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. January 18, 2002 Mr. Kenneth L. Zwick, Director Office of Management Programs U.S. Department of Justice Civil Division Main Building, Room 3140 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Dear Mr. Zwick: The Justice Department has requested comments with respect to the Interim Final Rules (AIFR=s@) which were put in place on December 21, 2001 regarding the September 11th Victim Compensation Fund Act of 2001. (Athe Fund@). Unless otherwise noted, the comments that follow have not been adopted as the policy of the American Bar Association (ABA) or any of its entities and should be considered as observations which the Attorney General of the United States, the Department of Justice and the Special Master may wish to consider as part of their review of the IFR=s that have been drafted. There is much to be praised in the initial regulatory efforts of the Justice Department and the Special Master. It is unquestionable that significant time, effort and energy were expended in drafting these IFR=s and that volumes of information were thoroughly examined and considered by the Special Master and the Justice Department; good intentions shine through. The clear intent of Congress and the President in passing the Fund Program was to assure that the victims and families of the outrages of September 11, 2001 promptly receive full economic and non- economic compensation of their losses. The IFR=s fulfill that obligation in many respects. For example, not one penny of the more than $1.4 billion charitable contributions donated by millions of Americans will be deducted from victims= compensation. However, it appears that parts of the IFR=s, as presented, conflict with the intentions of Congress in enacting and passing the Fund program. Additionally, various aspects of the regulations are ambiguous or present other difficulties. These matters are addressed in detail below. Limitations on Damages are Inconsistent with the Congressional Mandate First and foremost, the IFR=s suggest certain caps or presumptive limits on compensation. In Section 402 of the Fund, Congress defined both the Aeconomic@ and the Anoneconomic@ losses to be compensated by the Fund. Nowhere in the Act was there any mention of caps or limitations on compensation. Instead, it appeared that in passing the Fund program, Congress intended to provide the victims of the September 11, 2001 outrages with compensation consistent with that which might have been awarded in tort proceedings. The Act was a means of allowing the victims to avoid the delays that would have resulted from litigation while at the same time, removing the uncertainty and risk attendant to litigation. In exchange for proceeding under the Act, the victims were required to give up their right to sue in court, abandon any claim for punitive damages and accept a variety of other procedural restrictions. Congress never made any mention of limitations on economic and/or noneconomic damages. Several comments made by the Special Master, in his Statement of December 20, 2001, raise concerns about the fixing and/or limitation of damages. For example, in his comments, the Special Master stated: We have concluded that the purpose of the Act is not simply to examine economic and noneconomic harm, but also to provide compensation that is just and appropriate in light of claimants= individual circumstances. We have concluded that any methodology that does nothing more than attempt to replicate a theoretically possible future income stream would lead to awards that would be insufficient relative to the needs of some victims= families, and excessive relative to the needs of others. The statute specifies that individual circumstances beyond economic and noneconomic harm should be taken into account. It is our view that, absent extraordinary circumstances, awards in excess of $3 million, tax-free, will rarely be appropriate in light of individual needs and resources. This imposition of an apparent cap on economic damages is an unauthorized exercise of power on the part of the Special Master. The Statement creates an arbitrary, pre-determined notion of what the outer limits of an award should be. Unquestionably, that was not the intent of the Congress in creating the Fund program. Rather, the Fund was intended to establish a process that entitles each claimant to a hearing where he/she can present evidence and witnesses if he/she desires to do so. The fundamental premise behind having a hearing is to allow each claim be analyzed on an individual, case-by-case basis. Only through individual review can Ajust@ and Aappropriate@ compensation be accomplished. As the ABA previously stated, a pre-determined grid or matrix of awards will defeat the function and purpose of the Act. Similarly, arbitrary limitations on economic damages will have the same effect and will erode the confidence of the public in the Fund program=s ability to provide full and fair compensation and due process protection. Additionally, while reference is made in the IFR=s to the possibility of exceeding the presumed limitation of $3 million, when Aextraordinary circumstances@ are presented, the term Aextraordinary circumstances@ is not defined. Therefore, there is no predictability, and potential claimants cannot make an informed decision on whether to waive their fundamental right to file a lawsuit and proceed under the Fund program. On the issue of noneconomic damages, the IFR=s are even more restrictive than the Special Master=s remarks regarding economic damages. More specifically, with respect to noneconomic damages, the Special Master states: . . . the Special Master and the Department have concluded that the most rational and just way to approach the imponderable task of placing a dollar amount upon the pain, emotional suffering, loss of enjoyment of life, and mental anguish suffered by the thousands of victims of the September 11 attacks is to assess the noneconomic losses for categories of claimants. The most obvious distinction is between those who died and those who suffered physical injury but survived. The regulations therefore set a presumed award for noneconomic losses sustained. For those victims who died as a result of the September 11 aircraft crashes, the presumed noneconomic losses will be $250,000, plus an additional $50,000 for the spouse and each dependent of the deceased victim. These pre-determined limitations on both economic and noneconomic damages cast doubt on the individualized decision-making goals of the Fund program and abandon any effort to adhere to the individualized, claim-by-claim system envisioned and