dojW000755.xml

dojW000755.xml

born-digital

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2001-11-26

FAX TRANSMITTAL SHEET

DATE: November 26, 2001

To: Kenneth L. Wick Fax: 1-301-519-5956

Re: September 11th Victim Compensation Fund
Comment Letter





Attached please find my comment letter on the above. Thank you.




Total number of pages (including this cover sheet): 4


This fax is from (his phone/fax numbers are listed above). However, if you did not receive all of the pages of this fax, please call as soon as possible. Thank you.




November 26, 2001

VIA FAX: 301-519-5956

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

Re: Notice of Inquiry and Advance Notice
of Rulemaking ("Notice")

Dear Mr. Zwick:

I appreciate the opportunity to comment on the Notice as it relates to the September 11th Victim Compensation Fund of 2001 ("Fund"). Although my brother was a victim at the World Trade Center, I feel that I am able to review the Notice in an objective manner and provide constructive comments that will hopefully assist the Attorney General and the Special Master in promulgating the regulations required hereunder.

General
As an initial overriding comment, I feel that it is crucial that the process to be formulated that will govern the manner in which the Fund is to be distributed must not create an adversarial atmosphere between the families involved and the United States Government ("Government"). In reading through the Supplementary Information, I sensed that this has the potential for such a result. This cannot occur! At this point in our country's history, the Government must be a friend to these families. Any potential confrontation must be avoided. Although this process, by definition, will create pain for the affected families, this pain must be kept to a minimum.

It was stated in the Notice that the Department of Justice may meet with individuals and groups who wish to provide input on these rules. The Department must note that the large group of civilian victims may not have a central voice or main contact point to represent them as compared to other groups of victims that are represented by strong unions. This group of civilian victims must not be forgotten during this process.

Effective Date
Whether or not the 30-day effective day delay is waived is not very important. The sooner funds can be distributed the better. The more important question is the appropriate period of time in which a claim may be filed irrespective of whether a claimant may have commenced civil litigation. Families must not be pressured into making hasty decisions at a time when one's thought process may not be at it sharpest. Even if the rules are promulgated as quickly as possible, there must be a sufficient amount of time to enable affected families to digest these rules and its impact. In particular, as stated above, the Department must be cognizant of the large group of civilian victims who may not have ready access to focused assistance as other groups do.

Forms
This part of the process must be kept as simple as possible. These families already have completed a sea of forms relative to the various programs that came into existence shortly after September 11. The paperwork must be kept to a minimum.

A claim should be considered filed at the time that the appropriate form is submitted even though more information may be required. The utmost flexibility must be incorporated in the Rules. A family should not be deemed to be ineligible due to a "technicality" if additional information is required. It must be remembered that some claims may be filed without professional assistance and such claimants should not be prejudiced against. A filing deadline is fair but the implementation of such a deadline must be done in a non-adversarial manner.

Procedures for hearing and the presentation of evidence

Although the statute enables a claimant to be represented by counsel, this may create an
uneven playing field. In particular, as it relates to the need to show economic loss as reduced by
collateral sources, herein lies the potential for claimants in similar situations to have different
results based upon how the case is presented. A clever attorney may have the ability to shape and
mold a claim in a certain way and put a certain spin on information that may result in a prejudice
against those who may be less artful in making a claim. I recognize that a claimant's right to
counsel should not be eliminated but the Special Master must exercise great discretion and
caution. There must be a great sensitivity to the families whose participation in the Fund should
not be based upon the clever arguments of an attorney. Again, as previously stated, this must not turn into an adversarial proceeding.

Given the need for the Fund, the statute must have intended to provide claimants with the flexibility to toll the running of the 120-day requirement for the Special Master to render a decision. However, the Special Master should not dismiss a claim as not properly filed for lack of supporting information. In this instance, to maintain the 120-day requirement may prove to be harmful to a claimant depending upon when the Special Master notifies the claimant that more information is required. It is unknown as to how much time the claimant may require to provide the additional information to the Special Master.

Nature and Amount of Compensation

In attempting to determine this very difficult figure, the greatest mistake would be to
make broad sweeping generalizations about an individual's future income based upon a particular
job or a particular industry. For example, I have heard (unknown if true) that for victims who
were in the brokerage industry, there are presumptions as to how long one's career might be in a
particular function. Although there may very well be an expected duration for certain careers, in
this case, each victim's career must be examined and analyzed individually. There are people who
may not fit the mold that is being presumed. This may result in a lesser amount to be awarded to
a family based upon a career path that does not resemble that of a particular victim. It is possible
for a person to have a lengthier career in a particular filed as compared to others. Future income calculations must take that into account and not presume a career based on the histories of others.

In addition, the inclusion of collateral sources in the formula to be used to reduce the amount of
an award is wrong. This will result in awards being based on lifestyles and decisions that were
made during the victim's lifetime. For example, should a family be, in effect, penalized for
having been wise to purchase life insurance when another did not? Should one family receive a larger portion of the Fund because it created a lifestyle with greater expenses? It would be inappropriate for the Special Master to make decisions based on the above. This would result in the Government making decisions on the value of one's life. This should not be the role of the United States Government. Perhaps such calculations work in private industry but it should not be part of this process. Distributions should be made in an equitable manner based on objective facts.

I am confident that the Attorney General and the Special Master will do their best in
administering a program that is tremendously sensitive and be able to meet the needs of the
whole.

Very truly yours,
Individual Comments
East Meadow, NY

2001-11-26