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Floor Speech
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Mr. DURBIN. Mr. President, at the outset, let me thank my colleague from Alaska for his service to the United States of America and the Marine Corps, and let me thank all the women and men who serve in the Marine Corps and all our branches of military service. We owe them a great debt of gratitude, and we certainly owe them justice.
What is at issue here is the discovery that the water that they were drinking while they were training at Camp Lejeune was poisoned, and it was endangering the health of the marines and their families. For years, they sought compensation and protection and failed. And just this last year, we passed the PACT Act. Under that provision of law, it finally gave a cause of action to these marines and their families to recover for the damages they had suffered because of this poisonous water at this U.S. Government facility training camp at Camp Lejeune. I voted for that, proudly. It was a strong bipartisan rollcall, as it should have been. But let me make sure you understand and everyone listening understands what these marines who believe that they have been damaged by this poisoned water--this contaminated water--have to go through now to recover even the first dollar.
The first instance is, they don't receive it automatically. The Senator from Alaska continues to refer to the Biden administration's standards of 2 percent and 10 percent and so forth. He is quoting from a hypothetical that dealt with the Compensation Fund, not what we passed here in the U.S. Senate.
The Compensation Fund is like for 9/11 victims. We understand those cases. It wasn't a question of the victims going in and proving that 9/ 11 actually occurred or that their loved one was killed. It was almost an automatic thing that you qualify for. So the low contingency fees which he quoted was for a hypothetical approach which is not the law.
What is the law today?
What if my father or someone in my family--my son--had gone through training at Camp Lejeune in the period of time that is affected by this? How do they recover? There are two avenues to recovery. One of them is file a claim with the U.S. Navy, and the Navy can decide that the claim is meritorious and pay it.
But if the Navy does not pay it, the administrative hearing does not result in a payment to the plaintiff, to the claimant, to the marine, the next step is a serious one. It goes to the Federal court, not just any Federal court but the one we designated, the Eastern District of North Carolina.
What happens at that court? That marine now is walking into a Federal courtroom and has to establish a case and prove the liability of the government for his losses.
What does he have to prove? Well, he has to prove causation, liability, and damages.
Have you ever been in a Federal courtroom or walked in there by yourself and seen what happens? I am telling you that it is a humbling experience even for a trained lawyer.
I have been through it, and I will tell you this: I wouldn't want to go through it with something as serious as recovering damages for healthcare costs or injuries to someone dear to me and my family without having adequate legal representation.
What does it cost to get this representation?
Well, there is no requirement that the marines hire a lawyer at all, but if they do, the ordinary course of business says that they are going to pay a contingency fee, which means you don't pay the lawyer upfront. The lawyer basically represents you, and if they recover, then you recover, but if they don't recover anything for your claim, they are emptyhanded as you are emptyhanded. That is the nature of a contingency fee.
The Senator from Alaska came to the floor about 2 weeks ago and raised this issue, and I said: Let's work on this together. I want to say our staffs have worked on it together. I am sorry that we haven't reached an agreement, but here was the proposal that I put on the table and the reason for it.
First, on the contingency fee, if you are just going to go to the Navy and file your administrative claim, we put a cap on the contingency fee, which the lawyer is paid, of 20 percent--20 percent. Where did we get that? From the Federal Tort Claims Act. That is the percentage that is used now under the law. Then we said, if you have to go to a trial in a Federal court, the maximum--maximum--attorney's fee is one-third if you recover. If you don't recover, you don't pay. It is a contingency fee.
Now, the Senator from Alaska has said: Well, let's do 2 percent and 10 percent instead of 20 percent and 33 percent.
So what can you buy for a 2-percent contingency fee or a 10-percent contingency fee? Well, you can probably buy a lawyer who has never tried a case in court. You could buy an attorney whose office is in the trunk of his car. You could buy an attorney who will put the veteran's file at the bottom of the stack because there is so little money involved in it--or you could buy an attorney who will say: My paralegal in Singapore will get back to you later.
That is what you get if you try to get by with 2 percent and 10 percent when, in the ordinary course of business, it is 33\1/3\ percent. You are doing the veterans no favor by saying that they can't pay any more than a 2-percent contingency fee if they can't find a good lawyer, and I am sorry to say you won't find a lot of good lawyers at a 2-percent contingency fee. That is just the reality.
We went to the Senator from Alaska and said: We will cap the contingency fees: 20 percent for an administrative case and no more than a 33\1/3\-percent contingency fee if the case goes to trial.
Then we went further. He raised a point that I think is a valid point: How does a marine know he is going to get paid? We think the lawyer will be paid, but will the marine be paid if there is a verdict or a settlement? We put in language that said, definitely, the marine has to be the first paid. We offered that to the Senator from Alaska.
We went further. There is a bill pending before the U.S. Senate--a bipartisan bill. Senator Blumenthal of Connecticut and Senator Boozman of Arkansas, a Republican, have come up with a bill that says: Those people who are ripping off veterans--unaccredited groups that are ripping off veterans--by making them pay fees to collect the benefits they are owed by law ought to be criminally liable. There is a criminal fine in that bill.
So those are the three things we offered to the Senator from Alaska. It was not that he would go away emptyhanded but that he would get a result and get that result in a timely way. We made that offer over the last 2 weeks. He did not accept it. I wish he had.
I am still going to work with him to reach that goal so that we can make sure that all men and women who are affected by the Camp Lejeune contaminated water get compensated with competent attorneys who can represent them in court effectively and recover for them. We are doing them no favor if we limit the contingency fee and they can't hire a competent attorney. That is the maximum amount, 20 and 33, but it is certainly within the realm of ordinary practice.
So I would say to the Senator from Alaska that the offer I made 2 weeks ago I make to you again now. Let's fix this problem. Let's not trade speeches on the floor of the Senate. We both feel intensely about our points of view, but we share one common value that, I think, we ought to make very clear here: We want these marines to be compensated. That is why we passed the PACT Act. We want to do it in a way that they are not exploited. I abhor those attorneys or even those who are not attorneys who are trying to exploit these individuals.
Let's work together to put an end to that once and for all, and let's do it in a timely way. By the time we get back here to consider legislation, it will be almost February--another 6 weeks or longer--and time will have been wasted.
I would just say to the Veterans Health Administration and to all of the veterans' services organizations: Warn all of those who would be plaintiffs in these lawsuits not to be taken in by anyone who is going to cheat them. Make sure that they are treated fairly. We can do our part too. Let's pledge together to get that done in the new year.
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Mr. DURBIN. Mr. President, I want to close by thanking the Senator from Alaska--a Republican, a Democrat but committed to the same values--for making sure that these marines and their families are treated fairly.
We currently have 14,000 pending. These marines had 2 years from when we passed the law back in, I believe, June or July to file their claims. There is going to be a mountain of claims involved here, and we have got to make sure that we do it in a thoughtful way and in a timely way that is fair to the marines every step of the way. I will be part of that effort with you, Senator. 6513 is not agreed, the motion to concur with amendment be withdrawn; and that if cloture is invoked, by the use or yielding back of time, the second- degree amendment be withdrawn.
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