intended by Congress. It appears that the Special Master has substituted his views about what is a Ajust@ award, and Aappropriate@ compensation before any evidence has been put before him from a single Claimant. Moreover, this presumptive award does not take into account variables such as the ages of the spouse and/or dependent(s) of an individual who died in the September 11, 2001 events. Further doubt is cast on whether the individualized decision making goals of the Fund program will be met under the IFR=s because of the following comment: Claimants should not expect awards grossly in excess of the highest awards listed on the Special Master=s presumed award chart, as the individual circumstances of the wealthiest and highest-income claimants will often indicate that multi-million dollar awards out of the public coffers are not necessary to provide them with a strong economic foundation from which to rebuild their lives. Moreover, the employment of the range of limitations set out in the IFR=s defeats the Special Master=s own first objective which is to create a process that is Aefficient, straight forward and understandable to the claimants.@ There can be no understanding where there are no standards (unless the presumptive limits are not presumptive and binding). There can be nothing straight forward if presumptions are on-again, off-again tools. Additionally, the caps on damages and presumed awards do not conform with the intent of Congress. Instead of allowing a real evidentiary hearing at which evidence can be aired, without prejudgment, and damages can be fixed by hearing officers well versed in such matters, as was suggested in the ABA=s earlier comments, the IFR=s are filled with presumptions and caps on damages which were never envisioned by Congress in enacting the Fund program. This cuts across the grain of fair and just compensation. Although the ABA appreciates the fact that the IFR=s do not impose an absolute cap, but instead a presumptive cap on pain and suffering awards, we are disappointed that there is a presumptive cap. By use of this presumptive cap and by subtracting collateral sources from the awards, seriously injured persons who are in most need of pain and suffering awards will receive less than full compensation for the harm caused to them while less seriously injured persons may receive full compensation for their injuries. We believe that the nation recognizes that the injuries caused by pain and suffering as a result of the September 11 tragedy should be fully compensated and especially so for those most seriously impacted. In addition to the above comments with respect to economic and noneconomic damages, the IFR=s present a number of other issues which warrant further review and consideration. Rescue Workers Receive no Benefits Under the Current IFR=s The IFR=s suggest that Arescue workers@ (an undefined term) should receive special benefits. Almost everyone would applaud providing special and generous benefits to the heroic rescue workers at the World Trade Center and Pentagon; however, a careful review of the IFR=s, as they exist, leaves the rescue workers with nothing but an empty promise. Due to existing compensation programs and the Special Master=s interpretation of the collateral source deduction requirement, virtually no uniformed safety or rescue workers will qualify for any benefits, whether the window of qualifications under the IFR=s is held open for 96 hours or 20 years. By making collateral source deductions apply against all losses, both economic and noneconomic, the Special Master has excluded virtually all rescue workers (at least those in government employ) from benefits because their collateral payments will generally exceed any award the Special Master might otherwise make. Only if, as the ABA has urged, noneconomic damages are excluded from collateral source deduction will the heroic uniformed rescue workers have any reasonable prospect of recovering significant amounts from the Fund. It is a grave error that such individuals have, in reality, been excluded from the Fund. They will certainly recover their economic losses without the intervention of the Fund. If policemen, firemen, EMS workers, etc. are to be compensated for noneconomic loss, the present approach to the collateral source deductions must be changed. Noneconomic Loss of Those Physically Injured The Special Master has suggested in his AStatement@ that it [Amay be] appropriate to give some percentage of the noneconomic loss award given for victims who died@ to those who were physically injured. Those who have suffered truly serious injury and survived will have far more long-lasting pain and suffering, disfigurement, etc. than those who died. To suggest that these living victims should receive smaller awards does not seem logical whether you look at it from a common sense perspective, on the basis of well-established tort principles, or in light of the apparent intentions of Congress (as set forth in its expansive definition of noneconomic loss). This issue must be further reviewed in order to assure that fair and reasonable compensation is provided to living victims consistent with the evidence unique to each claimant. Collateral Sources Deductions from Pain and Suffering Awards The ABA is pleased that the Special Master chose not to deduct charitable sources as a collateral source, for all of the reasons we set forth in our earlier comments. The ABA also believes, however, that it is equally inappropriate to deduct from pain and suffering awards collateral sources from such things as life insurance, etc. Pain and suffering awards are entirely different than awards for economic losses. They are meant to be a salve for those who suffer and are scarred physically or emotionally. They are not meant to substitute for economic losses. It is therefore inconsistent with the purpose of providing pain and suffering awards to deduct collateral sources from these awards. If we could find another way to try to make up for the pain and suffering that occurred, we would, but know of no other way to begin to try and make up for it except through the use of money to compensate for these losses. The pain and suffering award tells the victim that we understand something of what he or she went through and want to make up for it as best we can. If we deduct collateral sources from the awards, we are undercutting that purpose and adding salt to the wounds. Waiver of Claims to Receive Immediate Advance Appears Coercive Requiring waiver of claims in order to receive the immediate advance payment of $25,000 or $50,000 is unduly harsh on the most needy and vulnerable victims of September 11. At a minimum, claimants in need of such immediate relief should have the opportunity to complete an Aundertaking@ to repay the funds and rescind their waiver within the period in which the Victim Compensation Fund is active. We recognize that some poor claimants may not be able to make this repayment, but believe that is a small cost to absorb in order to relieve the potentially coercive nature of this provision of the IFR=s. The rationale for this is discussed in detail below. In his Statement introducing the Interim Final Rule, the Special Master recognizes the importance of claimants being empowered Ato enter the program B or choose not to enter the program B with an understanding of how their claims will be treated. This is especially important because the Act provides that, upon submission of a claim, a claimant waives the right to file a civil action for damages sustained as a result of the September 11 attacks.