dojW000451.xml

dojW000451.xml

born-digital

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2001-11-21

Wednesday, November 21, 2001 9:47 AM
comments attached

Attachment 1:

November 15,2001

Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue NW
Washington, DC 20530

Email: victimcomp.comments@usdoj.gov


Re: September 11th Victim Compensation Fund of 2001
Notice of Inquiry and Advance Notice of Rulemaking


Dear Mr. Zwick:

We are writing in response to the "Notice of Inquiry and Advance Notice of Rulemaking," which seeks public comment on a range of matters critical to implementing the legislation designed to compensate victims of the September 11th terrorist attacks.

Public Citizen is a national nonprofit organization based in Washington, D.C., with 21,200 members in New York, Connecticut and New Jersey. Part of our mission is the promotion of government accountability and the assurance that victims of wrongful acts can pursue justice and fair compensation. Our interest in the implementation of the Victim Compensation Fund is that procedural regularity and fairness are ensured for our members and others affected by these incidences.

The following paragraphs represent our comments regarding the issues raised in the order presented.

Topics # 1 & 2:

Whether the Special Master should delay the "filing" of a claim under certain circumstances because of the limited statutory time frame? Yes. 120 days might not be sufficient time to properly prepare and document a claim. A claim should not be "filed" until the Special Masters deputy (or claims counselors) or other representative has determined that the claim is ready for decision. Delaying the filing until the application is complete will allow the claimant to obtain information necessary to allow the Special Master to make a reasonably informed decision. The Department should strive to avoid elevating form over substance in these proceedings.

Whether there are actions the Special Master should be required to take before he or she can accept a claim, or deem a claim "filed?" Yes. All acts necessary to prepare the claim for decision should be completed before the Special Master accepts or deems the claim "filed." Only then should the 120 day time period for decision begin to run.

Topic #3:

What procedures should be used in taking and evaluating evidence? We suggest that all evidence be submitted primarily via documents, including photographs, videotape and other demonstrative materials. If necessary, limits could be placed on the amount of such materials that would be received. Witness statements, affidavits, depositions and other supporting documentary evidence should be submitted at the time of the "filing." Oral hearings in the presence of a hearing officer should be based on the filing, designed primarily to summarize the filing, answer questions, display scars, etc.

The hearing officers should have experience in evaluating claims (former judges, personal injury attorneys experienced with mediation and facilitation hearings, etc.). These hearing officers should prepare proposed findings for consideration for the Special Master.

Whether the statute permits the Special Master to temporarily halt or toll the running of the clock, at the initiative of the claimant or otherwise? Yes. Section 405(b)(4) entitled RIGHTS OF CLAIMANT, provides claimant shall have the right to an attorney, to present evidence, witnesses and documents, and any other due process rights determined appropriate by the Special Master. This language appears to authorize claimant to initiate a temporary halt in the running of the clock upon a showing of good cause. Again, we believe it is Congress intent to compensate the victims in a timely fashion rather than to establish arbitrary time lines that work to prevent compensation.

Whether claimants should have the opportunity to appeal directly to the Special Master specific rulings or working decisions of a claims counselor or hearing officer on questions that arise in the course of the processing of the claim? Yes. We suggest that an appropriate appeal procedure within the process should be provided, as it is impossible to foresee the issues and problems that will arise. If necessary, the Special Master could create a council to hear and evaluate such appeals.

Topic #4:

What measures should be provided to assist claimants in preparing their "filing?" This is a remedial Act intended to compensate victims. As a result, its provisions should be liberally construed to accomplish that objective. Steps should be taken to provide personnel (claim counselors) to assist claimants with the preparation of their filing. Counseling and assistance with the completion of the application and collection of supporting documents should be provided. Likewise, the government should provide expert economists to evaluate the economic losses on the victims behalf, and present their recommendations as part of the filing. This should not be treated as an adversarial proceeding.

Topic #5:

How should claimant eligibility be determined? Again, we emphasize that this Act is remedial and should be construed liberally to provide compensation to victims of these terrorist attacks. In our opinion it is not wise or possible to attempt to define in advance the limits of such terms as present at, physical harm, or immediate aftermath. Attempts to establish rigid or artificial definitions should be avoided and the words should be given their common everyday meaning. The claimants individual circumstances need to be considered as provided in Section 405 before these decisions can be made. At this time there is insufficient factual information upon which to even attempt to draw these lines.

The personal representative. In all death cases, only the person appointed by the appropriate probate court should be allowed to apply for benefits from this fund. If only the personal representative can file for benefits, then, that person must first go to probate court and obtain letters of authority to act as decedents personal representative. If, as we proposed above, (see Topics #1&2), the filing is delayed until the papers are in order, the time required to obtain probate court authority will not count against the 120-day limit. Many issues can and will arise in death cases as to the class of individuals who qualify as next of kin or survivors. The statutes of the state involved govern these issues and the probate court has the experience to resolve those issues. These state statutes generally provide for notice by the personal representative to all those who are within the statutory class of survivors. They also vest sole discretion in the personal representative to make decisions regarding whether a claim will be filed and in what forum. People unhappy with decisions made by the personal representative are required to take their complaints to the probate court. If time becomes an issue the probate court can issue an order appointing some appropriate person to act as personal representative for the purpose of pursuing a claim against the fund.

