dojW000788.xml

dojW000788.xml

born-digital

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2001-11-26

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


RE: RESPONSE TO REQUEST TO COMMENT, SEPTEMBER 11 VICTIM
COMPENSATION FUND OF 2001


Dear Mr. Zwick:

As Attorney General of the State of Connecticut, I am writing to provide comments on
issues relating to the implementation of the Victim Compensation Fund of 2001 ("the Fund"),
established pursuant to the Public Law 107-42 to victims and families of the
September 11 terrorist attacks. I am grateful to United States Attorney General Ashcroft for
soliciting comments on issues essential to the Fund's administration.

As a basic premise, I urge the Attorney General to be guided by Congress' overriding
intent that the vicyims of the September 11 attacks obtain compensation for their losses as fairly,
speedily and simply as possible. In resolving any perceived ambiguity or issue, the guiding
principle should be to provide the most complete recovery with the least pain or cost to the
victims. For most affected directly by that terrible attack and its aftermath, no amount of money
can ever provide complete compensation, but each deserves the fullest, fairest reovery in light of
each individual's circumstances.

Since victims and their representatives will be required to forego their right to file civil
actions if they file claims with the Fund, the procedures and awards must foster confidence and
credibility. The process must be fair and perceived to be so.

In this vein, I offer the following specific comments:

Page



Kenneth L. Zwick
November 26,2001


With regard to the nature and amount of compensation, I believe that awards should be
individualized and tailored to the facts of each case, not made mechanically according to an
inflexible schedule or grid. Consistent standards are necessary, but a balance must be struck that
provides significant, fair compensation for each victim, and still advances Congress' goal that
claims and compensation be decided expeditiously. Even as consistent standards for measuring
the nature and amount of compensation must be developed for the sake of credibility and fairness,
consideration must be given to each individual claimant's special circumstances. I do not believe
Congress intended that any standards or guidelines be rigidly applied so as to result in uniform,
non-individualized awards. Nothing in the law prevents a claimant from putting on proof of his or
her special or specific facts and situation. On the contrary, Section 405(b)(1) expressly 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." Subsecion (4) of that section gives claimants the rights to be represented by counsel
and to present evidence in support of their claimsincluding the presentations of witnesses and
documents. These sections would be nullified and rendered meaningless if rigit deternminations of
compensation were made in the interest of uniformity or speed, without regard to individual
circumstances. In the interest of fairness and other goals of the legislation, then, I urge that claims
be evaluated individually, with consistent standards applied to each claim.

In addition to the rights to have counsel and to present evidence, Section 405(b)(4)(C)
expressly provides that claimants shall have "any other due process rights determined appropriate
by the Special Master." I urge you to provide the opportunity for some form of oral hearing for
claimants who request one. After talking to some of the victims' families and analyzing
provisions that require claimants to forego litigation if they avail themselves of the Fund, I
believe strongly that the department should do everything possible to ensure that claimants have
the opportunity to be heard fully. There should be some forum or venue at which a record may be
made. Since there will be no cross-examination, motions or other litigation formalities, the
proceeding should take comparatively little time. Whatever the specifics, such procedures should
justify each claimant in feeling that the system has been fair, and that his or her own unique
circumstances have been considered.

Section 405(b)(6) required the Special Master to "reduce the amount of compensation...
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." Section 402(4)
defines "collateral source" as "all collateral sources, including life insurance, pension funds, death
benefit programs, and payments by Fedral, State, or local governments related to the terrorist-
related aircraft crashes on September 11, 2001." This definition does not mention payments that
victims or their families may receive from charitable funds. I urge you to interpret the scope
of this statutory language narrorwly in view of the fundamental purpose of charitable gifts, which is
to provide voluntary benefits separate and apart from any government obligations or entitlements,



Kenneth L. Zwick
November 26,2001


and the overriding purpose of the Act, which is to provide full and fair compensation. Such an
interpretation, clearly consistent with the spirit and letter of this measure, would exclude most if
not all charitable benefits from consideration in setting compensation from the fund.

You have also sought comments about the content of the claim forms and procedures for
incomplete claims or those lacking supporting documentation. I encourage you to develop a
claim form that is not only easy to understand and use, but one that is sufficiently detailed so as to
apprise claimants of what will be necessary to have their claims administered. In the long run, this
will avoid unnecessary delay, and will give potential claimants a perspective with which to decide
whether to file a claim with the Fund or to proceed with litigation. I also urge you to give
persons filing incomplete forms opportunity to provide the missing information within a
reasonable time frame, or to present a reasonable substitute for documentation if the required
information is impossible to obtain. For many victims, the trauma and grief of the terrorist
attacks, and the personal turmoil in their aftermath, may make completing these forms and
compiling evidence a daunting task. While certainly some documentation is necessary to support
each claim, I urge you to adopt a flexible approach in determining what evidence I can
provide in carrying out this vital task.

Very truly yours
Comments by:
Attorney General
State of Connecticut

2001-11-26