[Senate Hearing 116-424]
[From the U.S. Government Publishing Office]
S. Hrg. 116-424
HEARING ON PENDING NOMINATIONS
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HEARING
OF THE
COMMITTEE ON VETERANS' AFFAIRS
BEFORE THE
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 6, 2019
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
43-877 PDF WASHINGTON : 2021
SENATE COMMITTEE ON VETERANS' AFFAIRS
Johnny Isakson, Georgia, Chairman
Jerry Moran, Kansas Jon Tester, Montana, Ranking
John Boozman, Arkansas Member
Bill Cassidy, Louisiana Patty Murray, Washington
Mike Rounds, South Dakota Bernard Sanders, Vermont
Thom Tillis, North Carolina Sherrod Brown, Ohio
Dan Sullivan, Alaska Richard Blumenthal, Connecticut
Marsha Blackburn, Tennessee Mazie K. Hirono, Hawaii
Kevin Cramer, North Dakota Joe Manchin III, West Virginia
Kyrsten Sinema, Arizona
Adam Reece, Staff Director
Tony McClain, Democratic Staff Director
C O N T E N T S
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November 6, 2019
SENATORS
Page
Moran, Hon. Jerry, U.S. Senator from Kansas...................... 1
Tester, Hon. Jon, Ranking Member, U.S. Senator from Montana...... 1
Boozman, Hon. John, U.S. Senator from Arkansas................... 6
Sherrod, Hon. Brown, U.S. Senator from Ohio...................... 10
Hirono, Hon. Mazie K., U.S. Senator from Hawaii.................. 12
Blumenthal, Hon. Richard, U.S. Senator from Connecticut.......... 16
Sullivan, Hon. Dan, U.S. Senator from Alaska..................... 18
Manchin III, Hon. Joe, U.S. Senator from West Virginia........... 20
WITNESSES
Mr. Grant C. Jaquith, Judge of the U.S. Court of Appeals for
Veterans Claims................................................ 3
Mr. Scott J. Laurer, Judge of the U.S. Court of Appeals for
Veterans Claims................................................ 5
APPENDIX
Mr. Grant C. Jaquith, Judge of the U.S. Court of Appeals for
Veterans Claims, Prepared Statement............................ 24
Mr. Scott J. Laurer, Judge of the U.S. Court of Appeals for
Veterans Claims, Prepared Statement............................ 26
Questions and Reponses
Pre-hearing Questions
Response by Grant Judith to Questions of:
Senator Tester............................................... 28
Response by Scott Laurer to Questions of:
Senator Tester............................................... 34
Post-hearing Questions
Response by Grant Judith to Questions of:
Senator Tester............................................... 37
Response by Scott Laurer to Questions of:
Senator Tester............................................... 46
Senator Blumenthal........................................... 48
Senator Brown................................................ 50
Senator Hirono............................................... 52
Senator Manchin.............................................. 55
Senator Murray............................................... 56
Mr. Grant C. Jaquith, Judge of the U.S. Court of Appeals for
Veterans Claims
Supplemental Questionaire.................................... 57
Supplemental Appendix A-B.................................... 96
Mr. Scott J. Laurer, Judge of the U.S. Court of Appeals for
Veterans Claims
Supplemental Questionaire.................................... 117
Senator Brown, Washington Post article-VA struggles to fill
hospital jobs.................................................. 129
HEARING ON PENDING NOMINATIONS
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WEDNESDAY, NOVEMBER 6, 2019
United States Senate,
Committee on Veterans' Affairs,
Washington, D.C.
The Committee met, pursuant to notice, at 9:35 a.m., in
Room 418, Russell Senate Office Building, Hon. Jerry Moran
presiding.
Present: Senators Moran, Boozman, Cassidy, Rounds,
Sullivan, Tester, Brown, Blumenthal, Hirono, Manchin, and
Sinema.
OPENING STATEMENT OF SENATOR MORAN
Senator Moran. Good morning. The hearing will come to
order. In the absence of Senator Isakson today I am pleased to
chair the Veterans' Committee hearing on these two witnesses.
Let me begin with a few opening remarks and then followed by
Senator Tester, and we will swear in our witnesses and hear
their testimony.
Welcome to our nominees, Grant Jaquith and Scott Laurer.
Congratulations on your nominations, and you have been
nominated to be judges of the Court of Appeals for Veterans
Claims. Thank you for your willingness to serve our nation's
veterans on this court and to ensure that all veterans receive
the benefits they are due according to the law and according to
congressional intent.
The court is relatively new, when compared to other courts,
at just over 30 years old. I look forward to hearing from each
of you how you will help shape the character and legacy of the
court for the future, if you are confirmed.
In 2018, the court received 6,800 appeals. That is 2,000
more claims than during any other year in the last two decades.
With the Board of Veterans Appeals increasing its output every
year, it is critical the court remain at full capacity, with
nine sitting judges, so that we can assure swift and accurate
resolution of cases.
I look forward to hearing more from you about your
qualities, your experience and what you would bring to the
court. I also acknowledge and thank your families for being
here today and for supporting you both in your long and
continued service to our nation.
So thank you very much, and I recognize the Ranking Member,
Senator Tester.
OPENING STATEMENT OF SENATOR TESTER
Senator Tester. Well, I want to thank Chairman Moran. I
want to also thank both of you for being here today. I want to
thank you both for your military experience--military service
to this country, and thank you for your willingness to continue
to serve on behalf of our nation's veterans.
Although I have met personally with you both, and you have
responded to written questions, your answers today will help
many of us make our final decisions about whether you are up
for the job to which you have been nominated.
Mr. Laurer, in particular, given your present assignment to
the White House, working on the National Security Council, as
an ethics counsel, and in records management, and the
experience with the European Russian Affairs Directorate, we
will want to know more about your role in recent events.
The uniqueness of this court cannot be understated. Formed
in 1988, the Court of Appeals hears appeals from a system
unlike any other Federal court. If confirmed, you will be
charged with the sacred duty, not simply as Federal judges but
as the only judges in the country solely tasked with making
determinations for those who have served their country.
For many veterans, the court is seen as their last hope
after fighting for months, years, and in some cases, decades,
to obtain the benefits that they have earned. They look to the
court for a fair and equitable resolution of their claims.
Now a few issues to address. Over the last few years, the
court has seen a 30 percent increase in decisions appealed to
the Federal circuit. I wonder if these appeals are necessary to
establish precedent, because so many of the decisions on the
Veterans Court are made by a single judge rather than a panel.
Mr. Jaquith, in response to my written questions you
mentioned that panel decisions might not take as long if there
were more established precedent from this court. I would like
both of you to discuss whether you think the court should be
using single-judge decisions or more panel decisions to
establish precedent.
According to last year's annual report, the court had over
10,000 filings. Now most of these were dismissed, but the court
still made more than 8,000 dispositions. The average wait time
between filing and disposition went from 301 days to 233 days
over the last two years. We are moving in the right direction
but eight months is still far too long.
In responses to my pre-hearing question on the length of
time it should take to make a decision, both of you said it
could only be determined on a case-by-case basis. If confirmed,
I want to hear what you would do or suggest to bring down the
wait time veterans have to get a decision. We, in Congress, and
especially on this Committee, have dedicated a lot of work to
modernizing the claims process and improving the quality of
care and benefits for veterans. I want to hear how you will
ensure our work to serve veterans is carried out.