Topic #6:

Whether and how schedules or statistical methodologies should be developed and used in reaching a determination for the compensation of claimants? If the regulations are drafted, as we suggest in Topics #1 & 2 above, so that claims are not "filed" until they are complete and ready for decision, then a lot of the time pressures are relieved. The hearing officers and Special Master can use the full 120 days solely for considering and deciding the individual claims. Sec. 405 (b) requires that the amount of compensation shall be based on the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant. While all claimants must be treated fairly, the statute does not require that all claimants receive the same amount of compensation. In fact, it requires just the opposite. The Act requires that each claim must be evaluated on its individual circumstances. Our civil justice system has never accepted the proposition that all injured persons or survivors of decedents are entitled to equal compensation. This Act clearly did not make that a requirement.

Analysis of economic loss. We agree that experts in the analysis of economic loss should be provided by the Special Master to assist claimants in gathering and presenting the pertinent economic loss information. These experts are widely available and frequently used in catastrophic injury and death cases. It is possible that many economists may offer their services free or for nominal fees.

Non-economic loss. Section 402 (7) sets forth a very broad definition of non-economic loss, and concludes with the phrase, "and all other nonpecuniary losses of any kind or nature." Based on this language, the Special Master is required to determine non-economic loss claims on a detailed claim-by-claim basis. The statute requires consideration of the individual circumstance of each case. The non-economic loss should be decided based on the materials presented (family and witness statements, photographs, videotapes, etc.) and, necessarily, the good judgment and discretion of the Special Master. Unfortunately, these decisions are not amenable to resolution by "standards."

Collateral sources. Sec. 402(4) says collateral source means "all" collateral sources, including life insurance, pension funds, death benefit programs, and payments by Federal, State, or local governments related to the terrorist-related aircraft crashes of September 11, 2001. Sec. 405 (b)(6) provides that the Special Master shall reduce the amount of compensation determined under paragraph (1)(B)(ii) by the amount of the collateral source compensation the claimant has received or is entitled to receive as a result of the terrorist-related aircraft crashes of September 11, 2001. It is immediately apparent that the Act does not define the term collateral source, rather it provides a brief list that is only illustrative.

The language contained in Section 402(5), which provides, in defining economic loss, that such losses may be recovered "to the extent recovery for such loss is allowed under applicable State law," requires that state law controls the subject of collateral sources.

Whether the Act permits the Department to exclude charitable contributions from the definition of collateral source? Yes. Charitable contributions are not within the typical definition of collateral source followed in most states. (E.g. New York, McKinneys CPLR s4545) More importantly, we believe that everyone must recognize that none of the victims of this terrible tragedy can or will ever be made whole. Therefore, there should be little or no concern that these victims will be unjustly enriched. Moreover, one of Congress objectives in creating this unique fund was to encourage victims to apply to this fund rather than resort to traditional litigation. Reducing compensation through so-called collateral source payment offsets could provide an incentive to not use the fund for relief, but instead to use the courts.

Whether in kind and/or material contributions could or should be considered collateral sources? No. Under the accepted meaning of collateral source, in kind contributions are not included. In the Acts definition of collateral source in kind contributions are not mentioned and the list of illustrative examples consists exclusively of programs and payments of specific items of economic loss.

Whether potential future collateral source payments are ones that individuals are entitled to receive for purposes of Section 405(b)(6)? As indicated above, we believe state law controls this. New York, for example, requires that in order to find that any future cost or expense will, with reasonable certainty, be replaced or indemnified by the collateral source, the court must find that the plaintiff is legally entitled to the continued receipt of such collateral source, pursuant to a contract or otherwise enforceable agreement, subject only to the continued payment of a premium and such other financial obligations as may be required by such agreement.

Whether claimants are entitled to receive credits for premiums paid and the cost of securing fringe benefits that are offset as collateral sources? Yes. State law controls this question. Most states with collateral source statutes, including New York, provides plaintiffs with credit for premiums or other consideration paid to purchase the applicable collateral source. For example, if a claimants decedent had paid $20,000 in life insurance premiums to purchase a life insurance policy, it would not be fair to reduce his familys compensation from the fund by the full face value of the policy when he paid a significant sum to purchase the policy.

Whether collateral sources entitled to a lien against plaintiffs recovery should be excluded from the definition of collateral source? Yes. State law controls this question. Most states with collateral source statutes, including New York, exclude as collateral sources those payers that are entitled to lien against the recovery and have a procedure for making those determinations. The same rules should apply here.

Periodic payments to eligible individuals. The Act is silent regarding whether payments to eligible claimants will always be in single lump sum payments or may consist of the purchase of annuities that will thereafter make payments to the claimants over a period of time. Structured settlements are an accepted means of providing compensation to victims in similar circumstances and should be available to those claimants who accept the wisdom of that alternative.

CONCLUSION

Thank you for the opportunity to make these comments and suggestions. This Act provides our government a unique opportunity to provide real and deserved compensation to all of those unfortunate victims of the September 11th attack. If you have questions, please feel free to contact Public Citizen at your convenience.

Sincerely,



Comment by:
Public Citizens Congress Watch

2001-11-21