Toxic exposure victims slam military, DOJ for delaying their pursuit of justice

Thousands of Americans are in the dark as to when they might be able to seek justice for a historic set of toxic exposure claims, even though Congress removed the barriers that were blocking them from doing so months ago. 

Some of those involved were shocked to see their cases, related to Marine Corps Base Camp Lejeune in North Carolina, dismissed last month over a technicality, requiring them to start the process over again. But they don’t plan to give up the fight just yet. 

“We sat in the gallery of the Senate three hours while the Senate voted on three different amendments and then took the final vote on the PACT Act,” said Mike Partain, a breast cancer survivor born at Camp Lejeune. “Veterans were crying. They were hugging each other.” 

Partain was referring to the Honoring our PACT Act, an expansive bill signed into law in August that improved benefits for veterans exposed to toxins. Within the bill is a measure permitting lawsuits for those who endured on-base water contamination decades ago at Camp Lejeune.  

The Congressional Budget Office has estimated that payouts to Camp Lejeune victims will amount to about $6.7 billion through 2031.  

Victory turns to frustration

“I can’t explain how elated, how relieved I was that it finally passed. I turned around and looked at Jerry and said, ‘We won, Jerry, we won,’” said Partain, who has long advocated for the legislation with retired U.S. Marine Corps Master Sgt. Jerry Ensminger. 

But those feelings of elation have turned into frustration.  

The same day that President Biden signed the bill into law, groups of plaintiffs filed multiple lawsuits against the U.S., alleging that the government failed to ensure that toxic chemicals “did not seep into the water used by the men and women who were willing to lay their lives on the line.”    

Retired Marine Corps Master Sgt. Jerry Ensminger addresses a rally against the federal government’s support for what activists say is a known polluter. Getty Images

Just last month, however, Partain found out by chance —  through a Google alert — that his case had been dismissed. 

The reason for the dismissal, he learned, was a legal technicality: He needed to refile what’s known as “an administrative claim” with the government before then filing his actual lawsuit.  

“The law says you have to file an administrative claim with the Department of the Navy,” Partain said. “Our position was we already did.” 

Neither Partain nor Ensminger — who are working with Camp Lejeune Legal, a group of law firms pursuing federal claims under the new law — could figure out the logic behind this setback.  

Ensminger, who served for 25 years in the Marine Corps, slammed the military and the Department of Justice (DOJ) for doing “everything in their power to kill” legislation that took decades to pass.  

“The Navy and the United States Marine Corps have lied, evaded, obfuscated facts,” Ensminger told The Hill.  

‘The backbone of our country’

Rep. Matt Cartwright (D-Pa.), who sponsored the Camp Lejeune bill, said that service members who chose to defend their country and those who supported them at the base “were let down by their government in a big way.”

“These victims also waited far too long to receive the justice they deserve,” Cartwright said in a Friday statement. “Now that the bill has been signed into law, we should not prolong the suffering of those who served our country.”

Environmental activist Erin Brockovich, who is also working with Camp Lejeune Legal, described the dismissal as “a delay tactic” while calling upon the government “to follow through with the spirit and the intention of this bill and what Congress passed.”  

“The backbone of our country and who America is, is our military,” she said.  

While it is notoriously difficult to sue the government, a 1946 statute called the Federal Tort Claims Act paves the way for doing so by recognizing liability for the negligent or wrongful acts of government employees.  

But to file such a lawsuit, an individual first must submit an administrative claim to the relevant government agency within two years of the date of negligence. That agency then has six months to complete an investigation.  

Consumer advocate Erin Brockovich embraces retired Master Sgt. Jerry Ensminger. Getty Images.

Only if the agency denies the claim can the plaintiff file a lawsuit in federal court.  

Partain discovered he had breast cancer in 2007, at age 39. At the time, he was one of about 64 men who shared both this diagnosis and a history of exposure to contaminated tap water at Camp Lejeune, according to 2010 testimony he gave before Congress. 

“I was conceived, carried and then born at the base Naval Hospital while my parents lived in base housing,” he said at the time.  

Ensminger, meanwhile, attributes his daughter Janey’s leukemia to the time she spent in utero at Camp Lejeune. Janey died of the cancer at age 9 in 1985. 

The Camp Lejeune Justice Act

The Marine Corps first discovered specific volatile organic compounds in the drinking water generated by Camp Lejeune treatment plants in 1982, according to the Centers for Disease Control and Prevention’s Agency for Toxic Substances and Disease Registry. 

Since then, the agency has found that on-base exposures to contaminants such as trichloroethylene, tetrachloroethylene and vinyl chloride likely increased the risk of certain cancers and other health issues from the 1950s through February 1985. 

The long-awaited Camp Lejeune Justice Act, passed in August as part of the Honoring our PACT Act, allows those exposed to these toxins to file a lawsuit in the U.S. District Court for the Eastern District of Northern Carolina.  

Such injuries, which include in utero exposures, must have occurred for at least 30 days between Aug. 1, 1953, and Dec. 31, 1987. 

The globe and anchor stand at the entrance to Camp Lejeune. The Associated Press

The new law overrides a legal hurdle — North Carolina’s so-called statute of repose — that had long prevented such cases. North Carolina is among the few states with such a statute, which prohibits lawsuits if more than 10 years have passed since the contaminating event.  

The problem was, however, that most plaintiffs didn’t even become sick — let alone know they were contaminated — until far more than a decade after the polluting incident.  

But cancer survivors such as Partain and family members of those who have died wouldn’t take no for an answer and ultimately vested their hopes in Congress.  

“We couldn’t go to the courts, because the courts said that we had to turn in claims before we knew we were exposed and before we had cancer,” Partain said.  

