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2002-01-10

Thursday, January 10, 2002 1:40 PM
Baumeister & Samuels VCF Comments




Attachment 1:


January 10, 2002
VIA ELECTRONIC MAIL AND FEDERAL EXPRESS
Mr. Kenneth L. Zwick
Director, Office of Management Programs
Civil Division
United States Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Re: September 11th Victim Compensation Fund of 2001

Dear Mr. Zwick:

The following are our comments with respect to the regulations promulgated by the
Department of Justice on December 20, 2001 concerning the administration of the September
11th Victim Compensation Fund of 2001 (the "Fund"). As will be demonstrated herein, the
regulations, as presently written, are in direct contradiction and violation of the statute. The
statute required that claimants receive compensation for economic and non-economic losses as
specifically delineated in the statute. Simply put, the regulations are a betrayal to the families
who have suffered enormously as a result of the tragic events of September 11th and they must be
rewritten to conform to the statute.

In addition, some of our comments are preliminary as we have requested in writing
additional information from Kenneth R. Feinberg, Esq., Special Master to the Fund, concerning
the formula and criteria used to calculate economic loss under the presumptive award guidelines.
We have also requested that he provide us with the factors that were considered in determining
the presumptive awards for non-economic loss. To date, we have not received a response to our
inquiries. See letters dated December 27, 2001, January 4, 2002 and January 8, 2002 collectively
attached as Exhibit "A".

As will be set forth below, the regulations are in direct contradiction to the statute which
created the Fund. Accordingly, they must be rewritten so as to promote the purpose and intent of
the statute, which is to provide compensation for the economic and non-economic losses suffered
by each claimant based upon the individual facts and circumstances of each claim. As currently
written, the regulations group together different cases and award like amounts based simply upon
minimal demographic information, i.e., age, earnings, marital status and number of dependents.
The pre-determined and presumptive awards, by definition. do not account for the individual
facts of each claim and, therefore, this approach must be discarded in favor of a process that will
allow awards to be based upon the actual damages of the claimant without any pre-determined
limits or caps. This approach is precisely what the statute calls for; the statute does not allow the
Department of Justice and/or the Special Master to limit or cap awards. As such, the present
regulations are contrary to the law. See Act, at 405 (b).

The Act specifically defines the recoverable elements of economic and non-economic
loss. Under the Act, economic loss is defined as:

ANY PECUNIARY LOSS RESULTING FROM THE HARM; including,

LOSS OF EARNINGS; or

OTHER BENEFITS RELATING TO EMPLOYMENT;

MEDICAL EXPENSE LOSS;

LOSS DUE TO DEATH;

BURIAL COSTS; and

LOSS OF BUSINESS OR EMPLOYMENT OPPORTUNITIES;

to the extent that the foregoing losses are allowed under applicable State law. See Act, at 402
(5).

Nothing whatsoever in the Act allows the determination of economic loss to be limited to
a pre-determined or presumptive amount. Moreover, no potentially applicable state law allows
for the calculation of economic loss to be based upon pre-determined, presumptive or "capped"
income. Rather, the calculation of economic losses must be based upon the decedent's actual
economic circumstances. Id.

ECONOMIC LOSS

As set forth above, the Act requires the Special Master to calculate the extent of the
economic harm suffered by the claimant. Id. The parameters for economic harm are contained
within the statute itself and leave no discretion to the Department of Justice and/or the Special
Master to limit same in any fashion. See Act, at 402 (5). Had Congress intended to impose a
limit on economic loss, it would have simply said so in the Act.

The regulations which address the calculation of economic loss violate the express terms
of the Act in a number of respects. First, the regulations state that for purposes of the Special
Master's analysis in determining economic loss, the maximum amount of yearly income that will
be recognized for computation of an award are earnings up to but not beyond the 98th percentile
of individual income in the United States for the year 2000 or $231,000.00. See 28 CFR
104.43.

This limitation or "cap" on earnings has no support or justification within the Act. The
statute does not permit economic losses to be limited in the manner prescribed in the regulations
and, as such, the regulations contradict the statute. Moreover, the Department of Justice and/or
the Special Master do not cite any authority from the statute to allow a limitation of annual
earnings to this arbitrary and pre-determined figure, nor do they cite to any state statute which
permits an economic analysis to be limited in the manner set forth in the regulations.
Accordingly, the regulations must be rewritten to allow for the recovery of full economic loss
based upon the actual earnings of the decedent.

Contrary to the statement published by the Special Master, the determination of economic
loss based upon actual earnings is not a theoretical analysis based upon mere speculation.
Rather, it is an analysis done in courtrooms every day across this country and it is what is
required when evaluating economic loss.

