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2001-11-25

Sunday, November 25, 2001 10:35 PM
Victims Compensation Fund - Notice of Inquiry


Dear Attorney General John Ashcroft,


We are the surviving daughters of , a passenger on . Our mom and thousands more were injured and murdered on September 11, 2001, leaving behind the grieving families of which we are a part. Our emotional reservoirs have been sapped low by grief, the foundations of our lives shaken and our coping skills challenged. The diverse futures upon which our eyes were cast before September 11th are now lost from our view. We will replace them, but with what and how we are not certain.


The Congress and the President have put in your hands the means that will help us begin to shape our futures. We urge you to shape the regulations you now consider so that we may see with hope what our lives might come to be.


Attached to this e-mail is the comment of the Family of in response to Notice Of Inquiry And Advance Notice Of Rulemaking Of The Civil Division Of The Justice Department [CIV 104P; AG Order No. 2531-2001] RIN 1105-AA79.


We would like very much to participate further in the detailed articulation of the rules under your consideration.


Very truly yours,




Daughters of




Attachment 1:
September 11th Victim Compensation Fund of 2001


Comment of the Family of
In Response to
Notice Of Inquiry And Advance Notice Of Rulemaking
Of
The Civil Division Of The Justice Department
[CIV 104P; AG Order No. 2531-2001]
RIN 1105-AA79


INTRODUCTION


and , daughters of , a passenger on on September 11, 2001, submit this response to the Notice of Inquiry.


We recognize that we have only three effective means by which to obtain financial redress for the harm we, and our family, have suffered and will continue to suffer: (a) commence litigation in the United States District Court for the Southern District of New York; (b) file a claim for compensation under section 405(a)(1) of the September 11th Victim Compensation Fund of 2001 ("the Act"); and/or (c) apply for charitable relief. Only the first option, commencement of litigation, will afford us an opportunity to actively participate in the discovery of the truth about the causes of our injuries and the death of our mom. Until the Attorney General, in consultation with the Special Master, has promulgated the regulations mandated by the Act, we will have no basis upon which to choose from these alternatives.


Because the Act has effectively capped the pool of funds available from the air carriers to the limits of the liability coverage maintained by them and because the magnitude of the potential claims (not only for bodily injury and death, but for property damage and other economic loss) is enormous, the regulations under consideration by the Attorney General must afford full compensation to the entire population of victims and survivors of victims of the September 11th attacks or the only remedy available to them will be charitable donations. For a wide variety of reasons (e.g., the Internal Revenue Code limitations on charitable giving, limited available resources, the inconsistent functioning of charitable organizations, etc.), we, and the other families impacted by this horrible tragedy, have little expectation of obtaining substantial charitable relief. Therefore, the regulations promulgated by the Attorney General are of critical importance to us and the thousands of other grieving families. It cannot be forgotten that the families of September 11 are all innocents. We all have been and feel victimized. The rest of the country has or will separate itself from the events of September 11th. We, and every other family, have not and likely never will. We all need not only the means with which to attempt to rebuild our lives but a process that validates our uffering.

Our recommendations focus on four basic issues:


1. The population of eligible applicants;
2. Rules of evidence and substantive law designed to determine the full and fair value of claims before any collateral sources are deducted;
3. Interpretation of the term "collateral sources"; and
4. Making the process simple, convenient, fair and fast.


We address these issues in each of the topics contained in the Notice of Rulemaking in the order presented there.


Topics 1 and 2: The Forms To Be Used in Submitting Claims Under This Program and the Information To Be Included on the Claim Form


The American Trial Lawyers Association has promised to provide pro-bono service to all persons who wish to make claims under the Act. This promise should be confirmed. The form should be drafted with the expectation that an experienced trial lawyer will fill it out.


In the case of an applicant who claims to represent a deceased victim (i.e., "the Claimant"), the form should require disclosure of the names, addresses and phone numbers of all presumptive relatives of the decedent (see Topic 5) and whether or not such person has been appointed to represent the decedent by a court of competent jurisdiction. Similarly, in the case of an injured victim, the form should require that the Claimant disclose the names, addresses and phone numbers of his/her relatives. See Topics 3 and 5.