On that note, the court's recent decision in Wolf, righting
a wrong, working to clear the way for many veterans who sought
emergency treatment outside the VA to receive the benefits that
they were promised. By continuing your life of service, this is
an example of what you can do to help your peers receive
justice.
Both of you have dedicated your lives to serving this
country. I hope you remember your service and appreciate that
your fellow veterans are counting on you when deciding the
cases that come before your court.
I look forward to our discussion today and thank you again
for your willingness to serve.
Mr. Chairman.
Senator Moran. Senator Tester, thank you very much. We will
swear in the witnesses. If you both will stand. Please stand
and raise your right hand.
Do you solemnly swear or affirm that the testimony you are
about to give before the Senate Committee on Veterans' Affairs
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Mr. Jaquith. I do.
Mr. Laurer. I do.
Senator Moran. Thank you. Please be seated.
Mr. Jaquith, we will begin with your testimony. You may
want to introduce family or friends that are here, if you would
like.
TESTIMONY OF GRANT C. JAQUITH
Mr. Jaquith. Chairman Moran, Ranking Member Tester, and
distinguished members of this Committee, thank you for the
opportunity to speak with you today. I am honored to have been
nominated by the President to become a Judge on the United
States Court of Appeals for Veterans Claims.
This great privilege is the result of my family's love,
support, and example. My wife, Rosemarie, and my six children,
Amanda, Larene, Gordon, Olivia, Isabelle, and Colton, mean
everything to me.
My inspiring wife is an accomplished lawyer and community
leader who spoke only Spanish when she started kindergarten.
Her parents came to the United States from Cuba as teenagers to
find a better life. She is here today, along with three of the
children and some of their family members, including three of
my grandchildren. All of my children and grandchildren are with
me always. One is in Federal service. My son, Gordon, is the
Director of the Naval Forces Division of Cost Assessment and
Program Evaluation in the Office of the Secretary of Defense.
That is him in a similar hairstyle to his dad's.
The rest is my wife, Rosemarie; son-in-law, Chris;
daughter, Amanda; daughter-in-law, Hannah; her father, Dr.
Steve Dubansky; my daughter, Larene's husband, Tony Davenport;
and grandchildren Allison, Pauly, and Jack.
Senator Moran. Welcome to all of you, to see your relative
testify today before the Committee.
Mr. Jaquith. My own roots in service run deep. I am
descended from a Mayflower passenger, a servant who signed the
Mayflower Compact 399 years ago. The first Jaquith born in
America died in 1678, of wounds received three years earlier in
King Philip's War. Several Jaquiths answered the call to arms
in Lexington, Massachusetts in April of 1775. A grandfather six
generations back served in the War of 1812.
During the Civil War, my great-great-grandfather was a
private in the 12th Vermont volunteers engaged in the defense
of Washington. And in the 1950s, my father served in the Navy
as a machinist's mate, contracting pneumonia, returning to work
too soon, and developing persistent lung problems that resulted
in a permanent disability rating.
My parents taught me to judge people on merit, based upon
their character and conduct, and to care about them. They found
fulfillment in dedication to family, church, community, and
country, and illustrated industry and perseverance. They
expected nothing and were grateful for everything.
My mother is watching now on television and cheering my
efforts to live up to their example. She instilled my interest
in history. From reading biographies of famous people, I
concluded that those who shaped our nation most often were
lawyers or soldiers, and a dream was born--to become both.
I signed my first contract with the United States of
America about a month before my 18th birthday, accepting the
ROTC scholarship which enabled the son of postal worker and a
homemaker to go to a private liberal arts college. I was
commissioned upon graduation, but was granted an educational
delay to go to law school, leading to a summer judicial
clerkship, work in the public defender's office, and then the
Army Judge Advocate Generals Corps.
After six years of active duty, I joined a large law firm
in Syracuse. In 1989, I came to the U.S. Attorney's Office. I
remained in the Army Reserves, rising to the rank of Colonel,
and serving as a trial judge from 2001 to 2010. In the U.S.
Attorney's Office, I have been a supervisor since 1998,
including serving as Criminal Chief, First Assistant U.S.
Attorney, and United States Attorney.
My 32 years of active military service involved a broad
range of legal work, including general practice assisting
soldiers, veterans, and their families; advising commanders
regarding operational, administrative, and disciplinary
matters; addressing civil claims; prosecuting criminal cases;
and presiding over courts martial throughout the United States
and in Germany and Korea, including cases involving soldiers
with significant service-connected health issues.
I have spent over 30 years in the U.S. Attorney's Office
conducting investigations, trying complex cases of different
types, handling appeals, and leading the effort by lawyers and
support staff to secure justice in civil and criminal cases
throughout a district encompassing 30,000 square miles.
In striving always to fulfill our responsibility to do the
right thing in the right way, I have learned from eight
excellent United States Attorneys; an outstanding leadership
team, including my First Assistant, and many talented
colleagues.
My diverse case work included prosecution of a research
coordinator at a VA medical center who falsified patient
records to enroll them in cancer treatment studies, including
those of a patient who died from the resulting infusion of
chemotherapeutic drugs, as well as the Chief of Oncology who
failed to ensure that accurate case histories were maintained
and that treatment was based on actual laboratory results.
As Vice-Chair of the Servicemembers and Veterans Rights
Subcommittee of the Attorney General's Advisory Committee, I
have initiated greater dialogue with the Department of Veterans
Affairs about the importance of retrievable patient records to
the quality of medical care for veterans and later litigation
about that care, under both the current VA health records
systems and the modernized comprehensive electronic system
being designed and fielded.
My family and professional history have imbued me with
reverence for the service and sacrifice of veterans and the
rule of law for the fair, impartial, and orderly resolution of
disputes. These cornerstones of our country are connected in
the Court of Appeals for Veterans Claims.
I have learned from exceptional jurists I have appeared
before and worked for that excellence depends not only on
integrity, judgment, knowledge, and common sense, but also on
humility. They showed that good judging comes from listening
and learning to understand the facts and the law, and fairly
apply the latter to the former. If confirmed, I will follow
their example and work tirelessly to resolve cases justly and
swiftly.
Thank you for considering my nomination to this crucial
court. I would be pleased to answer any questions you have.
Senator Moran. Mr. Jaquith, thank you.
Mr. Laurer, you are welcome to present your family and
friends in the room, and if you would provide your testimony.
TESTIMONY OF SCOTT J. LAURER
Mr. Laurer. Good morning, Mr. Chairman, Ranking Member
Tester, and distinguished members of the Committee. Thank you
for the opportunity to testify before you today and for the
Committee staff's assistance in connection with my nomination.
I am honored that the President has nominated me to serve
as a judge on the United States Court of Appeals for Veterans
Claims. I would not be here without the support of many people,
and today I would like to particularly acknowledge my family.
My father's parents and mother's grandparents sailed to the
United States in search of better lives for themselves and
future generations. Most did not even have the equivalent of a
high school degree; however, they valued education, embraced
hard work, and proudly became American citizens. They labored
humbly in a Kansas City slaughterhouse, as a domestic helper in
Topeka, and as a custodian, domestic helper, dressmaker, and
roofer in Philadelphia.
My parents made extensive sacrifices raising seven
children. After two of our grandparents lost their spouses, my
parents also welcomed the surviving grandparents into our home.
