Camp Lejeune Water Litigation v. United States of America

Filing 133

ORDER granting 51 Motion to Strike Jury Trial Demand in plaintiffs' master complaint. Signed by Chief Judge Richard E. Myers II, Judge Terrence W. Boyle, Judge Louise W. Flanagan, and Judge James C. Dever III on 2/6/2024. (Moore, P.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DMSION
No. 7:23-CV-897
INRE:
CAMP LEJEUNE WATER LmGATION
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, § 804,136 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.
Subsection 804(e) is entitled "Exclusive Remedy." Id. § 804(e). Subsection (e)(l)
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)(l). 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-

·2

(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 ofthe 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 section 2680(a) of title 28, United States Code." Id.§ 804(f). 1

1

28 U.S.C. § 2680(a) provides: "The provision of this chapter and section 1346(b) of this title
shall not apply to - "
• 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 Vrrgin 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
3

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 oftitle 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 ofNorth Carolina seeking relief under subsection 804(b) of the CLJA. See
Brewer v. United States, No. 7:22-CV-150, 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

physical injury or the commission of a sexual act (as defined in section 2246 of
title 18).
28 u.s.c. § 1346(b).
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 ofthe 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.
(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.

4

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)(l) states: ''This section shall apply only to a claim accruing before the
date of enactment of this ·Act." Id. § 804(j)(l). 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 8046)(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 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 li!:.; 28 U.S.C. § 1407. On
December 5, 2016, that court dismissed plaintiffs' claims and held that: (1) North Carolina's ten-

(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.

5

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 doctrine3 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 Budgetazy Effects of Rules Committee Print 117-33 for H.R 3967. Honoring our PACT
Act of2021 (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).

3

See Feres v. United States, 340 U.S. 135, 146 (1950); cf. United States v. Brown, 348 U.S. 110,
112-13 (1954).

6

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...:&., 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); Sackettv. 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); De_p't of Homeland Sec. v.
Thuraissigiam, 140 S. Ct. 1959, 1981 (2020): Opati v. Re,1>ublic of Sudan, 140 S. Ct. 1601, 160710 (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

7

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. § 51 l(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 kl; Lac Du Flambeau Band of Lake Superior Chim,ewa 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 (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,~.:.&., 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

8

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 deparbnents, 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 Deparbnent 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 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

9

161 (cleaned up). ''Like a waiver of immunity itself, which must be unequivocally e:q,ressed, 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 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 e:q,licitly to do so." Id (emphasis added).

10

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
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

11

and unequivocally'' departed from its usual practice of not permitting a jury trial against the United

States. Id. at 161-62, 168.

m.
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,

~

Southwest Airlines Co. v.

Saxon, 596 U.S. 450, 457 (2022); Facebook, Inc. v. Duguid, 592 U.S. 395, 402-03 (2021). It
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

12

for such an action. Nothing in this subsection sb,a.ll 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. § 390l{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§ 390l{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. 51-1] 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,~ U.S. De.p't of Energy v. Ohio,
503 U.S. 607,615 (1992); McNarvv. 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.

13

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)(l) of the Comprehensive Environmental
Response, Compensation, and Liability Act ("CERCLA"). Id. at 165-68. Section 113(f)(l) of
CERCLA is codified at 42 U.S.C. § 9613(f)(l) 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 ofa civil action under section 9606 of this title or section 9607 of this title.
42 U.S.C. § 9613(f)(l). The Supreme Court described the first sentence of section 113(f)(l) as
"establish[ing] the right of contribution" under CERCLA. Cooper Indus., Inc., 543 U.S. at 16566. 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)(l)). The Supreme Court rejected
Aviall's argument to read the word ''may" in the first sentence of section 113(f)(l) 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)(l), 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)(l)).
The Supreme Court held that "[t]he sole function of the [last] sentence is to clarify that§ 133(f)(l)
does nothing to 'diminish' any cause(s) of action for contribution that may exist independently of

14

§ 113(t)(l)." Id. (quoting42 U.S.C. § 9613(t)(l)). "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.@: cause of action." Id. at 167 (emphasis added). Nor "does it expand §
113(t)(l) 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(t)(l)," 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(t)(l) of CERCLA in CoQPer 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 CoQPer 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,

~

Lehman, 453 U.S. at

160-69. The court, however, already has quoted the CLJA's entire text. No part of the CLJA's

