dojN002170.xml

dojN002170.xml

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2002-01-21

Monday, January 21, 2002 1:25 PM
Interim Final Rules Comments


January 21, 2002


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

Dear Special Master Zwick:

Thank you for the opportunity to voice my concerns regarding the DOJs proposed Interim Final Rules for the September 11 Victims Compensation Fund (hereinafter referred to as the Fund). worked for on the floor of Tower One (our brother and son respectively). I have read the Interim Final Rules (hereinafter referred to as the Rules) and in so doing have identified five broad areas of concerns regarding the Fund: 1) the recognition of airline liability and the decision to not use airline cases to inform the compensation amount; 2) the potential effect of the Fund on other possible litigation cases; 3) the Special Masters pivotal role in defining public perception of the Fund; 4) the factors involved in computing economic loss; and 5) the non-economic loss provision. Each of these is defined in more detail below.

Although I am appreciative of the benefits this fund offers, this legislation was passed to protect both known, namely the airlines, as well as commercial and government entities yet to be identified from legitimate lawsuits. Numerous negligent acts occurred which resulted in this tragedy. One entity is not solely responsible for the events leading to September 11th. Other potentially responsible parties include various factions of the government (e.g., the CIA, INS, FBI); the Port Authority (e.g., the lack of appropriate evacuation procedures for those on the upper floors; the general evacuation procedures; stairwell doors being locked against fire code; etc); the adequacy of fireproofing in the Towers, just to name a few. The Fund precludes families from pursuing other claims yet the Fund does not allow for these potential claims to be taken into consideration when determining the presumed award (hereinafter referred to as compensation amount; as an aside I do find the term award to be uncomfortable).

The airlines represent a highly visible negligent party responsible for the multiple tragedies occurring that day. This legislation limited the exposure of the airlines by imposing a cap on liability. The government, recognizing the airlines negligence and the resulting negative impact this would have on the airline industry, passed legislation limiting the airlines liability, among other things, as one remedy in an effort to bail out the airlines. In so doing, the government recognized the airlines liability to the families and as such effectively eliminated legal action on the part of families. The Fund was then established to compensate for the governments actions. However, the Fund goes further than the airline remedy and requires that families applying for compensation from the Fund agree to not pursue claims against the airlines, or any other entity that may be responsible for negligence, except for those found to be responsible for the terrorist acts. Mr. Feinberg has said that the intent of the Fund is to represent an alternative to litigation, and as such past airline cases are not appropriate comparisons for purposes of calculating compensation amounts. I find this logic to be misleading, as there are few alternatives, at least with respect to the airlines, for families to pursue thanks to this legislation. Consequently, the calculations put forth by Mr. Feinberg may become the only recourse for families. As such, when determining the compensation amount, consideration ought to be given to other airline litigation cases, something that Mr. Feinberg has refused to do. Quite frankly I am stunned by Mr. Feinbergs statement that cases of this nature have no relationship to the Fund because the Fund is an alternative to litigation. If this were truly an alternative to litigation then please tell me, what are our litigation alternatives? Mr. Feinberg continuously urges families to accept the compensation amount, and states that we have few choices. If this is true, then how can this be a true alternative to litigation? It cant be both that the government recognizes that the airlines are negligent, therefore the Fund will be established as a remedy for families except that previous airline damage claims have no relationship with this Fund. It cant be both ways. The government cant recognize the negligence on one hand and state that previous airline claims are irrelevant in this case. September 11th affected the entire country yet the Fund does not come close to recognizing the injustice families experienced. In its current form the Fund represents yet another injustice on top of the others we have already suffered. The airlines are the direct beneficiaries of this legislation along with other negligent parties.

Mr. Feinberg states repeatedly, both in the Rules as well as in his public appearances, that the only option to families is the Fund. Although his statement is bothersome (and it feels unduly coercive) he is unfortunately right. However, I believe that his statement is true not because families would not be able to recover should they choose to litigate, as he would have us believe, (with the notable exception of the airlines due to the governments cap on their liability); rather it is a consequence of the existence of the Fund and its accompanying table structure for economic and non-economic loss. It is my fear that if families choose not to participate in the Fund we run the risk of being successful in court with the amount awarded by the court being limited to the amount(s) listed in the computational tables. Because the Fund states a presumptive amount this may become a standard that claimants could find difficult to overcome, with the consequent result being that successful court cases may not receive awards in excess of the compensation amount provided by the Fund. Thus, the option of litigation becomes less viable and the Fund becomes even more coercive.

