Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Friday, January 11, 2002 10:55 AM Interim Final Rule of the September 11 Victim Compensation Fund of 2001 This letter is submitted to furnish comments and recommendations regarding the Special Master's 98 Percentile Rule incorporated as part of the Interim Final Rule. Amidst all the uproar regarding the compensation rules contained in the Interim Final Rule, the central question seems to have been overlooked. Simply, it is this: Is the Special Master administering the Act, as he is charged to do in Section 404, Administration, or is he rewriting the Act, which only Congress can do. Let's examine the evidence to answer that. Determination of Economic Loss The Special Master has decided that the determination of economic loss from earnings shall be based on earnings up to but not more than the 98 percentile of US income, equal to $231,000 maximum. He concludes in the Interim Final Rule that payments based on income higher than $231,000 would be "excessive" relative to survivor's needs, but he indicates that "extraordinary circumstances", not defined, might increase the actual payment. The statute never uses the word "excessive" nor any synonym for it regarding the amount of compensation, nor does it specify nor suggest an upper limit to the victim's compensation. However, the statute does define "economic loss" as any pecuniary loss, including the loss of earnings, due to death. It does not place a cap on the loss, as the Special Master, has done. In fact, the statute requires the Special Master to determine the extent of the harm to the claimant, including "any economic and non economic losses". Obviously, the term "any economic losses" does not mean "some" of the losses, or "losses up to $231,000", but "all" of the losses. Amount of Compensation The statute also requires the Special Master to determine the amount of compensation to which the claimant is entitled, based on the harm to the claimant, the facts of the claim and the individual circumstances of the claimant. The Special Master has zeroed in on the term "individual circumstances" as a way to cap the victim's compensation and throughout the Interim Final Rule has offered various reasons for reducing the amount of compensation for high income victims to less than their actual economic loss. The first sentence in the previous paragraph is included in Section 405(b)(1)(B)(ii). That section describes the amount of compensation to which a claimant is entitled. The inclusion of the term "individual circumstances" in that section would more logically be interpreted to justify an increase in the computed compensation, not a reduction. The only place in the statute where reductions in compensation are covered is in Section 405(b)(6), but there is no provision there or elsewhere in the statute suggesting or requiring that the earnings used in determining the amount of compensation be limited. If Congress wanted such a limit, it would have so specified, as it did by specifying the types of collateral compensation which it wanted to be deducted. As previously shown, the Congress required that all economic losses be used. It seems that the Special Master decided at the outset to cap such compensation and then searched through the statute to find a phrase to justify it. In fact, in the section entitled "Statement by the Special Master", he states that "The statute specifies that individual circumstances beyond economic and non economic harm should be taken into account". The words "beyond economic and non economic harm" do not appear anywhere in the statute, contrary to his assertion. This unrelenting assault on the earnings of high paid workers results in regulations which exceed both the spirit and the letter of the Act. The Special Master's primary justification for rewriting the statute is based on his interpretation of Section 407 of the Act which requires the Attorney General ".... to promulgate regulations to carry out this title...." on four procedural matters as well as "other matters determined appropriate by the Attorney General." The "other matters" phrase does not authorize the Special Master or Attorney General to expand or restrict the terms of the statute, as the Special Master has done, but merely "....to carry out this title". Webster's dictionary defines "carry out" as follows: to put (plans, instructions, etc.) into practice; to get done, bring to completion, accomplish ---- not to revise, expand, restrict or change. The Special Master has repeatedly said in public that he has not capped the amount of compensation that will be paid, but his 98 Percentile Rule does, in effect, cap the payment. His 98 Percentile Rule is arbitrary and not in compliance with either the spirit or the letter of the statute. It is a rewriting of the statute. Fair Treatment In the Interim Final Rule he has also stated that an objective of the regulations is that each claimant shall "be treated fairly based on the claimant's own individual circumstances and relative to other claimants". But in many instances, probably most, his 98 Percentile Rule results in unfair treatment. The following illustration is not hypothetical nor theoretical; it is a factual representation of an actual situation and, as noted previously, also represents the situation of many victims whose income is being capped by the Special Master. The statute includes life insurance as a collateral source which must be deducted from the computed payment. Obviously, the larger amount of life insurance one had, the greater would the deduction be. But what type of person would have large amounts of life insurance? Firstly, he would be a hard worker who worked long 60 and 70 hour weeks in a stress filled job enabling him to achieve a high income, and, secondly, he would be one who was a prudent and loving spouse and parent who paid high premiums for many years in order to provide his loved ones with some financial protection after his death. He was not the high living, free wheeling, big spending guy who spends everything on the good times today and lets tomorrow take care of itself. Congress, in its wisdom, chose to repudiate the concept of hard work, prudence and self reliance by reducing the victim's compensation by the amount of life insurance he paid for. This amounted to more than one million dollars for high income individuals in many instances, including the one in this illustration, substantially reducing their compensation under the statute. Then, the Special Master decided to slam these victims a second time by capping the amount of income they can use in computing economic loss, resulting in a lower amount of compensation from which they must deduct a high insurance payment which they wouldn't have been able to afford in the first place if they were in the 98 percentile. The message seems to be don't work hard, don't save, don't be prudent because the government will penalize you if you do. Obviously, by introducing a second penalty to high wage workers, but to no one else, on top of the one imposed by Congress, the 98 Percentile Rule voids the objective of fairness. Litigation In conclusion, the Special Master states that the Fund offers the claimant an alternative to litigation. Unfortunately, his unilateral imposition of a salary cap, on top of the reductions mandated in the statute, will force most high income workers into litigation if it isn't rescinded. Individual Comment Babylon, NY September 11 Email: Date The local time and date when the message was written. 2002-01-11 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojN001520.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2002-01-11