15

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,~ 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); AlmandarezTorres v. United States, 523 U.S. 224, 234 (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

16

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). [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 ofrepose

17

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 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
U]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 thirdparty 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, u., 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 ofrepose is an affirmative defense. See Fed. R. Civ. P. 8(c)(1 ). If a third

18

party failed to assert such a defense, the third party would forfeit the defense. See, ~ 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"
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 ofNorth Carolina seeking relief under

4

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.lawsuit-information-center.com/statute-of-limitations-on-sexual-abuse-cases
.html; see,~ A.RS.§ 13-107(1) Qegislation enacted in 2019 in Arizona eliminating the statute
of limitations for violent sexual assault); D.C. Code§ 12-301(11) Qegislation 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 Qegislation enacted in 2020 in Vermont
eliminating the statute of limitations on childhood sexual or physical abuse claims).

19

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
Dee,pwater 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/usaondal/pr/appeals-court-upholds-bp-oil-spill-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 s.pill claims,
Financial Times (Jan. 15, 2017), https://www.ft.com/content/6428c082-dblc-11e6-9d7c-be108fl
cldce (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 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

20

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 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

5 28 U.S.C. § 2675(a).
21

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
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

22

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 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

23

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.
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 insurance benefits under
War Risk Insurance policies. Pence, 316U.S. at334n.1; see Galloway, 319U.S. at 389 n.18. The
Galloway Court relied on Pence as binding precedent to conclude that ''the legislation cited"

6 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).
7

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.").
24

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 .iY!:y,
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, !t&, U.S. Dep't of Energy, 503 U.S. at 615;
McNazy, 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.

25

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,~ In re Dombrowski, No. 21-1292, 2021 WL 5562286, at *1
(6th Cir. Sept 24, 2021) (unpublished) (claim under 28 U.S.C. § 2410(a)(l)); Greene v. Sec. of
HHS, 841 Fed. App'x 195,204 (Fed. Cir. 2020) (percuriam) (unpublished) (claim under42 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, 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);

8

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).
26

• . 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. De,p'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 Int'l 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 certain provisions of the Bill of
Rights including the Second Amendment,9 the Fourth Amendment, 10 and the Seventh

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. .

27

Amendment11 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, 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
frameworkin28U.S.C. § 1346(b)indraftingtheCLJA. See id. Partofthatframeworkrecognized

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.
12

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.").

28

that when Congress created "a narrow exception to permit jury trials in tax refund cases ... under
28 U.S.C. § 1346(a)(l)," 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 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 presqmption 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)(l) 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, 166--67
(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

29

have added a variant of the last clause of28 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 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,~ 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 ofwhether 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 then-Professor Barrett that plaintiffs
cite, Professor Barrett extensively discussed ''The Sovereign Imm.unity 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 that result." Id. at 149-50. Professor Barrett closed by observing that given

30

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 time-honored 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 Tort
Claims Act," which does not permit a jury trial. Id.: 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

31

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 fila admjnjstrative claims with the Department of Defense, then file a lawsuit
in district court, then prove causation and damages (potentially before ! .im:i), and
then withstand a potential appeal.
[D.E. 51-2] 3 (emphasis ~ded). 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~ !.iY!Y, as the statute contemplates, it is lilcely 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.

32

Plaintiffs cite the Technical Assistance and argue that the legislative history "confum[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 co-sponsors 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. El036 (daily ed. Nov. 1, 2023)); see [D.E.
66] 16, 19-20.
The United States responds that its ']>reUmjnary'' and

"imprecise□"

assumptions in the

Technical Assistance conflicted with ']>re-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 ']>ost-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

33

ambiguous legislative history to determine whether the CUNs text unequivocally, affirmatively,
and unambiguously provides plaintiffs the. right to a jury trial in actions seeking relief under
subsection 804(b).

~

Conroy y. Aniskoff. 507 U.S. SU, 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 post-enactment 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, 571 U.S. 31, 48
(2013) (quotation omitted);~ 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.B. 51].
SO ORDERED. This k.- day of February, 2024.

Q_L/2 M 4<',-:r

~/~/tl.
/)¥
RRENCEW.OYLE
1

RICHARD E. MYERS Il
Chief United States District Judge

United States District Judge

0,:..,:,..-v.~
LOUISE W. FLANAGAN
United States District Judge

JSC.DEVERID
United States District Judge

34

·