Freshwater v. United States

CourtDistrict Court, E.D. North Carolina
DecidedFebruary 14, 2023
Docket7:22-cv-00161
StatusUnknown

This text of Freshwater v. United States (Freshwater v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freshwater v. United States, (E.D.N.C. 2023).

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA

CATHLENE BREWER, JEFFREY ) HOPKINS, JAMES T. MAXWELL, SHERRY )_ Civil Action No. 7:22-cv-00150-M-BM A. MILLER, GENA M. PARKHURST ) ) Plaintiffs, ) ) V. ) ) UNITED STATES OF AMERICA, ) ) Defendant. )

LORI LYNN FRESHWATER, individually ) and as Executor of the Estate of Mary ) Civil Action No. 7:22-cv-00161-M-RN Freshwater, ) ) Plaintiff, ) ) V. ) ) UNITED STATES OF AMERICA, ) ) Defendant. )

ORDER OF DISMISSAL These matters come before the court on the Defendant’s motions seeking dismissal of the above-captioned actions for the court’s lack of subject-matter jurisdiction to hear the Plaintiffs’ claims against Defendant under the Camp Lejeune Justice Act of 2022, Pub. L. No. 117-168, § 804, 136 Stat. 1802 (2022) (“CLJA” or “Act’”) [DE 15]. Defendant argues that the Plaintiffs have failed to exhaust administrative remedies required by the CLJA, and Plaintiffs counter that they already have exhausted under 28 U.S.C. § 2675 and need not do so again. On January 3, 2023, this court adopted the findings and analysis of an order issued by the Honorable James C. Dever lI in Fancher v. United States, __ F. Supp. 3d __, No. 5:22-CV-315-D, 2022 WL 17842896

(E.D.N.C. Dec. 20, 2022), which addressed largely the same arguments presented by the parties in the above-captioned cases and, for additional reasons discussed below, informed these parties that the court lacks subject-matter jurisdiction to hear Plaintiffs’ claims.! The Plaintiffs here, like those in other cases before the undersigned and before other judicial officers, filed actions in this court under the CLJA immediately after the law was enacted. Plaintiffs believe they have complied with the statutory requirement to exhaust administrative remedies under § 804(h), because they have previously presented their claims for personal injury due to contaminated water at Camp Lejeune directly to the Department of the Navy and those claims were denied “finally” by 2019 and on reconsideration in August 2022. Defendant moves for dismissal contending that, were the court to accept Plaintiffs’ argument, it would effectively “nullify” the administrative exhaustion requirement by failing to permit the Navy to attempt to resolve claims without resort to litigation. Defendant asserts that its assessment of its liability on pre-CLJA claims (i.e., claims under the Federal Tort Claims Act or “FTCA”) was based entirely on jurisdictional grounds that have been abrogated by the CLJA; thus, its prior assessments did not include evaluations of the merits of each claim. Now that those defenses have been removed, Defendant asserts that it should have the opportunity to attempt to resolve the claims “under the standards of the CLJA” before litigation commences, as anticipated by the Act. Defendant notes that several of the plaintiffs who have filed litigation since the enactment of the CLJA have also filed “new” claims with the Navy. Plaintiffs counter that the plain text of § 804, including that the Act applies not to “new” but to “preexisting” claims, supports their position. Plaintiffs further assert that the structure and

addition to legal and factual findings made here, the court gratefully incorporates those cogently stated by Judge Dever in his opinion. See Fancher, 2022 WL 17842896.

