Id. (quoting
Dellmuth, 491 U.S. at 240). Finally, the United States
argues that the court should not consider Congressman
Cartwright and Congressman Murphy’s “post-enactment
legislative history,” because “by definition, [it] ‘could have
had no effect on the congressional vote.’” [D.E. 51-1] 7
(emphasis omitted) (quoting Bruesewitz v. Wyeth LLC,
562 U.S. 223, 242 (2011)).
The court has considered the parties’ arguments
about legislative history. As in Lehman, the court need
not “go beyond the language of the statute itself to
conclude that Congress did not intend to confer a right
to trial by jury on [CLJA] plaintiffs proceeding against
the Federal Government.” Lehman, 453 U.S. at 165.
Alternatively, even if the court considers the legislative history, the court finds it ambiguous. Moreover, the
court declines to rely on the CLJA’s ambiguous legislative history to determine whether the CLJA’s text
unequivocally, affirmatively, and unambiguously provides
plaintiffs the right to a jury trial in actions seeking
relief under subsection 804(b). Cf. Conroy v. Aniskoff,
507 U.S. 511, 519 (1993) (Scalia, J., concurring)
(observing that the reliance on legislative history
resembles a person who enters “a crowded cocktail
party” and looks for friends). Likewise, the postenactment legislative statements of Congressman
Cartwright and Congressman Murphy are “not a
legitimate tool of statutory interpretation,” and the
court declines to rely on them. United States v. Woods,
49a
571 U.S. 31, 48 (2013) (quotation omitted); see
Bruesewitz, 562 U.S. at 242.
IV.
In sum, the court GRANTS defendant’s motion to
strike the jury trial demand in plaintiffs’ master
complaint [D.E. 51].
SO ORDERED. This 6 day of February 2024.
/s/ Richard E. Myers II
RICHARD E. MYERS II
Chief United States District Judge
/s/ Louise W. Flanagan
LOUISE W. FLANAGAN
United States District Judge
/s/ Terrence W. Boyle
TERRENCE W. BOYLE
United States District Judge
/s/ James C. Dever III
JAMES C. DEVER III
United States District Judge
50a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
[Filed: October 4, 2024]
————
No. 24-1542
(7:23-cv-00897-RJ)
(7:23-cv-00532-M-RJ)
(7:23-cv-00202-D-BM)
————
In re: SUSAN MCBRINE; DAVID L. PETRIE
Petitioners
————
ORDER
The court denies the petition for rehearing and
rehearing en banc. No judge requested a poll under
Fed. R. App. P. 35 on the petition for rehearing en banc.
Entered at the direction of the panel: Judge Wynn
and Judge Benjamin acting as a quorum pursuant to
28 U.S.C. § 46(d).
For the Court
/s/ Nwamaka Anowi, Clerk
51a
APPENDIX E
SEC. 804. FEDERAL CAUSE OF ACTION RELATING TO WATER AT CAMP LEJEUNE, NORTH
CAROLINA.
(a) SHORT TITLE.—This section may be cited as the
“Camp Lejeune Justice Act of 2022”.
(b) IN GENERAL.—An individual, including a veteran
(as defined in section 101 of title 38, United States
Code), 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.
(c) BURDENS AND STANDARD OF PROOF.—
(1) IN GENERAL.—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.
(2) STANDARDS.—To meet the burden of proof
described in paragraph (1), a party shall produce
evidence showing that the relationship between
exposure to the water at Camp Lejeune and the
harm is—
(A) sufficient to conclude that a causal relationship exists; or
(B) sufficient to conclude that a causal relationship is at least as likely as not.
52a
(d) EXCLUSIVE JURISDICTION AND VENUE.—The United
States District Court for the Eastern District of North
Carolina shall have exclusive jurisdiction over any
action filed under subsection (b), and shall be the exclusive venue for such an action. Nothing in this subsection
shall impair the right of any party to a trial by jury.
(e) EXCLUSIVE REMEDY.—
(1) IN GENERAL.—An individual, or legal representative of an individual, who brings an action
under this section for a harm described in subsection
(b), including a latent disease, may not thereafter
bring a tort action against the United States for such
harm pursuant to any other law.
(2) HEALTH AND DISABILITY BENEFITS RELATING TO
WATER EXPOSURE.—Any award made to an individual,
or legal representative of an individual, under this
section shall be offset by the amount of any
disability award, payment, or benefit provided to the
individual, or legal representative—
(A) under—
(i) any program under the laws administered
by the Secretary of Veterans Affairs;
(ii) the Medicare program under title XVIII of
the Social Security Act (42 U.S.C. 1395 et seq.);
or
(iii) the Medicaid program under title XIX of
the Social Security Act (42 U.S.C. 1396 et seq.);
and
(B) in connection with health care or a disability
relating to exposure to the water at Camp Lejeune.
(f) IMMUNITY LIMITATION.—The United States may
not assert any claim to immunity in an action under
53a
this section that would otherwise be available under
section 2680(a) of title 28, United States Code.
(g) NO PUNITIVE DAMAGES.—Punitive damages may
not be awarded in any action under this section.
(h) 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.
(i) EXCEPTION FOR COMBATANT ACTIVITIES.—This
section does not apply to any claim or action arising
out of the combatant activities of the Armed Forces.
(j) APPLICABILITY; PERIOD FOR FILING.—
(1) APPLICABILITY.—This sect
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