Anything our large family lacked in material wealth was
surpassed by mutual affection and happiness. Growing up, our
parents taught us to treat everyone with respect, the
importance of personal commitment, and the value of hard work
and teamwork, lessons that would serve me well throughout my
military career.
While a second-year law student, I met my future spouse and
best friend. During our 28 years of marriage, 11 permanent
change of station moves, and multiple deployments, her support
has been unwavering. Our two children have also backed me in
countless ways, while being towed around the globe attending a
dozen different primary and secondary schools between them. I
thank my family members for their love, selflessness, and
support to our nation. And I would like to introduce my wife,
Kim, in the red dress; my daughter, Ada, in black; and my son,
Ethan. I am very proud of all of them and I am very thankful
for them joining me this morning.
I wanted to become a lawyer since high school. As the son
of a Korean War-era veteran and nephew of a Vietnam War
veteran, I was also drawn towards military service. I did not
know it was possible to serve as both an officer and an
attorney until I met Judge Advocate General's Corps officers
who were recruiting at my law school. The more I learned about
the JAG Corps, the more eager I became about serving in the
dual professions of arms and the law. The Navy JAG Corps
selected me for its Student Program, and I was commissioned in
January 1989.
The United States military offered me the privilege of
service, unparalleled leadership experience, and a wide range
of legal skills. During nearly 30 years of active-duty service,
I provided legal services to military service members, veterans
and their families, and I advised our country's most senior
civilian and military leaders on complex legal issues in combat
zones, at sea, overseas, and here in Washington, D.C. Through
these diverse experiences, I have demonstrated my ability to
faithfully interpret and apply laws and regulations to factual
situations and to communicate effectively, in speech and in
writing, my reasoning behind legal conclusions.
Veterans and their families deserve judges serving on the
United States Court of Appeals for Veterans Claims who are
impartial, diligent, skilled, and devoted to the law. If
confirmed, I will uphold those solemn obligations and enhance
the Court's efforts to decide an individual veteran's appeals
fairly and expeditiously.
Thank you again for the opportunity to appear before you
today. I would be glad to answer your questions.
Senator Moran. Mr. Laurer, thank you very much and thank
you for your family's presence with you today.
I will defer and recognize the Senator from Arkansas,
Senator Boozman.
SENATOR JOHN BOOZMAN
Senator Boozman. Thank you so much, Mr. Chairman, and also
you, Mr. Tester. We appreciate you guys doing this in an
expeditious way so we can get these things done. As was just
said by Mr. Laurer, fair and expeditious, you know, is so, so
very important. This is such a big job. We appreciate you all
in the sense of your service to your country in the past and
your willingness to serve now.
I had really good meetings with both of you all, and I
think you were able to answer my questions, you know, as we
talked at length about what the job entails. And so I guess one
thing I would like to know is you all have both--were in the
military, you know, both veterans yourselves, many years of
service. How will that experience affect you as you do your
duties regarding the court? What does that bring to the table,
in the sense of being a veteran and kind of understanding some
of the issues that are out there?
Mr. Jaquith. Thank you, Senator. As I indicated, I think my
over three decades of military service imbued me with great
reverence for the service and sacrifice of veterans, but also a
personal understanding of the frustrations sometimes
experienced when seeking administrative action, particularly
when not on active duty.
My military experience is an important reason why I am
here, both as the foundation of my professional success and the
impetus for my interest in dedicating the rest of my
professional life to this court. The breadth of my military
experience has been a real catalyst for professional
development.
In nearly 29 years in the Army Judge Advocate General's
Corps I performed a wide array of functions, and having to
learn and adapt to each one. They included providing legal
assistance to soldiers, veterans, and their family members in
all areas of civil law, including those involving military and
veterans' benefits. I advised a depot commander on matter of
command administration, contracts, environmental law, Federal-
State relations, and personnel law, and did similar work
advising other commanders at all levels, including, as the
staff judge advocate advising the New York Army National Guard
commander and his staff. I investigated and settled civil
claims against the Army arising in a 29-county area. I provided
instruction on military justice, operational law, law of war,
ethics, mobilization preparedness, and veterans' re-employment
rights, and the protections of what is now known as the
Servicemembers Civil Relief Act.
As trial counsel, my prosecutors included a wide variety of
serious cases. I served as a Special Assistant United States
Attorney in both the Western District of Missouri and the
Western District of New York, and some of the cases I worked on
as a trial counsel and a SAUSA involved significant medical
evidence.
As an Army trial judge from 2001 to 2010, I presided over
courts martial, including trials on charges of heinous crimes
such as solicitation of murder and rape, and some of those
cases involved soldiers whose work involved combat injuries
that was presented as mitigating evidence.
This broad perspective, I think, if confirmed, will enable
me to apply the exercise of the good judgment developed in that
career in trying to achieve fair and equitable results,
expeditiously, for veterans.
Senator Boozman. Mr. Laurer, quickly, or he is going to
gavel me.
Mr. Laurer. Thank you, Senator. I guess you could say that
both Mr. Jaquith and myself have walked a mile in veterans'
shoes, and that is obviously important for understanding,
particularly with respect to veterans' benefits, the
frustrations perhaps that they may deal with.
In my case, as a result of my military experience, I have
had the privilege of service, first and foremost, some
unparalleled leadership experience, to include being in command
of a legal organization, and a wide range of legal skills.
Why do I think that is important? Well, first of all, my
main role, if confirmed, would be to faithfully interpret and
apply laws and regulations to the factual situations. It is not
enough just to be able to do that, however, as I am sure we
will discuss later. You have to be able to communicate
effectively, both in writing as well as orally, in order to
help with some of the challenges in the system as they
currently exist.
I would also note that both on the Joint Staff and my most
recent detail to the National Security Council, I have
coordinated extensively using the interagency process. And that
is important because, if confirmed, you join a court that is
composed of currently nine judges, and you need to be able to
collaborate, and based on what I know about the current judges
and their diversity of experiences and their incredible
knowledge base, that is important to be able to work, whether
it is on a single judge alone decision or certainly in panels
or en banc, or all together.
And then, finally, I mentioned earlier that I have led
organizations in command and in other situations during my
career, and one of the important things to remember with
judges, again, is that even though you are not in command of
something, you are in a leadership and a supervisory role, not
only with your chambers, of course, and are responsible for
developing the personnel under your charge, but also working
across the court with other members, their chambers, and in
general. Thank you.
Senator Boozman. Thank you.
Senator Moran. Senator Boozman, thank you. Senator Tester.
Senator Tester. Thank you, Mr. Chairman, and I want to
thank you both for being here today. I want to also thank your
families for being here today. I think it speaks well of both
of you.
Before I get into my questions I would just say that I am
impressed with the qualifications that both of you bring to the
table. I think that it is good to have people with your
background on the Court of Appeals for Veterans Claims.
Mr. Laurer, from August of 2017 to August of 2018 you
served as Ethics Counsel on the National Security Council at
the White House. I believe that is correct, isn't it?
Mr. Laurer. Yes, Senator.
Senator Tester. And from August of 2018 until recently you
served as Deputy Legal Advisor to the European Russian Affairs
Directorate. That is correct?
Mr. Laurer. Yes, Senator.