In the case of an applicant who claims to be an eligible survivor of a deceased victim, the form should require an affidavit of that individual setting forth the relationship with the decedent and a statement setting forth the basis upon which he/she claims eligibility. A copy of the death certificate application should be encouraged, and if submitted, should be deemed sufficient to prove eligibility.


Although the form should contain a statement that the American Trial Lawyers Association will provide an attorney at no charge to assist in the preparation of the form and the representation of a claimant throughout the process, it should also contain a statement that the reasonable fees of a private non-pro bono attorney should not exceed 10% of the award the applicant receives. See Topic 4.


The form should inform the applicant that the form will not be deemed to have been filed until the Hearing Officer has determined that an appropriate representative of the decedent has been determined and the last survivor seeking status as an eligible applicant has intervened or opted in under the rules. See Topic 3.


The form should be designed in such a way that proof of the applicant's relationship to the injured or decedent victim, the status as a victim and all proof of damages can be accomplished by filing of certified copies of public documents (e.g., birth certificates), affidavits (e.g., proof of presence in or near the World Trade Center or Pentagon at the time of or in the immediate aftermath of the crashes, decedent's earning power, etc.) and written statements (e.g., air carrier passenger manifests, medical records, decedent's relationship with applicant(s); applicant(s)' traumatic experiences, etc.).


The filing process should envision a one time filing, such as the ICANN dispute resolution process used to decide domain name disputes. If the Hearing Officer determines that more information is required, however, he/she can request such information. If such a request is deemed necessary, the time for a final decision should be extended for at least thirty (30) days, or however long it takes the applicant to submit the requested information. The Hearing Officer should be able to halt or toll the running of the decision clock in such circumstances, or if the applicant fails to respond to any inquiries.


The form should make clear that the statements made on the application and in affidavits are made under the pains and penalties of perjury, that the Special Master and Hearing Officers have authority and have been directed to report suspected fraud to the Attorney General, and that any knowingly false statement made on the application or any affidavit will result in prosecution. See Topic 6.


The form should provide the applicant an option to present oral evidence at a hearing and should inform the applicant that, if that option is chosen, a hearing will be provided within that state, territory or the District of Columbia in which the legal representative resides. See Topic 3.


Forms should be submittable both on-line (to be supplemented by documentary evidence) and in paper form.


Topic 3: Procedures for Hearing and the Presentation of Evidence


In the case of a decedent, the claim should be deemed to have been filed only when the Hearing Officer has determined that an appropriate representative of the decedent has been determined and the last of the survivor applicants has intervened or opted in, under the rules. A claimant should be considered an appropriate legal representative of a decedent if appointed as such by a court of competent jurisdiction. In the absence of such a judicial appointment, the Hearing Officer should have authority to designate the representative of the decedent and, where the Hearing Officer deems it appropriate, to require the filing of a bond. See Topic 4.


A hearing, if requested, should be provided within that state, territory or the District of Columbia in which the legal representative resides. Formal rules of evidence should not apply. There should be a record of the proceedings. There should be one Hearing Officer designated to each file (such as a magistrate judge in federal court proceedings). Once a Hearing Officer begins reviewing a file, the Hearing Officer should make all decisions relating to the file, with the exception of any reviews as discussed below, absent special circumstances.


Any person who seeks status as an eligible individual should be entitled to a review of his/her status as an eligible individual and/or the amount of the award. The review should be conducted by a Review Panel chosen by the Special Master and should be based on the record of the proceedings before the Hearing Officer. Among the issues to be considered by the Review Panel should be adherence by the Hearing Officers to the expansive and uniform application of law (see Topics 5 and 6) and the resolution of issues unique to individual claims. There should be no further right of review.


Topic 4: Procedures to Assist an Individual in Filing and Pursuing Claims Under This Title


There should be at least one Hearing Officer in every state, territory and the District of Columbia in which an applicant under the Act resides, and each Hearing Officer should have an Applicants' Assistant whose responsibility it is to assist applicants and liaison with the American Trial Lawyers Association.


There should be public outreach meetings, an informative web site, and an 800 phone number that the public can call with questions to assist families in determining whether they will apply to the Act, and if so, what information and evidence they need to submit.