Second, the regulations set forth pre-determined and presumptive awards for economic
loss, but fail to set forth the manner in which the economic loss was calculated. For example, the
regulations attempt to establish pre-determined awards based upon income, age, marital status
and dependents. The economic loss calculations are purportedly based upon a number of
economic criteria including gross earnings, retirement age, tax rate, reduction of the award to
present value using an unknown discount rate, as well as a reduction of the award based upon the
personal consumption of the decedent, yet no consumption rate is contained within the
regulations. Also, the regulations are silent as to the manner in which each of the foregoing
criteria were utilized in the calculation of the pre-determined and presumptive awards for
economic losses.

As previously indicated, my office has sent a number of letters to the Special Master
requesting the precise manner in which a claimant's economic losses were calculated, including
the formula and factors considered in this analysis. Regrettably, the Special Master has not yet
responded to our inquiries and, as such, it is impossible to comment on the manner in which
these figures were calculated. When, and if, we receive the requested information, we will
provide additional comment.

Moreover, the Act requires that the analysis for economic losses be determined by the
individual circumstances of the claimant. The publication of pre-determined and presumptive
guidelines, by definition, do not take into account the individual circumstances of a claimant.
The career path of a particular claimant, average wage increases within that claimant's industry,
average wage increases given by the claimant's employer, individual consumption rates,
individual habits of savings, and the value of household services contributed by the decedent are
all essential elements of any analysis. The generalized grouping together of cases based upon
minimal demographic criteria is contrary to the statute. As a result, the pre-determined
presumptive awards for economic losses must be eliminated and the regulations rewritten to
permit economic losses to be calculated in each individual case based upon the facts of the claim.

Third, the factors utilized by the Department of Justice and/or the Special Master take
into account only "certain employer benefits (such as premiums for medical coverage paid by the
employer)". See Presumed Economic and Non-Economic Loss Tables, II (A) at Step One, 28
CFR 104. The regulations with respect to the calculation of economic loss apparently omit
other elements of significant employee compensation such as pension benefits paid by the
employer, contributions by the employer to retirement programs, stock option grants, etc.
Contrary to the statute, the Department of Justice and/or the Special Master have simply omitted
these significant elements of employee compensation from their pre-determined and presumptive
calculation of economic loss. Therefore, the regulations must be rewritten so that economic
losses include these significant elements of compensation.

NON-ECONOMIC LOSS

The Act defines the elements of non-economic loss as follows:

LOSSES FOR PHYSICAL AND EMOTIONAL PAIN;

SUFFERING;

INCONVENIENCE;

PHYSICAL IMPAIRMENT;

MENTAL ANGUISH;

DISFIGUREMENT;

LOSS OF ENJOYMENT OF LIFE;

LOSS OF SOCIETY AND COMPANIONSHIP;

LOSS OF CONSORTIUM (not domestic services);

HEDONIC DAMAGES;

INJURY TO REPUTATION, and

ALL OTHER NON-PECUNIARY LOSSES OF ANY KIND OR NATURE. See Act, at
402 (7).

As with economic losses, the Act does not limit or cap the recovery of non-economic
losses to a pre-determined or presumptive amount. Instead, the Act requires that the award for
such losses shall be based upon the individual circumstances of the claimant, the facts of the
claim and the harm to the claimant. See Act, at 405 (b).

As set forth above, pursuant to the terms of the Act, the Special Master is required to
make an award for all elements of non-economic losses. Nothing in the statute allows the
Special Master to place a pre-determined amount upon any of these statutorily prescribed
elements of recovery.

Contrary to the express language of the statute, however, the regulations impose a pre-
determined, presumptive and arbitrary value upon non-economic losses, i.e., $250,000 for the
pre-death pain and suffering of the decedent, and the spouse and dependents of the decedent shall
each receive the total sum of $50,000 in compensation for their above described losses. See 28
CFR 104.44.

This approach to the valuation of non-economic losses, however, is nothing more than an
arbitrary and capricious determination of the value of non-economic losses suffered by each
family. Moreover, these arbitrary valuations have been decided upon without the Special Master
hearing any evidence whatsoever with respect to a particular claim.

The statute sets forth various components of non-economic loss as well as allow recovery
for all aspects of non-pecuniary loss of any kind whatsoever. Congress did not limit the non-
economic recovery as is contained in the regulations. Rather, with respect to the determination
of compensation, Congress specifically mandated that the Special Master "shall review a claim . .
and determine . . the extent of the harm to the claimant, including any economic and
noneconomic losses". See Act, at 405 (b)(emphasis added).

Accordingly, the regulations must be rewritten to allow for non-economic losses to be
based upon the individual circumstances of each claim. The regulations' reliance upon pre-
determined awards for this aspect of recovery must be eliminated and the Special Master and/or
an impartial hearing officer must be required to make awards based upon the specific facts of the
claim.

