Several Camp Lejeune water contamination claimants are asking a federal judge to keep settlement offers from the federal government open while they challenge how the Justice Department calculated — or denied — their settlements.
The offers are scheduled to expire September 27.
Attorney James Foster represents six Camp Lejeune plaintiffs involved in the dispute. He says four of his clients received settlement offers based on exposure periods that conflict with their certified military service records.
Foster says the veterans spent more than a year at Camp Lejeune, but the Justice Department placed them in a lower exposure category covering between 30 and 364 days.
He says that cut the settlement amounts substantially.
“It reduced it in half,” he said. “So, the offer was $150,000 and it should have been $300,000. That was the case for three of them. And then for the fourth, it was $250,000. It should have been $400,000.” — Plaintiff's Attorney James Foster
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Foster says two other claimants represented by his office were found ineligible for settlement. He says the government gave them little explanation.
He said, “The only thing they said was evidence insufficiency, which, who knows what that means?”
In a September 17 response to the government's filing, Foster argues that the Justice Department has not disputed the underlying facts he presented to the court.
He says the government has not identified the exposure dates it used, the records it relied on, or explained why the four veterans were placed in exposure categories that Foster says do not match their certified service records.
“There was no mention of the facts being incorrect,” Foster said, “You would think that if that were the case, they would lead with that and saying, ‘No, we actually got these right. They were only on base for less than a year. Here's why.’ But we know that's not true. We have their records of service, certified records of service, putting all four of those people there for over a year so they can't deny the truth.”
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Justice Department opposes request
The Justice Department is asking the judge to deny Foster's request.
In its response, the government says the Elective Option is a voluntary settlement framework established by the Navy and Justice Department to evaluate and potentially resolve certain Camp Lejeune Justice Act claims.
The government argues that the program's public guidance does not have the force of law, does not give claimants legal rights and does not constitute a settlement offer that a court can require the government to honor.
The Justice Department also argues that a federal court cannot force the government to settle a case or require it to make a settlement offer on terms preferred by a claimant.
Foster says that is not what his clients are asking the court to do. “They're not denying what they did. They're just saying the court can't do anything about it, which does not make any sense. I mean, the court has been actively involved in trying to push the parties towards settlement since the beginning.”
The government also says it is not required to explain or justify its internal decision-making process when making settlement determinations, or to reconsider those decisions.
Foster argues that court review is necessary because, in his view, the government's position would leave claimants without a way to challenge unexplained settlement decisions.
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Dispute over settlement formula
Foster also disputes the Justice Department's characterization of information in his court filing as confidential settlement information.
He says the methodology used to calculate Elective Option settlements is publicly available.
“They made a grid public that said, ‘If you were there for this amount of time and you had this condition, then you get this amount of money.’ This isn't a secret,” Foster said, “They say in their response something about that I revealed confidential settlement information. Well, it's a public grid. I mean, anyone can go online and Google ‘Camp Lejeune elective option public guidance’ and you get the public document that says exactly how the numbers are calculated.”
Foster also says other claimants have contacted his office with concerns about their settlement offers since he filed the motion.
He characterizes those reports as evidence that the issues raised by his six clients may extend beyond their individual cases. The Justice Department's filing does not concede that similar problems are widespread.
“Since we filed our motion, other people have been reaching out to us to say that similar things have happened to them and their clients,” he said, “And at first it was kind of, honestly, just shocking to me that the government would fight so hard on this. But then the more people we heard from, the more we realized that this isn't something that's just affecting these six people. This is something that's affecting a lot of people that have been given elective option settlement offers.”
Foster's comments about the government's motivation for opposing the motion are his characterization of the dispute. The Justice Department's response argues on legal and procedural grounds that the court should not intervene.
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Claimants face September 27 deadline
Foster is asking the judge to hold a hearing before September 27 and prevent the six claimants from being considered to have rejected their settlement offers while the dispute is pending.
The Justice Department has asked the judge to deny that request.
Foster says the claimants may not have accepted the offers when the Elective Option program began several years ago. But after years of waiting for their claims to be resolved, he says they should have the opportunity to decide whether to accept the offers now.
“I don't think any of these people four years ago when the selective option program began — or three years ago — would have wanted to accept these offers, to be honest. But since so much time has gone by and there's so much uncertainty on when a global resolution will happen, obviously they should be entitled to take the option if they want it. So that's all that we're asking. I think a lot of these Marines are frankly exhausted with this process and it's something that, for people that have lost family members, it's just a reminder of that and they just want to move on.” — Plaintiff's Attorney James Foster
The Camp Lejeune Justice Act created a legal pathway for people who say they were harmed by contaminated water at the Marine Corps base to bring claims against the federal government.
The Navy and Justice Department later established the Elective Option as a voluntary pathway for resolving certain claims.
For the six claimants involved in the current dispute, the immediate issue is the September 27 expiration date.
The court has not yet ruled on Foster's request.
