dojW000760.xml

dojW000760.xml

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2001-11-26

Congress of the United States
House of Representatives
Washington, D.C. 20515

November 26, 2001


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:

I am writing in response to the U.S. Department of Justice's invitation for interested parties to submit comments regarding implementation of the September 11th Victim Compensation Fund of 2001 (AG Order 2531-2001).

I greatly appreciate the Justice Department's willingness to consider input from the public on this matter of critical importance to those who lost loved ones in the terrorist attacks of September 11th. 28 individuals hailing from or with close connections to Massachusett's Fifth Congressional District - which I am privileged to represent - died in those attacks. A strong spirit of compassion for the families of those individuals and other victims of the September 11th attacks must guide implementation of the Fund. Indeed, the ultimate measure of the Fund's success will be the extent to which those who lost loved ones on the September 11th consider it to be fair and respectful to the memories of those who died on that terrible day.

While there are many important matters raised in the notice of inquiry and advance notice of
rulemaking (Federal Register, November 5, 2001), this letter touches solely on the issue of
whether charitable contributions by non-profit organizations should be deducted from Fund
awards. With respect to other matters discussed in the notice, I am aware that House Minority Leader Richard Gephardt and House Judiciary Committee Ranking Member John Conyers
weighed in on these issues on October 25, 2001 with proposed Fund implementation regulations
for you to consider. I concur with their recommendations and urge you to give those
recommendations all appropriate consideration.

Section 405(b)(6) of Public Law 107-42 states that the Special Master appointed by the Justice Department to administer the September 11th Victim Compensation Fund shall reduce
compensation paid to Fund claimants "by the amount of 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) of P.L. 107-42 defines "collateral source" as "all collateral sources, including life insurance, pension funds, death benefit programs, and payments by Federal, State or local governments related to the terrorist-related aircraft crashes of September 11, 2001."

In its notice, the Department indicates that it "appreciates the strong policy reasons for excluding charitable contributions from the definition of "collateral sources". [emphasis added] The notice proceeded to invite comment on whether the new law "indeed permits the Department to exclude such contributions from the definition."

I am extremely pleased that the Department recognizes the "strong policy reasons" for not
deducting the amount of charitable contributions received by families of the victims of the
September 11th attacks from any award they might receive from the Fund. I wholeheartedly
agree with this position. A policy of deducting such contributions from the award could
encourage potential claimants to engage in litigation rather than applying to the Fund, impose onerous record-keeping burdens on Fund claimants that are rightly grappling with more serious issues, greatly complicate the decisions of private charities to provide expeditious support and assistance to victims' families, and - depending on the response of those charities - potentially violate the intent of donors who made contributions specifically to help respond to September 11th - related losses.

I strongly believe that P.L. 107-42 permits the Department to act consistently with its policy instincts and exclude charitable contributions by non-profit organizations from serving as collateral source offsets for Fund awards. Indeed, a cautious and common-sense interpretation of the law supports that approach.

The law does not define the term "collateral source" but instead lists the following examples: life insurance, pension funds, death benefit programs, and government payments related to the September 11th aircraft crashes. It is accordingly instructive to review the use of this term in the most analogous context - state statutes establishing crime victim compensation programs.

Under these programs, states provide compensation to crime victims and their relatives for a wide variety of expenses and losses related to criminal injury and homicide. A number of the state statutes establishing these programs use the term "collateral source" in describing entities other than the state whose payments to a crime victim may be deducted from or considered to reduce any state award to such victim. I asked the Congressional Research Service to provide me copies of state crime victim compensation statutes expressly using the term "collateral source" in this manner. Notably, in the strong majority of such state crime victim compensation statutes provided to me, the term "collateral source" does not cover charitable contributions by non-profit organizations.[1]

Furthermore, the language of P.L. 107-42 contemplates - at most - an offset of only payments
from third parties pursuant to statutory or contractual rights. Congress could have included
charitable contributions by non-profit organizations in the list of examples describing "collateral sources," yet it chose not to do so. Instead, it listed as examples of collateral sources only benefits and payments pursuant to either statutory mandates or contractual obligations. Indeed, Section 405(b)(6) of P.L. 107-42 - the actual collateral source offset requirement - reinforces this notion that statutory or contractual obligation is required for a third - party payor to constitute a "collateral source". In describing the types of payments not yet received by the claimant for which the offset would apply, it mentions "collateral source compensation the claimant...is entitled to receive as a result of the terrorist-related aircraft crashes of September 11, 2001." [emphasis added] Of course, no claimant is "entitled" to receive a charitable contribution by a non-profit organization. Congress would have used the term "likely to receive" as opposed to "entitled to receive" had it desired to cover charitable contributions pursuant to recently or previously established donation policies of non-profit organizations.

Accordingly, public policy and proper statutory interpretation support the conclusion that
charitable contributions by non-profit organizations should be excluded from the definition of collateral sources and not considered to offset any Fund award. I expect that most crime victims' advocacy groups will reach this conclusion and earnestly hope that the Department will do likewise. Please feel free to contact me or or my staff with any questions or comments. Thank you in advance for your consideration.

Sincerely,

Individual Comment by
Martin T. Meehan
Fifth District, Massachusetts












__________________________________________
[1] As provided to me by the Congressional Research service, the following state crime victim compensation fund statutes using the term "collateral source" do not consider such term toinclude charitable contributions. Alabama (ALA. CODE Section 15-23-3 [2001]; Kansas (KAN. STAT. ANN. Section 74-7301 [2001]; South Dakota (S.D. CODIFIED LAWS ANN. Section
23A-28B-22[2001]; Utah (UTAH CODE ANN. Section 63-25a-413 [2001]; Arkansas (ARK
CODE ANN. Section 16-90-703[2001]; District of Columbia (D.C. CODE ANN. Section 3-421
[2001]; Louisiana (LA. REV STAT. ANN. Section 46:1802 [2001]; Maine (ME. REV STAT.
ANN. tit. 17, section 1322 [2000]; not that this statute appears to deal with restitution payments made directly by an offender; Mississippi (MISS. CODE ANN. Section 99-41-5[2001]; North Carolina (N.C. GEN STAT. Section 15B-2[2000]; Texas(TEX. CRIM. PROC. CODE Section
56.32[2000]; and Oklahoma (OKLA STAT. tit. 21, Section 142.3[2000]).

States crime victim compensation fund statutes using the term "collateral source" that do appear to consider such term to include charitable contributions include Minnesota (MINN STAT. Section 611A.52 [2000]; Montana (MONT. CODE ANN. Section 53-9-103 [2001]; and North
Dakota (N.D. CENT. CODE Section 54-23.4-01 [2001]; New Mexico (N.M. STAT. ANN.
Section 31-22-3); Indiana's crime victim compensation statute lists specific sources which do not likely cover charitable contributions. However, it also appears to consider there to be "other collateral sources". IND. CODE Section 5-2-6.1-32(2001). Wyoming's crime victim
compensation statute does not further define the term "collateral source". WYO STAT. Section 1-40-110.

2001-11-26