BURDEN OF PROOF

As set forth in detail above, the regulations must be rewritten and the pre-determined
presumptive award guidelines eliminated in favor of a system which is mandated by the statute,
i.e., a determination based upon the individual facts and circumstances of each claim. As
written, the regulations require that for the claimant to be successful in obtaining an award in
excess of the pre-determined presumptive guidelines, he or she must demonstrate "extraordinary
circumstances not adequately addressed by the presumptive award methodology." See 28 CFR
104.31(b)(2) and 28 CFR 104.33(f)(2)(emphasis added).

Simply put, placing this burden upon the claimant is an utter abuse of discretion. There is
no justification for this action contained in the Act and the Department of Justice's and/or the
Special Master's reliance upon a claimant's showing of "extraordinary circumstances" is contrary
to the direct mandate of the legislation.

Moreover, the Department of Justice and/or the Special Master do not cite any statutory
authority for their determination that a showing of extraordinary circumstances is necessary to
obtain an award in excess of the arbitrarily pre-determined and presumptive award guidelines.
Rather, they have determined that in their view, "absent extraordinary circumstances, awards in
excess of $3,000,000 Dollars will rarely be appropriate in light of individual needs and
resources." See 28 CFR 104, at Statement by the Special Master (emphasis added).

Contrary to the express language and mandate of the statute, the Department of Justice
and the Special Master have exceeded the breadth and scope of their authority and have pre-
determined that no award, prior to collateral offset, should exceed $3,000,000. This limitation
has no support other than the subjective, arbitrary and capricious determination of the
Department of Justice and/or the Special Master. Had Congress intended for awards not to
exceed a certain sum, it simply would have said so in the Act. Moreover, nowhere in the Act
does Congress state that awards should be based upon any limiting factor. Rather, the statute
requires that the recovery reflect the economic and non-economic harm suffered by the claimant.

Accordingly, the requirement of "extraordinary circumstances" must be stricken from the
regulations.

PROCESSING OF CLAIMS

The regulations propose two separate tracks in which to process claims. See 28 CFR
104.31. We propose that when rewritten, the regulations add an additional track identified as
"Track C".

Under Track C, claimants will have the ability to submit their individual information to
an independent and non-political evaluator who will conduct a hearing and issue an advisory
award concerning the claim. Under this scenario, the claimant will not waive any right
whatsoever upon submission of the claim under Track C. This procedure conforms to the statute
in that under Track C claims, the claimant will not receive an actual award, but, rather, he or she
will receive an advisory opinion as to the valuation of the claim.

With respect to the hearing officers utilized to process claims under Track C, we propose
that they be retired judges who are well experienced in evaluating claims of this nature. My
office contacted &nbsp&nbsp&nbsp&nbsp , Vice President of &nbsp&nbsp&nbsp&nbsp ,
located at &nbsp&nbsp&nbsp&nbsp . &nbsp&nbsp&nbsp&nbsp advised that &nbsp&nbsp&nbsp&nbsp will
make available at least 100 retired judges to evaluate claims under "Track C". She further
advised that &nbsp&nbsp&nbsp&nbsp would reduce their rates in light of the unique and tragic circumstances
surrounding this matter. Budgetary constraints are not an issue with respect to the hiring of
hearing officers as the statute specifically mandates that the Special Master has the authority to
hire and employ these types of hearing officers. See Act, at 404 and 406.

After the issuance of an advisory award under Track C, the claimant and the Special
Master shall have ten (10) days from the date of the award to accept, reject or negotiate same. If
the advisory award is accepted by both the Special Master and the claimant, the advisory award
will be deemed the final award as if a claim had been submitted to the Fund. In accordance with
the statute, the claimant shall then receive payment within twenty days of the award's acceptance.
Should either party reject the award, the claimant shall have the ability to either file a civil
lawsuit seeking damages or submit a claim under Tracks A or B.

HEARING

The Act states, inter alia, that each claimant shall have the right to present evidence,
including the presentation of witnesses and documents, in order to establish a claim under the
Fund. Act, at 405(b)(4). The statute does not limit the hearing in any manner whatsoever.

Contrary to the mandate of the statute, the Department of Justice and the Special Master
have pre-determined that the length of the hearing shall be limited in length generally not to
exceed two hours. See 14 CFR 104.33. This pre-determined hearing limit of two hours is in
contravention to the express language and mandate of the statute in that this limited time will not
provide the claimant with his or her due process right to present evidence as set forth in the Act.
See Act, at 405 (b) (4). The ability to present evidence and testimony at a hearing becomes
even more critical in light of the Department of Justice's and/or the Special Master's requirement
that a claimant establish "extraordinary circumstances" to justify a higher recovery than set forth
in the presumptive guidelines.