Senator Tester. Okay. It has been a rather tumultuous time
at the NSC, and it would be, I think, helpful for the Committee
to know a little bit more about any specific role that you may
have played. So did you have any knowledge or involvement
regarding the July 2019 call between President Trump and
President Zelensky?
Mr. Laurer. Thank you for your question, Mr. Senator.
First, if I may explain a little bit about the National
Security Council----
Senator Tester. Sure.
Mr. Laurer.----staff, for those that may not be aware. The
staff is composed primarily of detailees.
Senator Tester. Yep.
Mr. Laurer. In my case, I was detailed from the Department
of Defense, and that is true, of course, for the Legal Affairs
Directorate as well. So I was one of six detailees. So just to
provide a little bit of background.
Senator Tester. Yep.
Mr. Laurer. As you know, I have been nominated to serve as
a judge on the Court of Appeals for Veterans Claims, and I am
here in that capacity today, obviously. Because of concerns
about protected information, I am unable to discuss the
specifics of any matter that I may or may not have worked on
while detailed to the National Security Council.
Senator Tester. If we were able to, with the Chairman's
agreement, be able to go into a closed session, could you tell
us about that?
Mr. Laurer. Senator, there would be some of the same
concerns with respect to protected information, and if I may
briefly explain what those would be----
Senator Tester. Yes.
Mr. Laurer.----national security interests, of course,
first and foremost, to include classified information; client
confidences that may exist; as well as protections of the
separation of powers between co-equal branches of the
government.
Senator Tester. Okay. So we would not want you to give away
anything that would make the country less safe. I do not think
that would be there. But if there was any role that you played
it would be helpful to know, and that is really where the
questions would come from. For example, were you aware or did
you have any role in John Eisenberg's decision to move the
transcript of the July 25th call to a highly classified server?
Mr. Laurer. Again, Senator, I would express the same
concerns.
Senator Tester. Okay. So it was good. I get it. I just--it
would be good to know that. And I do not--I think if you did
not have any role in that there is no problem. If you did have
a role in it, we would like to know what it was, and I do not
think that brings forth national security issues.
I am going to ask him to do it. If you will do it, that
will be fine. If not--and that, by the way, does not take away
from your qualifications and the fact that you were a detailee,
and the fact that you went there because you were assigned that
job. It is just if there are any roles there I would just like
to know. I think you are a fine man. I think you have got a
fine family, and, by the way, your son is a chip off the old
block.
The fact of the matter is, is that this is kind of
important information moving forward. And so if we could--you
seem to be a straight-up guy, an honest guy, somebody who is a
no-BS guy. I like that about you. And so if we could get that
stuff--it is not real heady, and I have got a notion you
probably did not have a hell of a lot to do with it, but I
would like to know that. Okay?
Mr. Laurer. Thank you, Senator. I understand.
Senator Tester. Okay. Let me go with the single judge
question that I brought forth in my opening question. With a
single judge can decide an appeal more quickly than a panel,
are there any downsides to a single panel decision, just as
lack of precedence being established? Either one can go first.
It does not matter.
Go ahead, Mr. Jaquith.
Mr. Jaquith. Thank you, Senator. There is not a downside.
Single-judge decisions certainly have their place.
Senator Tester. So would it be helpful to have more panel
decisions?
Mr. Jaquith. Well, I think it is important to maintain the
construct of the internal operating procedures that the court
has in place. The single-judge resolutions are designed, as I
understand the rules, for relatively simple cases where the
outcome seems not readily debatable. And so having a single
judge decide those cases can be done more quickly.
Panel decisions are very important, and so it may be that
it is screening judges should be sparing resolving questions of
doubts about whether a panel is warranted or not in favor of a
panel deciding the case, because the additional time it takes
to get three judges together and----
Senator Tester. Gotcha.
Mr. Jaquith.----work on a case, has the advantage of
setting precedent that could speed up cases throughout the
system.
Senator Tester. That is correct. What is your view on it,
Scott?
Mr. Laurer. Senator, I would echo what Mr. Jaquith said. I
would add that when considering this question obviously there
is guidance for the judges, and we would have to follow that.
But in addition, the annual reports clearly show that--state
the obvious, which is that whenever you have a panel or
certainly en banc, it takes longer. And so as I recognize there
is a need both in terms of first and foremost getting it right
and being fair to the veterans, but also this need to do so in
an expeditious manner.
And so there are certainly advantages and disadvantages. I
would be comfortable, if confirmed, with following the existing
guidance, but also looking for other ways to be more
expeditious in resolving cases. And the advantage, obviously,
with a panel decision is that it has precedential value. That
would be helpful not just for the board but also all the way
down the chain to the regional offices and to the veterans
themselves.
And so, again, if you meet as a panel and if you provide a
decision that is very clear and instructive, it is very
difficult because it is hard to capture what those metrics
would look like. But common sense tells those of us in the room
that if you were to be clear in providing that it could perhaps
prevent the need to remand cases to the board, and therefore be
more efficient.
Senator Tester. Thank you. Thank you, Mr. Chairman.
Senator Moran. Senator Brown.
SENATOR SHERROD BROWN
Senator Brown. Thank you, Mr. Chairman. Thank you for that.
Thank you both for your willingness to serve. And I reiterate
what Senators Tester and Moran said about your qualifications,
and good luck through the process, and thank your families for
being here.
Following up--Mr. Laurer, following up on Senator Tester's
question, in your questionnaire you affirmed you would appear
and testify before a duly constituted committee of Congress. If
subpoenaed regarding the Ukrainian controversy, are you willing
to appear and testify regarding your actions and your position
as legal advisor for European Affairs in the NSC?
Mr. Laurer. Thank you, Senator. I stand by my response in
the questionnaire, and so for a committee that would call me,
my response is yes.
Senator Brown. Okay. Thank you for your direct answer.
Also following up on Senator Tester's line of questioning,
in your role at the NSC, Mr. Laurer, were you aware of, as
Ambassador Taylor's written testimony details, a, quote,
``irregular policy channel running contrary to the goals of
long-stand U.S. policy, vis-a-vis Ukraine''? Were you aware of
that written testimony?
Mr. Laurer. Thank you, Senator. Again, I would state that
based on concerns about protected information, I am unable to
discuss specifics of any matter that I may or may not have
advised on while detailed to the National Security Council.
Senator Brown. But you would be willing, if called back, in
a classified setting, to at least appear?
Mr. Laurer. Again, my response to the questionnaire,
Senator, is yes, that as a----
Senator Brown. A lot of us were pretty stunned by the
political reaction, or politicized reaction to Mr. Taylor's
testimony, and with criticism, sort of an angry criticism of
him as a public official and public servant. Did you have a
reaction to the criticisms of Mr. Taylor in the ensuing days of
his testimony?
Mr. Laurer. Senator Brown, I do not know Mr. Taylor, and I
had no reaction to the publicly available information.
Senator Brown. Okay. As someone with as distinguished a
record as you did I just wonder if--as you have had, and as a
patriot, and someone who has served his country as admirably as
you have, and as admirably as he had, I would just wonder if it
sort of hit you in the gut when you see those kinds of
criticisms targeted at a public servant like him. But I
understand your answer.
Mr. Jaquith, one question for you. If confirmed, when
reviewing a case, how would you raise--how would you weigh
congressional intent against VA regulation, given the recent
Supreme Court ruling in Kisor v. Wilkie?