The regulations should provide for payment by the Justice Department of the reasonable fees of those attorneys who do not agree to perform their services pro bono and who assist applicants in the processing of their claims. The amount of those fees should not exceed 10% of the award to the applicant. Provision for payment of reasonable attorney fees is required to assure that all claimants get competent representation by counsel of their choosing, notwithstanding the offer of pro bono services by the American Trial Lawyers Association.


The government should encourage all potential experts and other service providers to provide their services pro bono, or at a minimum, at a reduced rate.


Public notices should be disseminated making it clear that applicants for compensation under the Act have a right to intervene in or opt into a claim filed by a representative of a decedent and written notice, by certified mail return receipt requested, should be given to all persons who are presumptive relatives of a survivor or decedent. See Topic 5.


Topic 5: Claimant Eligibility


The stated purpose of The September 11th Victim Compensation Fund of 2001 ("the Act") is to "provide compensation to any individual (or relatives of a surviving or deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001. The population of "relatives of deceased individuals" is not clearly defined in the Act and a tension is created between the express purpose of the Act to compensate those "relatives" and other provisions of the Act. Although there is no express provision in the Act for relatives of physically injured individuals, those relatives should be compensated under the Act and the regulations should so provide.


The Act provides, "Not more than one claim may be submitted ... on behalf of a deceased individual," and "in the case a decedent ... [the claimant is] the personal representative of the decedent who files a claim on behalf of the decedent." The term "personal representative of the decedent" is not defined in the Act. As a matter of substantive law, the personal representative of a decedent need not be a relative of the decedent.


The regulations promulgated to carry out the Act should make clear that all relatives who are spouses, parents, children, or siblings of a decedent or injured victim (whether or not survived by a spouse) are presumptively eligible individuals and that other relatives also may be eligible. Other relatives may include co-habitating partners, survivors of engaged couples, step-relatives, etc. The regulations should broadly define the term "relatives" to include both presumptive and de facto relatives.


The amount of the compensation awarded to any "relatives" may be highly variable based upon the relationship in fact between the decedent/injured victim and the relative, but the right of the presumptive relatives to participate in the claims process should be assured. In addition, the regulations should make clear that there is no compensation limit per decedent/injured victim: i.e., the aggregate amount of an award to multiple relatives of such a decedent/injured victim will not be capped in any way.


This can be accomplished by requiring that the legal representative of the decedent or the injured victim identify, in affidavit form, all presumptive relatives and that effective notice be given to all such relatives giving them the opportunity (within a reasonable time - 60 days) to opt into the claim process. If they do not opt in, they will be excluded from compensation under the Act. Other relatives (e.g., grandparents, co-habitating partners, etc.), who might be eligible, also should have 60 days to intervene. If they do not opt in, they will be excluded from compensation under the Act.


The regulations should make clear, however, that in no event shall a claim on behalf of a decedent be deemed to have been filed earlier than the first to occur of (a) the filing of a claim by an applicant who is the representative of the decedent appointed as such by a court of competent jurisdiction or (b) March 1, 2003. This will prevent a "remote" relative from pre-empting the rights of the duly appointed representative of the estate of the decedent to choose whether and, if so, when to file a claim under the Act, while at the same time preserving the right of such "remote" relative(s) to seek compensation under the Act.


Should the regulations not reflect the "presumptive relatives" approach and its corollaries set forth above, they should at a minimum capture in the population of eligible claimants the most expansive population permitted by an assessment of the law on such issues as it has been developed in all the state and federal courts applying state law, without deference to the law of any such jurisdiction. See Topic 6.


Topic 6: Nature and Amount of Compensation


We believe that experienced Hearing Officers who receive careful guidance from the Special Master can and should decide each case on its own merits. We recognize that using this approach will require the employment of many experienced Hearing Officers and require that they all receive careful training from the Special Master.


Any attempt to provide formulaic outcomes will inevitably be arbitrary. It cannot be forgotten that the families of the victims are all now suffering from the most horrific act of arbitrary violence this country has ever experienced. They need not only compensation that reflects the realities of their lives and their losses, but also the well justified belief that the compensation they receive has been fairly determined. Furthermore, if the Act is to fulfill its purpose of providing an effective alternative to litigation, it must promise and give results that fit the circumstances of each case.