@ The structure of the IFR=s waiver provision is problematic. The IFR=s, as currently drafted, create the possibility of claimants waiving their legal right to file a civil action without receiving any benefit. At the very least, the IFR=s should establish that claimants who are found ineligible by the Special Master have not waived any of their legal rights to file a civil action for damages sustained as a result of the September 11 attacks. It must be clarified what the impact of the IFR=s offer of an immediate advance payment of $50,000 in cases involving death, or $25,000 in certain cases involving serious physical injury will be. While it is appreciated that this provision is intended to help those most desperately in need of financial assistance, there is concern about the potentially coercive consequences of such a provision. In order to receive this immediate financial assistance, claimants have to permanently waive their right to file a lawsuit for damages sustained as a result of the September 11 outrages. While claimants who are financially secure may have the luxury of declining this offer of assistance, in exchange for having more time to weigh their options, financially desperate individuals may feel that they have no choice but to apply for this advance payment, regardless of whether or not that decision will best serve their long-term interests. As a result, this provision appears coercive to the most vulnerable segment of the population, the very segment it was designed to assist. Hearing Officers Cannot Become Adversaries of Claimants at Hearings The fraud detection and interrogation functions should be distinct and separate from the work of Hearing Officers. The present IFR=s are exceedingly vague on this point and appear to suggest that the Special Master may use any and all of his designees, including Hearing Officers, to cross-examine claimants and to probe for fraud. Abuse must be eliminated, but this must not be part of the Hearing Officer=s job. Instead, any such probing should be part of the assignment and duties of other specifically designated officials. Any other approach will inevitably leave a bitter taste in the mouths of the Claimants and will undermine the legitimacy of the function of Hearing Officers and the process, itself. This would erode public confidence and trust in the program=s ability to offer full and fair compensation and due process protection. Inevitably, the Fund program will be scrutinized by numerous bodies, including various governmental agencies, public interest groups and the media. One can only imagine the backlash that will result if the Hearing Officers are perceived as the adversaries of the Claimants at the hearing stage. In order to maintain the integrity of the system, fraud detection and interrogation functions must be distinct and separate from the work of Hearing Officers. Adversarial friction is likely to be fostered because of the previously discussed limitations on economic and/or noneconomic damages. Having an arbitrary limitation on economic and/or noneconomic damages will result in the perception that the Hearing Officer is an adversary to the claimant as opposed to an unbiased, neutral decision-maker, who is working to award fair and reasonable compensation based on the evidence presented. This perception will obviate the trust and faith in the integrity of the system. Attorney=s Fees The ABA continues to support the proposition that all Claimants should be instructed to seek legal counsel if they so desire and should be referred to pro bono services that may be available. In the event that a claimant chooses to retain counsel instead of utilizing the available pro bono services, it is incumbent on the Special Master to make sure that fee arrangements are written in plain language that clearly identifies the basis on which a fee is to be calculated so that the victims and their families have an understanding of what the fee arrangements are. Schedules or Statistical Methodologies The ABA maintains, as urged in the ABA Task Force on Terrorism=s previous submission, that schedules and statistical methodologies should not be developed and used. The intent of Congress in establishing the Fund program was to create a process that entitles each claimant to a hearing at which he/she can present evidence and witnesses if he/she desires to do so. This requires that each claim be analyzed on and individual case-by-case basis. The pre-determined schedules and charts that have been created defeat the purpose and function of the Act; moreover, having schedules and charts in place is likely to erode public confidence in the program=s ability to offer full and fair compensation and due process protection for the same reasons discussed above relating to the limitations and caps on damages. The proposed pre-determined charts do not promote the goal of fairness and individualized claims receiving reasonable awards consistent with the evidence that is unique to each claimant. Instead, they give the perception that the Fund program is a take it or leave it proposition. This was certainly not the intent of the Congress in passing this legislation. As previously stated, there is no doubt that the Justice Department and the Special Master put forth extensive effort in creating these IFR=S. However, the IFR=s must be consistent with the Congressional mandate, and the letter and spirit of the law must be honored. Respectfully submitted, Comment By: The American Bar Association September 11 Email: Date The local time and date when the message was written. 2002-01-18 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 dojN002471.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. 2002-01-18