Mr. Jaquith. Thank you, Senator. I mean, analysis starts
and sometimes ends with the text of the statute. If the words
are clear and unambiguous they are applied as written, and it
making that determination I would construe the words in
accordance with their ordinary usage and context, reflecting
how they were most likely understood by Congress and the public
and most compatible with the surrounding law into which they
were integrated.
Legislative history may be helpful in ascertaining the
reasonable construction of the statutory language, and, of
course, we have the Veteran Canon, that interpretive doubt is
to be resolved in the veteran's favor.
This year, as you reference, interplay of the canons of
statutory construction and the deference to be accorded
reasonable agency interpretation of that ambiguity in statutes,
under Chevron, or regulations under Auer, has been the subject
of two important cases, Procopio v. Wilkie, in which the
Federal circuit held that the statute unambiguously applied to
veterans who had served in the Blue Water territorial seas of
Vietnam, and Kisor v. Wilkie, in which the Supreme Court
expounded on the proper place for Auer deference. And I would
carefully study those recent decisions and apply them to the
standards of statutory construction that I had earlier
described.
Senator Brown. Thank you, Mr. Jaquith.
The last point, Mr. Chairman, I would like to enter into
the record, and I would ask unanimous consent, an article in
the Post today with salaries lagging far behind private sector,
VA has 49,000 positions vacant. I know how much you care about
this, about the VA, Mr. Chairman, and that Senator Isakson
does, and Senator Tester, and Senator Hirono. All of us, we are
all concerned about that. It is partly salaries. It is also
partly the attacks on Federal employees that we see from the
White House, and the undermining of civil service.
Again, I understand it is partly a dollar figure, a dollar
issue, and I understand it did not begin with President Trump.
There have been shortages before. But this stepping up
criticism of Federal employees, and coupled with the threats,
again, for a government shutdown, makes it even harder to
recruit.
So I would like, Mr. Chairman, to enter this into the
record.
Senator Moran. Without objection. Senator Hirono?
SENATOR MAZIE K. HIRONO
Senator Hirono. Thank you, Mr. Chairman.
I ask all nominees before any of the committees that I sit
on the following two questions to start, and I will ask these
two questions of both of you, starting with Mr. Jaquith.
Since you became a legal adult, have you ever made unwanted
requests for sexual favors or committed any verbal or physical
harassment or assault of a sexual nature?
Mr. Jaquith. No, I have not.
Mr. Laurer. No, Senator.
Senator Hirono. Have you ever faced discipline or entered
into a settlement related to this kind of conduct?
Mr. Jaquith. No, Senator, I have not.
Mr. Laurer. No, Senator.
Senator Hirono. For Mr. Laurer, you have had a number of
questions relating to your work at the National Security
Council. I just want to clarify, was one of your
responsibilities to assist the National Security Advisor and
the National Security Council staff on interpretations of U.S.
and international law relevant to U.S. national security?
Mr. Laurer. Yes, Senator.
Senator Hirono. So Tim Morrison, the former Senior Director
for European Affairs at the White House and NSC testified in
detail about his recollections relating to the July 25th
telephone call between President Trump and Ukrainian President
Zelensky.
Morrison stated, quote, ``After the call, I promptly asked
the NSC Legal Advisor and his Deputy to review it. I had three
concerns about a potential leak of the MemCon. First, how it
would play out in Washington's polarized environment. Second,
how it would play out in Washington's--second, how a leak would
affect the bipartisan support our Ukrainian partners currently
experience in Congress. And third, how it would affect the
Ukrainian perception of the U.S.-Ukrainian relationship.''
Were you the deputy referenced in Mr. Morrison's testimony?
Mr. Laurer. Senator Hirono, I know who Mr. Morrison is. I
cannot, in this setting, get into any details about any advice
that I may or may not have provided.
Senator Hirono. Oh, so you are saying that you were the
deputy referred to by Mr. Morrison.
Mr. Laurer. No, Senator. That is not what I said. What I
said is that I know who Mr. Morrison is, as a Senior Director
on the NSC staff, but that in this----
Senator Hirono. I am not--excuse me, I am not asking you
tell us what you said. I am just asking whether you are the
deputy that Mr. Morrison referred to. Yes or no?
Mr. Laurer. I do to believe that I am the deputy that he
referred to.
Senator Hirono. So, I figure--you testified that you would
be fair and impartial. You would abide by the rule of law. I
would expect that for both of you. And I am just wondering, the
concerns relating to the telephone call was first raised to the
public by basically a valid complaint brought on by a
whistleblower. We do have statutes that require a Federal
employee, if they see any misconduct, et cetera, to come
forward, and we do have statutes that protect a whistleblower.
Do you think that the whistleblower's identity should be
disclosed?
Mr. Laurer. Senator, I have no opinion on that. What I can
assure you is that throughout my career of public service that
I have always acted in accordance with the law and integrity,
and I stand on my reputation in that respect, and having done
so for almost 30 years on active duty and even longer as a
commissioned officer, I have a very clear record in that
respect.
Senator Hirono. So are you aware that we do have laws that
protect a whistleblower?
Mr. Laurer. Yes, I am.
Senator Hirono. And you would abide by those laws. So some
of those laws would be that a whistleblower should not be
subjected to threats, intimidation, or retaliation, and you
would support those.
Mr. Laurer. Yes, Senator, I can assure you that in any
context I am familiar with whistleblower laws and that in any
context I would respect those laws.
Senator Hirono. It would be good if others did likewise.
For both of you, as you know there has been a claims
backlog at the VA, which ultimately will affect the workload
for the court, and many veterans have been waiting, as you are
probably aware, for years for their claims to be adjudicated,
and we owe them swift justice. What can you do as a judge to
decide cases on a timely basis? And since I am running out of
time I just need short responses from you, of whether, you
know, this would be something that you would pay attention to
and try to come up with ways to just effectively move things
along.
Mr. Jaquith. Hard work and quick action.
Senator Hirono. Long hours.
Mr. Jaquith. Long hours. I think, you know, a career in
litigation and working through the thicket of legal and factual
issues under deadlines would help me in that regard, getting
from intake to action. There are some other things that are
promising--the Appeals Modernization Act, the potential for
class action litigation, and as we have already discussed a
little bit, the importance of issuing clear, precedential
decisions that it is hoped would speed up the entire system.
Senator Hirono. Mr. Laurer?
Mr. Laurer. Senator, I would add to that obviously Mr.
Jaquith and I are not currently sitting on the court, but I
recognize, and I am humble enough to know that if confirmed,
based on my willingness to make things better and improve
things, that I would look around and I would add to that
diversity of the experience that currently exists on the court,
by bringing to bear ideas that I may have. But it would be very
presumptuous at this point to say what those may be, because I
am not sitting there. But I would certainly, as part of the
learning curve that anyone undergoes with respect to a new
position, would be very attuned to that and would be looking
for ways to bring hard work to it and innovative ideas.
Senator Hirono. Thank you. Thank you, Mr. Chair.
Senator Moran. Thank you, Senator.
Maybe for Mr. Jaquith, but either one of you, you
mentioned, I think, Mr. Jaquith, about the presumption of
agencies, the deference to their views. What is the current
state of that law? What is the court's role in deference to the
Department of Veterans Affairs positions?
Mr. Jaquith. Well, thank you, Senator. There is a statutory
standard--it is Section 7261 of Title 38--for reviewing those,
and legal questions, de novo, factual findings, clearly
erroneous.