Nonetheless, Partain filed an administrative claim — as required by the Federal Tort Claims Act, prior to a lawsuit — to the Navy’s Office of the Judge Advocate General (JAG) in 2009.  

Ensminger had already submitted a claim on his late daughter’s behalf in 2002.  

Legacy claims

Neither Partain nor Ensminger heard back from the Navy JAG Corps within the six-month window required by law. But if an agency fails to decide on a claim within six months, that claim is considered rejected.  

“My original claim was actually filed in February of 2009,” Partain said. “And the JAG sat on it until spring of 2019 when I received a denial letter from JAG.” 

Partain and Ensminger — along with more than 4,000 other claimants — received a letter rejecting their claims that year, according to a November court document submitted by the DOJ.  

The letter, shared by Partain with The Hill, justified the rejections by citing North Carolina’s statute of repose — explaining that the claimants “did not file their claims within 10 years” of the last contamination incident they experienced at Camp Lejeune.  

But when the Camp Lejeune Justice Act became law in August, Partain said he had assumed that his dismissed administrative claim — now known as a “legacy claim” — made him eligible to seek justice from the government.  

“The day that the president signed the bill, our cases were delivered, hand-delivered, to Navy JAG department at the Washington Navy Yard,” Ensminger said. 

“They refused to accept them,” he added, noting that instead, a courier took the lawsuits to a FedEx office and shipped them a couple blocks to the Navy Yard.  

On Dec. 20, U.S. District Judge James Dever dismissed Partain’s lawsuit — filed together with other breast cancer survivors — stressing that the plaintiffs had neglected “to exhaust administrative remedies.” 

“This was not part of the intent of the act, and it certainly wasn’t part of the law,” Brockovich said. “They’re going to make now thousands of legacy claims refile.” 

Marine men and women come home from overseas only “to be poisoned on their own soil,” Brockovich added on CNN on Friday.

“This behavior has to stop,” she said. “And as long as I’m around, I’m going to do my best to hold them accountable.”

Ensminger’s case has yet to be dismissed because all the lawsuits were distributed among four judges — three who have already rejected their pile and one who has not issued a decision, according to Partain.  

But a bolded, all-caps announcement on the Navy JAG Corps website now indicates that “claims previously denied under the Federal Tort Claims Act involving water contamination at Marine Corps Base Camp Lejeune, N.C. must be refiled for consideration.” 

That failure to exhaust administrative remedies was at the core of the November response from the DOJ to Partain’s initial August complaint. 

The DOJ response questioned whether claims submitted “years before enactment” of the Camp Lejeune Justice Act satisfy administrative requirements, stressing that the Navy did not yet have a chance to reevaluate these legacy claims under the new law.   

The response also argued that while the Camp Lejeune Justice Act “expressly overrode various aspects” of the Federal Tort Claims Act, it did not eliminate the need for claims to be “administratively exhausted.”  

“To the contrary, Congress expressly reaffirmed that requirement, cross-referencing the relevant requirement and prohibiting the filing of suits in federal court before it is satisfied,” the DOJ response stated. 

Replying to the DOJ response later in November, a former attorney for the plaintiffs, Eric Flynn, described the government’s argument as “misguided.”  

Jerry Ensminger holds a portrait of his daughter, Janey, in White Lake, N.C. The Associated Press

“Before filing suit, a plaintiff must present an administrative claim to the Navy and the Navy must deny that claim,” Flynn wrote. “Plaintiffs did precisely that.” 

Nowhere does the law state that claims exhausted before the bill’s enactment do not count, according to Flynn.  

Rep. Mark Takano (Calif.), the top Democrat on the House Committee on Veterans’ Affairs, said in a Friday statement that the “VA offers benefits to veterans exposed to toxins at Camp LeJeune, and veterans should pursue those benefits.”

“However, many veterans and their families have been left behind — that is why I was pleased to include the Camp LeJeune Justice Act as part of my PACT Act,” Takano said. “I encourage the Navy and Department of Justice to act swiftly and honorably to address these wrongs, because all veterans and family members living with the effects of toxic exposure should have the opportunity to seek justice.”

The House Armed Services Committee did not immediately respond to The Hill’s request for comment.

Separately from the Camp Lejeune claims, which must be filed through the Navy JAG Corps, the Department of Veterans Affairs announced last month that it has already received more than 213,000 claims related to the broader PACT Act.  

The VA said that it would begin to process those claims on Jan. 1 and that 959,000 veterans had received new toxic exposure screenings — with nearly 39 percent reporting an exposure concern.

Asked why legacy claims must be refiled and face further delays in the judiciary process, the Navy JAG Corps referred The Hill to the DOJ. 

The DOJ, in turn, declined to comment on the issue. 

‘I’m in limbo’

Mikal Watts, a trial lawyer on the Camp Lejeune Legal team, told The Hill in a statement that he and his team “didn’t believe the law required re-presentment of claims already denied.” 

“However, we respect court decisions and will abide by whatever the courts decide either way,” Watts said. 

Both Partain and Ensminger already refiled new claims as a backup measure months ago, but Partain said he has yet to receive confirmation that Navy JAG got his new claim.  

“I’m in limbo in that sense,” Partain said. “But the thing is, for those people who didn’t and just filed suit, now they would have to file a new claim all over again.” 

Stressing that these are identical claims to those denied in 2019, he questioned the government’s motive in making “people who have been waiting 17 years” wait still longer.  

While acknowledging that “the wheels of justice” can move slowly, Partain emphasized his growing frustration and disillusionment with a fight he thought he finally had won.  

“The president signed the law, Congress passed a law, it’s clear that they’re wanting this issue resolved, but yet we’re getting delays,” he said. “And this is yet another delay.” 

—Updated at 5:06 p.m.