Each applicant should be permitted to submit expert testimony on any and all issues (economic and non-economic) upon which the courts have allowed such testimony, including past and projected future economic loss (income streams and expenses), hedonic damages, etc. The probative value of this type and all other evidence should be determined by an assessment of the law on such issues as it has been developed in all the state and federal courts applying state law, without deference to the law of any such jurisdiction. The substantive rules employed to determine that sum of money that will fairly compensate each eligible applicant should be determined by an assessment of the law that provides the most expansive remedies on such issues, as it has been developed in all the state and federal courts applying state law, without deference to the law of any such jurisdiction. For instance, recovery for grief and its consequences should be permitted here. The specific rules to be applied should not be set forth in detail in these regulations (with the possible exception noted in the second next paragraph), but should be adopted by the Special Master pursuant to the above mandate and communicated to the Hearing Officers during their training. The Hearing Officers will then be in a position to listen to arguments for accepting evidence and applying damages rules on unusual issues and, if necessary referring them on a case-by-case basis to the Special Master or his/her designee for resolution (similar to an interlocutory appeal). Using this approach will provide potential applicants with a common body of well-developed law with which to make decisions whether to pursue a claim under the Act or pursue their claims in court, will provide uniformity of decision-making across jurisdictions, and will help assure fair compensation after applying the collateral source rule mandated by the Act.


This approach is entirely consistent (indeed any more restrictive rule would be inconsistent) with Sections 402 (5) (ECONOMIC LOSS) and (7) (NONECONOMIC LOSSES) of the act, which provide that:


The term "economic loss" means any pecuniary loss resulting from harm (including the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial costs, and loss of business or employment opportunities) to the extent recovery for such loss is allowed under applicable state law.


The term "noneconomic losses" means 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 (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature.


It is essential that "noneconomic loss" awards be consistent for all, particularly among survivors of deceased victims. There should be no linkage between the amount of an "economic loss" award and the amount of the "noneconomic loss" award for such applicants for compensation under the Act. There simply is no rational basis for assuming such a correlation and every reason to think that the economically disadvantaged suffer the same emotional pain, etc. as the economically more fortunate. Indeed, the hearing process would be very much streamlined and the risk of anomalous outcomes substantially reduced, if the regulations provide for a minimum award to each presumptive relative of each deceased victim for the emotional consequences of the emptiness left in and trauma to his/her life in a fixed amount (e.g., $2,000,000) to be supplemented based upon unique circumstances presented in the claim or at the hearing. Such an approach would have as its premise the reality that even the emotionally most resilient among them (no matter what their ages or other circumstances) have suffered and will continue to suffer from the loss of their loved ones and the haunting images of the terror faced by those loved ones just before and as their lives were extinguished by explosion and fire, crush of steel and mortar, impacts with earth from leaps to death, etc. For even these most resilient ones (some would say, most emotionally repressed) whose tears flow inward unseen, suffer with the others.


Finally, the regulations should require the Special Master and the Hearing Officers to make no distinction among awards customarily given in different locations where a hearing might be held, the injury or death occurred, or a victim or survivors may have lived or are living: rather, they should require that awards be consistent with those made in those locations, nationwide, where the most generous awards are the custom. This is consistent with the broad scope of damages contemplated by the Act and the unprecedented enormity of and national scope of the September 11th attacks, and is essential to meet the criterion of fairness across geographic regions implicit in the Act.


Since so much of the language of the Act that reads, "The term 'collateral source' means all collateral sources" begs the question of what is a collateral source, the regulations should include as collateral sources only those which are and are of the same kind as those enumerated as examples: i.e., life insurance, pension funds, death benefit programs, and payments by federal, state, or local governments. It is clear to us that charitable contributions are not of like kind to these, nor are "in kind" and/or material contributions of this type.


Furthermore, the regulations should state expressly that the term "collateral source" will be narrowly construed to mean only those sums received by the eligible applicant net of all taxes that exceed the premiums, payments or other contributions made by that applicant and the interest, dividends and capital and other gains attributed to said premiums, payments or contributions, and the scope of the terms "pension funds" and "death benefit programs" should be more clearly defined consistent with this narrow construction. Application of any other rule will place form over substance: The survivor of a victim who invested wisely in the stock market would avoid a collateral source deduction, while the survivor of a victim who invested in whole life insurance, a 401(k) plan or the like would have an award reduced by the investment. If the rule suggested here is adopted, the apparent intent of Congress that applicants for relief under the Act not receive a windfall will be accomplished. For example, the young executive who had paid premiums of $10,000 for a term life insurance policy with a $250,000 death benefit would have his award reduced by $240,000, but the victim who had paid into a retirement plan all contributions to it (no employer participation) would have no set off against recovery. The burden of proving the limited application of the collateral source rule should be on the applicant.