In terms of the interpretation of regulations, it has been
the subject of a lot of litigation, you know, first--
Senator Moran. So is the answer, at the current state is it
is uncertain?
Mr. Jaquith. I think the state of the law still is that
there is deference to be accorded to agency determinations when
those determinations are grounded in the specialized expertise
of the agency. That is, I think, the essence of Justice Kagan's
opinion in Kisor. But first you have to determine if there
actually is ambiguity or not. That is not--you do not just
immediately to deference--and factor in--and I do not think
this was discussed by the court in Kisor--the Veterans Canon.
So, you know, interpretive doubt is resolved in favor of the
veteran.
Senator Moran. Mr. Laurer, anything I should know beyond
what I just learned?
Mr. Laurer. No, Senator. I would concur with Mr. Jaquith.
Senator Moran. Thank you. Let me ask this. In the
interpretation of laws, I assume there are circumstances in
which Congress has created uncertainty, one statute saying one
thing, one statute saying presumably something different. And I
know there would be instances in which regulations, at the
Department of Veterans Affairs, might be in conflict with the
statutes.
I would ask you, if and when you know of those instances,
if you would inform--would this be part of your role, informing
this Committee, Congress, of those circumstances? One of the
things in regard to the question of backlog, if we can reduce
the level of uncertainty as to what the status of the law is,
and whether a regulation is complying with the statute, we can
reduce the amount of litigation, I think, the amount of
uncertainty that veterans face in needing a pending claim.
Do you have suggestions for me of how we can make certain
that Congress knows when it might have the opportunity to clear
the air about a law and work to make certain that the
Department is operating within the law?
Mr. Laurer. Senator Moran, my commitment would be to work
with, if confirmed, other members, of the court and also with
the other branches of the government. As I have stated with
Committee members and staff that we have had the great fortune
to speak to over the course of the last few days, I view this
as a collaborative effort between the court, the Executive, and
Legislative co- equal branches of the government. And so you
have my commitment to work. I do not know the actual mechanics
of how we would do that yet, but you have my commitment to do
everything within my power to do so.
Senator Moran. Thank you. Mr. Jaquith, anything?
Mr. Jaquith. Mr. Chairman, as I understand the role of the
court, I think, if confirmed, I would participate in making the
determination of whether regulations are consonant with
statutes in the context of cases, and it would be through those
decisions that that message would get out.
In terms of the interface with this Committee, I do not
have an insider's knowledge of that but I presume, perhaps from
the reporting requirement that is part of the expansion of the
court, that any of that sort of communication would come
through the Chief Judge.
Senator Moran. Thank you. Mr. Tester.
Senator Tester. Well, I want to thank you for that
question, Mr. Chairman, because I think it is really important,
and if there are conflicts we have got to figure out a way to
resolve them or we have got to make sure that that
communication chain is there. And so short of doing it the old-
fashioned way of just picking up a phone and saying, ``Hey,
Jerry Moran, we have got an issue here,'' or ``Jon Tester, we
have an issue here,'' we have got to figure out how to do it,
because the truth is it would make your job better and it would
just be good government.
Look, you guys have extensive experience. Is there
anything--and you are not on the court yet, but is there
anything, any certain area that you think that you are going to
need to bone up on to be on the court?
Mr. Jaquith. Thank you, Senator Tester. Thought I believe
the nature and breadth and extent of my work over 37 years as a
lawyer has been outstanding preparation for service on the
court, if I am concerned, there is no question that the focus
on the specifics of veterans' law is essential, and I have been
doing that, reading the statutes, rules of practice, the
internal operating procedures, many precedential cases and the
reviews of such cases, and analyses and commentaries on the
development of the court, and significant issues that have
arisen. I have spoken with some knowledgeable people on the
subject, watched oral argument, listened to a podcast or two.
One of the energizing aspects of a career in litigation is
the variety of subjects encountered, and I am excited by this
one and the possibility of focusing further on veterans' law,
if confirmed.
Senator Tester. Okay. Mr. Laurer?
Mr. Laurer. Senator, the fundamental skills have been
demonstrated with respect to interpreting laws and regulations
and fairly applying those. I would say that, as has been the
case throughout my career, any time that I have gone to a
different assignment there has been some learning to do, and I
would expect that I would approach it humbly, and like Mr.
Jaquith already started that process without presuming
anything, of course, because, as you noted, we have not been
confirmed. But certainly reviewing the seminal cases, articles,
and doing as much in preparation for today's hearing and this
process as possible. So I would continue to do that.
I can tell you that any time I have moved, and I have done
so every two years, in the United States Navy, I have had some
homework to do before getting there, and then certainly upon
arrival, but quickly getting up to speed. Thank you.
Senator Moran. Senator Blumenthal?
SENATOR RICHARD BLUMENTHAL
Senator Blumenthal. Thanks, Mr. Chairman. I want to join in
the comments made by Senator Tester about the importance of the
Wolf case and the need to provide veterans with reimbursement
for the non-VA emergency care that they have paid for. I know
you are familiar with the case. I think that the court's
decision there was really enormously instrumental and important
in vindicating the rights of veterans, and now alerting
veterans, making them aware of their rights to that kind of
reimbursement. There are literally, as you know, millions of
dollars that veterans are due under that decision, and I know
that we are going to keep pushing for that kind of fairness in
reimbursement.
I hope that you will agree that veterans should not have to
wait years, generally, to get medical care from the VA, and
that claims and appeals should be resolved as quickly as
possible. And I am proud of the fact that we have worked, in
the Congress, on a bipartisan basis, to pass the Veterans
Appeals Improvement and Modernization Act of 2017.
My understanding is that VA has doubled the number of
appeals it has decided from 52,000 in 2017 to 95,000 in fiscal
2019, and I think one of our main goals has to be ensuring that
the Court of Appeals of Veterans Claims continues to operate to
decide these claims as quickly and fairly as possible, and I
hope that both of you agree.
Mr. Jaquith. Yes, Senator. If confirmed we will certainly
do our best to ensure that that occurs.
Senator Blumenthal. Mr. Jaquith, in your responses to the
Committee you mentioned that you had a substantial caseload in
defending VA malpractice claims, claims against the VA based on
malpractice. Why do you think there are so many of those
claims?
Mr. Jaquith. Senator, I think, in the main, it is a result
of the volume of care that is provided. I do not mean to
suggest that the incidence of medical malpractice claims is any
greater in Veterans Affairs medical centers than in other
medical facilities, although I have done no study of that so I
do not know whether that is true.
In our work with the VA, it has been my observation that
there are outstanding professionals there, as there are in
civilian hospitals, so I would not draw any negative inference
from that experience. And that was my experience in a criminal
case that I handled that involved VA medical care. And I am
working in my capacity as Vice Chair of the Servicemembers and
Veterans Rights Subcommittee in a very positive way with VA
representatives on the issue of complete retrievable electronic
patient records.
Senator Blumenthal. In the Northern District of New York,
those claims came from which facilities?
Mr. Jaquith. We have two big VA medical centers in Syracuse
and in Albany.
Senator Blumenthal. And so you would defend the VA----
Mr. Jaquith. Yes.
Senator Blumenthal.----in those claims----
Mr. Jaquith. Yes, Senator.
Senator Blumenthal.----in Federal court.