a broad construction of the Act demonstrate that they need not re-file their administrative claims with the Navy. Plaintiffs argue that Defendant fails to rebut the plain text of the CLJA, which does not “disqualify pre-CLJA exhausted claims.” Plaintiffs also contend they will suffer prejudice in an “additional” six-month delay in commencing litigation against Defendant. Further, Plaintiffs argue that Defendant’s choice to rely on jurisdictional defenses when their administrative claims were previously presented should not excuse Defendant from conducting an adequate investigation into the merits of the claims at that time, as contemplated by the FTCA. Finally, Plaintiffs assert that Defendant’s statistics regarding claims filed since enactment of the CLJA “have no bearing whatsoever on the proper interpretation of the CLJA.”” The court finds Plaintiffs have failed to exhaust administrative remedies under the CLJA; therefore, the court lacks subject-matter jurisdiction in this case and Plaintiffs’ claims must be dismissed without prejudice. The CLJA requires exhaustion through the claims procedure outlined in the FTCA, 28 U.S.C. § 2675(a), and the requirement to file such administrative claim “is jurisdictional and may not be waived.” Penn Millers Ins. Co. v. United States, 472 F. Supp. 2d 705, 710 (E.D.N.C. 2007) (citing Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990) and Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000)). Simply put, the CLJA did not exist in previous years when Plaintiffs filed their claims and, thus, the Navy could not have disposed of Plaintiffs’ CLJA claims before they brought them in this litigation. See CLJA, § 804(h).

2 The court notes that the plaintiffs in all CLJA cases currently assigned to the undersigned judicial officer made essentially the same or very similar arguments in support of their positions on this issue. Likewise, Plaintiff Freshwater asserted the same arguments, as well as an additional argument concerning application of the “same operative facts” test. See DE 20 at 16-18. For the reasons stated herein, the court finds that application of such test to a new CLJA claim misplaced.

Whether a plaintiff must file an administrative claim with the Navy—regardless of whether the plaintiff has previously exhausted the administrative process for an FTCA claim—before filing a lawsuit under the CLJA is a question of statutory interpretation. As the Fourth Circuit instructs, “Tolur objective in all cases of statutory interpretation is ‘to ascertain and implement the intent of Congress.’” Broughman v. Carver, 624 F.3d 670, 674-75 (4th Cir. 2010) (quoting Scott v. United States, 328 F.3d 132, 138 (4th Cir. 2003)). “Because Congress’ intent ‘can most easily be seen in the text of the Acts it promulgates,’ we begin with an examination of the statute’s “plain text.’” Id. (quoting United States v. Wills, 234 F.3d 174, 178 (4th Cir. 2000)). Plaintiffs’ contention that the plain text of the Act “does not disqualify pre-CLJA exhausted claims” is unavailing. It is also true that the plain text of the Act does not expressly permit claims previously exhausted under the FTCA to satisfy § 804(h). Rather, the statute plainly instructs individuals that they may not file actions under the CLJA until they have complied with Section 2675, which requires that “the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied... .” 28 U.S.C. § 2675(a). No party disputes that claims under the CLJA did not accrue until the Act became law on August 10, 2022. See Wallace v. Kato, 549 U.S. 384, 388 (2007).

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Related

Federal Deposit Insurance v. Meyer
510 U.S. 471 (Supreme Court, 1994)
Wallace v. Kato
127 S. Ct. 1091 (Supreme Court, 2007)
Broughman v. Carver
624 F.3d 670 (Fourth Circuit, 2010)
Evelyn Mae Kokotis v. United States Postal Service
223 F.3d 275 (Fourth Circuit, 2000)
Hall v. Toreros, II, Inc.
626 S.E.2d 861 (Court of Appeals of North Carolina, 2006)
Hall v. TOREROS II, INC.
678 S.E.2d 656 (Supreme Court of North Carolina, 2009)
Penn Millers Insurance Ex Rel. S & C Construction Co. v. United States
472 F. Supp. 2d 705 (E.D. North Carolina, 2007)
Lumsden Ex Rel. Estate of Lumsden v. United States
555 F. Supp. 2d 580 (E.D. North Carolina, 2008)
Scott v. United States
328 F.3d 132 (Fourth Circuit, 2003)
Plyler v. United States
900 F.2d 41 (Fourth Circuit, 1990)

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Bluebook (online)
Freshwater v. United States, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freshwater-v-united-states-nced-2023.