Given the tremendous burden imposed upon the claimant, it will be necessary to present
as much testimony and evidence as possible in order to establish "extraordinary circumstances"
to justify a recovery that differs from the presumptive guidelines. This arbitrary time limit
imposed by the Department of Justice and/or the Special Master is nothing more than an attempt
to curtail the claimant's ability to present such evidence and, therefore, will have the effect of
limiting awards under the Fund. Had Congress intended for the hearing to be limited to a
specific time, it would have set forth this time period in the Act. Moreover, the effect of this
arbitrary limitation on the length of the hearing is contrary to the intent and purpose of the statute
which is to provide recovery for the economic and non-economic losses suffered by the claimant.
Accordingly, the two hour time limit must be discarded and the claimant be allowed as much
time as necessary to present the claim.

RECORD OF HEARING

In all likelihood, the hearing will be conducted by a hearing officer instead of the Special
Master. As such, the hearing should be recorded and the hearing officer should be required to
make a written determination of the award, including identifying and detailing the information
relied upon by the hearing officer in making his or her determination.

If the claimant feels that the award is inappropriate for any reason whatsoever, the
claimant should then have a right to file an appeal with the Special Master and the Special
Master shall then be required to review the award as well as the facts considered by the hearing
officer in making the award. In this fashion, since the hearing will be recorded, a claimant who
chooses to appeal such a determination to the Special Master will have a basis to do so.

The regulations also state that the Special Master has the right to publish some or all of
the awards. See 28 CFR 104.34. The regulations must require that each award along with the
specific demographics of the decedent, i.e., age, marital status, number of children and
dependents, earnings, occupation, etc., be published to insure that all claimants are being treated
fairly and that no "side deals" are agreed to between parties.

DISTRIBUTION OF AWARD

The regulations require that the Personal Representative distribute the award consistent
with the law of the decedent's domicile. Notwithstanding this provision, the Special Master has
the right to require the Personal Representative to distribute the award pursuant to his directive if
he determines that the proposed plan for distribution does not adequately compensate the spouse,
children and/or other relatives. See 28 CFR 104.52.

The statute, however, was intended to compensate relatives of a deceased individual. See
Act, at 403. Since the Fund was created to provide compensation to the relatives of a decedent,
the Special Master should identify in his award the specific awards for each individual eligible to
share in the recovery. In this way, the Personal Representative will not have the ability and/or
authority to distribute the award. Rather, the Special Master shall compensate each individual
deemed eligible for the specific economic and non-economic losses that each has suffered.
Certainly, each individual relative eligible to share in the award suffered different economic and
non-economic damages as a result of the decedent's death. Since the Fund was established to
compensate these individuals, this decision should be left to the Special Master as to the damages
that each eligible individual suffered based upon the facts and circumstances of the claim.

ADDITIONAL MATTERS

The regulations define dependency as the spouse of the decedent and/or someone who
was claimed as a dependent upon the deceased individual's 2000 federal tax return, and any child
born after January 1, 2001, as well as any individual who became a legal dependent of the
decedent after January 1, 2001. We believe, however, that the term dependency should not be
limited to those individuals identified on the tax return, but rather, should include anyone who
was financially or emotionally dependent upon the decedent.

With respect to collateral sources, although the regulations state that charitable donations
shall not be considered collateral sources, Special Master Feinberg has the discretion to deem
private charitable payments as collateral source offsets and as such, deductions from the award.
See 28 CFR 104.47 (b) (2). The regulations must specifically state that all charitable payments
of any kind whatsoever are not to be deemed collateral source offsets. Special Master Feinberg
should not be given the discretion to determine what is in fact a charitable contribution. It is
generally accepted that "collateral source" refers to contractual payments made to a claimant
which compensate for economic losses. The regulations should make it clear that there shall be
no collateral source deduction for payments made to victims and/or their families outside of a
contractual agreement, including, private gifts to the victim and/or surviving family members.

Lastly, under the compensation plan envisioned by the Department of Justice and/or the
Special Master, it is possible for claimants who submit claims under the Fund to receive
absolutely nothing. This result is more than likely for those claimants whose loved ones had the
forethought to obtain life insurance policies and who have received other significant collateral
source payments. The regulations should specifically set forth a minimum payment that each
claimant will receive from the Fund regardless of the collateral source offsets.

Certainly, the Act intended to compensate each claimant who files a claim under the
Fund. Accordingly, the Act's essential purpose would not be met if a claimant was entitled to
receive nothing from the Fund. Establishing a minimum award would be in the best interests of
all claimants and would provide each claimant with the security of some type of recovery from
the Fund.

As aforementioned, it is our intention to submit additional comments once we receive
responses to our repeated inquiries to the Special Master concerning the calculation of economic
and non-economic losses.

Very truly yours,

Individual Comment
New York, NY

MFB:cm
Enclosures

2002-01-10