Mr. Jaquith. When lawsuits are filed against the VA or its
doctors and caregivers, then it falls on the United States
Attorney's offices to provide representation, and it is in that
context that we often experience the issues with retrieving and
providing discovery of patient records.
Senator Blumenthal. You mentioned that there was a criminal
case. Did you--you prosecuted it, I assume?
Mr. Jaquith. I did, Senator. It involved a research
coordinator that was falsifying patient records to enroll and
maintain patients in cancer treatment studies, and a patient
died because his compromised liver and kidney function, as
would have been revealed by accurate laboratory results, made
him susceptible--made the infusion of chemotherapeutic drugs
fatal.
Senator Blumenthal. Because of your experience in those
cases, both civil and criminal, do you think you have any
predilection either for or against the VA?
Mr. Jaquith. No, Senator, I do not. I am certain that I
could be, if confirmed, fair and impartial in deciding all the
cases that come before the court.
Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
Senator Moran. Senator Tester.
Senator Tester. Yeah, thank you, Mr. Chairman. I just
wanted a quick statement to put into the record. I want to
ensure that I give Chairman Isakson the opportunity to review
the discussion. I know Adam is here and he will make sure he
gets the discussion. As such, I will confer with Chairman
Isakson on whether these matters should be discussed in closed
session, and then we will bring the Committee back at a later
date to have a broader discussion with all Committee members on
whether these issues require the meeting to be closed.
Look, I want to ensure that we are in accordance with the
rules of Senate. I also want to give Chairman Isakson the
opportunity to review the proceedings today.
I know we are waiting for another member to come. Chairman
Moran and I were just sitting here talking. You guys are really
incredibly qualified for this job, and I hope I am--I hope that
everything works out with the NSC stuff so that both of you can
get confirmed, because I think you are going to do a marvelous
job. And if you do not, I am going to be really disappointed,
because you certainly have the pedigree to do some really good
work and the experience to really meet the needs on the appeals
court, so thank you both for being here.
Mr. Laurer. Thank you, Senator.
Mr. Jaquith. Thank you, Senator, for your kind words.
Senator Moran. Senator Tester, thank you. I too confirmed
with Committee staff and here is my suggestion with the issues
that have been raised in regard, particularly, to Mr. Laurer
and his role at the NSC. What I would suggest is that Committee
members submit written questions to the witnesses, and those
questions then be answered by the witnesses in writing, to be
submitted to the Committee. And if the answer involves an
inability to answer the question, if the response involves the
inability to answer a question, then explain the legal
justification for that inability.
Then Senator Tester, the Ranking Member, and Senator
Isakson, the Chairman of the Committee, can then have the
conversation about what should be the next step, if any, in
regard to a different setting for this Committee. That would
put into the record the question, and it would put into the
record the legal basis for which the question was not answered.
And then you and Chairman Isakson can reach a conclusion to how
best to handle that circumstance.
I think this concludes our hearing. I always in hearings
that I chair if there is anything that either witness, either
of you would like to say, that has not been asked, that you
wish to correct something, you wish something was on the
record. And I have already taken too much time because Senator
Sullivan has now arrived.
But I will give you that opportunity when we conclude the
questioning by Senator Sullivan.
SENATOR DAN SULLIVAN
Senator Sullivan. Thank you, Mr. Chairman, and I apologize.
Thank you for keeping the hearing going here. This is an
important position. Congratulations to both of you.
You know, my state, the great state of Alaska, we have more
vets per capita than any state in the country. And one of the
biggest challenges that I have seen is the delay and the
backlog with regard to appeals. And so I would just like to get
your sense of how you would envision, both of you, addressing
doing the appellate work in a fair way, of course, but also in
an expeditious way. And are there ways in which you think we,
or the VA itself, or even under the current law, can help with
regard to addressing what is, I am sure you know, in certain
cases, years and years and years of delays with regard to
appeals that have built up? And I will just ask that of both of
you.
Go ahead, Mr. Laurer.
Mr. Laurer. Thank you, Senator. As you noted in your
question, the most important part is getting it right.
Senator Sullivan. Yes.
Mr. Laurer. That is the fairness. But I recognize clearly
that there is also a need to do so expeditiously.
Senator Sullivan. You know the saying, justice delayed is
justice denied.
Mr. Laurer. Yes, Senator.
Senator Sullivan. So it is a combination.
Mr. Laurer. Yes, Senator. So there have been a number of
steps already taken to address that, for example, the temporary
expansion of the number of judges that are on the court, that,
for four years, increases the size from seven to nine judges.
That, of course, will help, but at the same time, as was noted
earlier in the hearing, we have seen a significant increase in
the number of appeals coming before the court, up from
approximately 4,000 in 2017 to almost 7,000 in 2017.
So in addition there have been some other significant
developments, for example, with respect to the court's ability
to consider class actions and to aggregate similarly situated
claimants and appellants, and that is, of course, the Monk
case.
And so there are a number of things that are already
available. The legislature, of course, has the ability to
consider further ways to do this, everything from expanding the
court to any other number of measures that are available.
And then also, frankly, if confirmed, my commitment would
be to doing everything within my power to, for example, provide
clear decisions that are helpful throughout this process, and,
of course, if you do so as part of a panel or a banc, that has
precedent. And so those opinions and decisions have
precedential value. But also even with the single-judge
decisions, it is always best to have clarity, and that helps
not only the board but all the way down to the regional office
and to the individual veterans, because the clearer you can be
about the applicable law and regulations, the more efficient
the entire process becomes.
Senator Sullivan. I do not want to interrupt, Mr. Laurer.
Thank you.
Do you have a view on my question and the response?
Mr. Jaquith. I echo Mr. Laurer's hope that the systemic
changes, the Appeals Modernization Act and the potential for
aggregate case resolutions help. If confirmed, I would strive
to embody my common exhortation to lawyers in the United States
Attorney's Office more, better, faster. I will work tirelessly
to screen cases quickly, and if they are properly resolved by a
single judge, do so expeditiously with a decision that is
correct in law and fact. And on cases referred to panels, I
will promote celerity and clear articulation of the dispositive
rule of law to achieve justice in the case and maximize the
likelihood that the precedent will hasten the resolution of
other cases.
Senator Sullivan. Let me ask, just real quick, I think it
is appropriate, and I do not know how the work between the
Committee and the court of appeals actually--appeals court
works. But I do think that it is appropriate if, if confirmed,
and during the course of your time, you are seeing ways in
which things that are statutorily based and mandated are either
helpful or unhelpful, or ideas to make it more helpful. I think
it is certainly appropriate to make sure we get an update--this
Committee in particular, gets an update from you when you see
this in practice, if you have ideas and thoughts for
legislative reform.
So could I get a commitment from both of you to be willing
to do that and continue to work with this
Committee on these issues? Mr. Laurer.
Mr. Laurer. Senator Sullivan, you have my personal
commitment. As you are aware, there is also the annual reports
that are required under statute. That is one mechanism, but
that is not all that can be done.
Senator Sullivan. Yeah, sometimes a report can be kind of,
you know, bureaucratized to such a degree it doesn't say much.
So if you have views, we certainly would love to hear them.
Mr. Jaquith, can I get your commitment on that?
Mr. Jaquith. Yes, Senator, although I expect--I do not know
how the--what the inner working of the court is like in this
regard, and it may be that the proper way for those--any input
I might have, if confirmed, would be to come through the Chief
Judge.