We hope that the Special Master will be an active jurist with many years and broad experience handling civil claims, particularly wrongful death claims. Hearing Officers should be jurists (active or retired) and mediators or arbitrators with many (at least 10) years experience handling civil claims, including wrongful death claims. Experts in potentially relevant fields, including wrongful death, employment law, business valuation and other fields, should be used in training Hearing Officers. Although the commitment of the Justice Department to providing and training qualified Hearing Officers will be substantial, it will not exceed the burden that will otherwise be placed on the courts, if the regulations do not afford victims and their families an effective forum for relief and an adequate remedy.


Requiring that all applications and affidavits be signed under the pains and penalties of perjury with the threat of criminal prosecution and the experience and judgment of well qualified Hearing Officers should suffice to determine whether potential future collateral source payments are ones that an individual is "entitled to receive."


Similarly, fraud can best be avoided by requiring affidavits wherever feasible and empowering and requiring the Special Master and Hearing Officers to report suspicion of fraud to the Attorney General for prosecution.


CONCLUSION


The population of eligible applicants should be sufficiently large to capture all those who have suffered the consequences of the terrorist-related aircraft crashes of September 11th. All spouses, all parents, all children and all siblings of victims (whether survived by a spouse), have been affected by the trauma of the September 11th crashes and must be presumed to be eligible for compensation under the Act. Other "legal" relatives of the victims may well also have suffered. Finally, narrow legal definitions of relationships cannot accomplish the salutary goals of the Act, and experienced Hearing Officers can make well reasoned decisions whether to include (or exclude) "de facto" relatives or those with remote degrees of kinship and, if included, the nature and extent of their losses.


The rules of evidence and substantive law must be designed to provide uniformity of application and to fairly determine the fair value of claims before any collateral sources are deducted. This can be accomplished by relying upon the enormous body of decisional authority of the state and federal appellate courts. Since the Act itself makes clear that an extremely broad array of both economic and non-economic damages are to be awarded, the most expansive rules of evidence and substantive law recognized by the existing decisional authority should be used for determining both eligibility and damages. Since grief is a part of the suffering of and is impairing the vitality of the vast majority of those who will apply for benefits under the Act, compensation for it should be permitted.


Consistency of outcomes in like circumstances is essential to fairness and its perception. Application of the most expansive and generous interpretations by the state and federal courts, applying state law, and requiring that awards reflect the most generous outcomes for all, notwithstanding the location of the hearing, the applicant or the injury or death of the victim, is also required to assure fairness: This country has never experienced a disaster of this magnitude and it deserves treatment commensurate with the scope of its devastation.


The term "collateral sources" should be narrowly construed to avoid formalist and anomalous results and to effect the purpose of the Act: i.e., to fairly compensate the victims of the September 11th terrorist-related crashes and avoid windfalls to those whose contributions to the "collateral source" are disproportionate to the benefit they received. Since charitable and "in kind" distributions to applicants are simply not of like kind to the "collateral sources" enumerated in the Act, they should not result in a reduction in awards.


Finally, it is the intent of these recommendations that the regulations make the process simple, convenient, fair and fast. It is clear that Congress sought this result. The "opt in" and "intervention" recommendations made here should assure that the entire population of intended participants in the Act's recovery process are included promptly after a claim is first filed. The use of experienced decision makers and existing appellate decisional law will provide predictability and uniformity of results. The availability of a hearing convenient to the applicants will provide the opportunity that they need to present their cases and, perhaps just as important, give them the belief that they are being treated as individuals and the merits of their cases are being assessed fairly.


This response to inquiry and advance notice of rulemaking is submitted by e-mail to victimcomp.comments@usdoj.gov on behalf of the family of , by and .




Individual Comment

2001-11-25