Senator Sullivan. Yeah. No, we do not want any ex parte
communication or anything like that, but I think a continued--
you are going to be the experts. You are going to be on the
ground. You are going to see what works and does not work, and
I guarantee you it will be things that are good, things that
are not so good, and some of which we will need to address,
statutorily. I think this Committee has very common approach,
bipartisan approach, to see these cases done in an expeditious
but fair manner. If you have ideas on that, we would welcome
it.
Thank you, Mr. Chairman.
Senator Moran. Senator from West Virginia, Senator Manchin.
SENATOR JOE MANCHIN
Senator Manchin. Thank you, Mr. Chairman. First of all, I
want to thank our nominees for the service, both of you for
your service to our country and for stepping up to continue to
serve our veterans as judges of the U.S. Court of Appeals for
Veterans Claims. I know both of you are going to do an
excellent job, and I plan on voting and supporting you
wholeheartedly.
I take these nomination hearings very seriously. I enjoyed
meeting with both of you all yesterday in my office. However, I
am going to apologize right now for using my time here to
address the horrible deaths--the horrible deaths of veterans at
the Clarksburg VA, where last year up to 11 veterans were
murdered by a VA employee who used unauthorized insulin
injections to kill them.
For example, we know from reporting that the person of
interest was likely not certified to be treating veterans, that
the Clarksburg VA had a history of failing to report sentinel
events, that the number of deaths at the hospital during the
period in question was higher than normal, and that insulin at
the Clarksburg VA was not secured. These are all examples of
topics that we could dive into on a policy level that would not
harm the investigation and would begin to hold the VA
accountable and prevent this from happening at any other VA
facility.
The reason I am saying this is because Dr. Richard Stone,
the Executive Director, the executive in charge of the Veterans
Health Administration, recently wrote an op-ed. Now I had not
said a word, because they asked me not to, not to get this an
investigation as for veterans, an investigation which I think
we need, because they said it would impede their own
investigation, from a criminal investigation.
But Dr. Richard Stone, the executive in charge of the
Veterans Health Administration, at the VA in Clarksburg, wrote
an op-ed in the Clarksburg-area Exponent Telegram, and appeared
on a West Virginia television declaring--mind you, declaring
that the VA has already done--has already done what we should
do for accountability. I have been quiet, not wanting to impede
it. He is ahead of it when all of this happened, and now he is
saying everything is hunky-dory and fine, and blamed negative
press and headlines for bad perceptions of Clarksburg VA.
Well, I am sorry, Dr. Stone. That is not the case, and it
is definitely not the facts in West Virginia. The VA Inspector
General and Department of Justice have been leading an
investigation into a person of interest for nearly a year and a
half, without making any arrest. I have spoken many times to
Inspector General Missal and the U.S. Attorney for the Northern
District of West Virginia, Bill Powell, and understand that we
have to be careful not to interfere with an ongoing criminal
investigation.
But I want to know when our family members of victims are
going to get answers, and when are we going to have some
accountability, other than just an op-ed by the person in
charge saying everything is fine.
Something is wrong. My office receives more than 20 calls
per week from victims of family members of people who do not
even know if their family member's death at Clarksburg was part
of this string of homicides. Can you imagine losing a loved one
during this period of time, that now that it has been reported
that we had homicides and no one has any answers at all?
So we cannot figure out, at the VA, and investigators who
refuse to answer for the sake of protecting investigations.
Veterans all across West Virginia can contact our office, ask
me how is the VA going to be held accountable for many obvious
systematic VA issues that caused these murders to continue for
at least six months in 2018.
First of all, the insulin was not even secured. The
medicine was not even secured, how it was dispensed. Just so
many violations.
I have repeatedly called on my colleagues to immediately
hold a hearing. If it was in your state, if this happened to
any of your constituents, you would feel the same way as I do.
On the policies and procedures in place at the VA, it led to 11
veterans being murdered--11 veterans being murdered at the
hands of a VA employee. What type of background check did they
go through? How do we basically vet these people where they
should even be in any hospital setting, let alone a veterans'
hospital? But we have been cautioned that we cannot hold the VA
accountable until the investigations are completed.
Well, I respectfully disagree, and I will tell you why. I
ask my colleagues and the VA--if we cannot hold a hearing until
the investigation is completed, how can the VA write op-eds,
the head of the VA in Clarksburg write an op-ed declaring that
all is well and everyone and everything has been held
accountable at the VA?
If you were me, representing the people of West Virginia,
we have more veterans per capita than most any state. We rank
right at the top with Alaska and everybody else. And our people
are willing to go and fight and die for our country, and all we
are asking for is a simple answer to families, ``Did my dad get
killed or murdered, or was it natural causes? What happened?''
I have got all this going on now, a year and a half.
So I respectfully--I have been very respectful of this
Committee. I think it is a wonderful committee under the
leadership of both the Chairman, who is sitting in for our
Chairman Isakson right now, and the Ranking Member and my dear
friend, Jon. And I just--I feel so strong about this that we
can be seeing, have they made any corrections? Are we handling
the medication differently? Are we vetting basically people
working there? Have we gone back and looked at their
background, their experience level, if they had any type of
psychotic problems or psychiatry or mental illness that could
have caused something like this?
Something has happened. I am reading in the paper, which I
am not supposed to say anything or ask questions, but I have to
read in the paper every day in West Virginia, the person of
interest was a person that was monitoring the insulin levels to
make sure that it was working. That means it was making sure
that the hypoglycemia was going to work and kill them. Can you
believe?
This is what we are dealing with. And I hate to use this
time, because I think you two are going to be wonderful. I
support both of you. We had a great conversation. I think you
understand where I am coming from and my passion for this. But
I have compassion for the families and I cannot give them
answers. Enough is enough.
Senator Moran. Senator Manchin, thank you. I do not think
there is a question in there for either of the witnesses but I
appreciate you highlighting this issue, and I look forward to
working with you on a desired outcome. I know that you are
dealing with Chairman Isakson and the Ranking Member, Mr.
Tester.
If I talk any longer another Senator will arrive, so I
think I am going to conclude my remarks.
Again, I would suggest that there is a way to get this
issue of whether or not there is a closed or classified hearing
through written questions with appropriate response as to why
the answers cannot be--the responses cannot be given.
And anything that either one of you want to say before I
conclude the hearing?
Mr. Jaquith. No. Thank you, Senator.
Mr. Laurer. Senator, I would just like to again thank this
Committee, as well as the staff, for all of the tremendous
work. I know it is a huge effort and I really appreciate, with
respect to my nomination, all of the work. Thank you, sir.
Senator Moran. Surprisingly, Senator Tester did accurately
reflect the conversation that he and I had, which was that you
are both very impressive individuals and it is a pleasure to
hear what you have to say and to know that people of your
caliber are interested in serving in these capacities.
The hearing record will remain open for five business days
and any question for the record should be submitted to the
Chief Clerk no later than the close of business on Friday. That
is a little bit different time frame, but we need to see if we
are going to do confirmations, that this move expeditiously. We
are trying to follow your suggestions about how to get timely
results and have our business concluded in an appropriate time
frame. So close of business this Friday.
With that the hearing is adjourned.
[Whereupon, at 10:47 a.m., the Committee was adjourned.]
APPENDIX
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Material Submitted for the Hearing
Record
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