The Fund has received quite a bit of publicity and is fairly controversial, both with the families as well as with the general public. Families are obviously concerned with the compensation amounts and how they are being calculated. The public however has a much different perception. Many see family members as "greedy" and "unappreciative" and this seems to be due primarily to the publics lack of understanding as to why the Fund exists. The public is not sure why our taxes are being used to compensate families, and how this situation differs from the Oklahoma bombing, the South Africa Embassy bombing, and so on. In his zest to convince families that the Fund is our only option and is fair and just compensation, Mr. Feinberg inadvertently portrays families as being unappreciative of this offer and have put family members in a very uncomfortable and awkward position in criticizing the amounts proposed.

As Special Master I believe that Mr. Feinberg has a responsibility to be an advocate for the families he is serving. In this role he should be defending the Fund, informing the public about the Fund, and advocating for families both in his public speeches and in his development of a fair compensation plan. Unfortunately he has not done any of these three things. What he is doing is trying very hard to convince families that his plan is fair and that he is bound by the legislation. In this role Mr. Feinberg does not come across as compassionate and continuously discounts the families concerns regarding the compensation amounts. He also make frequent mention as to how his hands are tied, and gives the unstated message that this is as good as it gets, and we have no recourse so quit your griping already. In addition, some of his remarks are inflammatory and disrespectful. To paraphrase one such comment, I either heard or read a comment made by Mr. Feinberg that was both of these. He said something to the effect that it was not the intent of Congress that families get rich from the coffers of the American taxpayer. These types of statements add insult to injury to families that are already suffering. Having to prepare comments such as this one has taken an emotional toll on families. There are times when I hesitate to make mention that Im a family member and feel the DOJ fund does not do justice for the great loss our family suffered as the public has bought into the families as greedy stereotype. I suggest Mr. Feinberg consider taking his cue from Congressman Peter King, who has done a great job of defending Congresss intent and in laying the foundation for the rationale underlying the Fund. As a result of the multiple concerns families have with the Rules we now find ourselves organizing our efforts to overcome the obstacles put forth by the Rules instead of grieving our loss.

Although we want to begin the healing process we live in the shadow of September 11th, a day in infamy whose images will never go away for us. We relive that fateful day every single day and because the aftermath has been so incredibly overwhelming our everyday lives and routines have been redefined by it. Since September 11th we have experienced an incredible and horrendous loss along with multiple sources of frustration. Because there is no coordinated effort for families to receive information from one source we find ourselves seeking out information and organizing on multiple fronts. To date there are at least five separate web sites families have developed to provide information to other families since the city of NY has not. Each of these web sites provides different information resulting in our having to search out multiple sources for information. Some of the information we have had to seek out ourselves and repeatedly ask for pertains to our lost family members. As you are aware very few people have been positively identified. One of our primary concerns has been obtaining information about recovering and identifying remains both at Ground Zero and at the Fresh Kills landfill. None of this information has been readily available to families. The information we have received is due to the efforts of frustrated families having to organize to receive this information. Just yesterday I learned from other family members that the medical examiners office is not informing families when the DNA samples provided yield no results. Family members have to inquire about this themselves. In addition we have had to seek out information about charities, support groups, and so on. On top of all this we now find ourselves embroiled in this controversy. And it is uncomfortable. However, because of the time constraints and the principles of fairness involved, families have found themselves organizing instead of grieving. We desperately hope the day is near when justice will prevail and we can return to the privacy of our individual loss and grief.

Family members have several grave concerns regarding the Economic and Non-economic loss provision put forth in the Rules. Specifically our concerns are focused on four primary areas: 1) Congresss intent in passing this legislation and whether the Rules are consistent with this intent; 2) the economic methodology being used to determine the compensation amounts; 3) the definition of what constitutes a collateral source; and 4) having to show extraordinary circumstances to increase the presumed amount.

In offering this legislation Congress appeared to have intended that families be fairly compensated, both for their economic and non-economic loss. With respect to the non-economic amount I do not see a reasonable relationship between using the military "in the line of duty" standard and applying it to a civilian population. Those who worked in the World Trade Center were targeted for terrorism not once, but twice, and they died horrendously because most of them happened to work on the upper floors of the World Trade Center. Our family members were not in the line of duty when they went to work that day. They went to work and were viciously attacked and then prevented from leaving a flaming building due to a variety of different reasons (locked fire doors, lack of an evacuation plan for the upper floors, etc). Mr. Feinberg repeatedly states that Congress has tied his hands and that he has no power to raise the non-economic amount of $250,000. On the one hand he claims that he is developing the plan and on the other says that the non-economic amount was arrived at via negotiations between the DOJ, the White House, and the OMB. Then he states, "if that number is going to be changed, it will have to be by Republicans applying pressure to the administration" (Washington Post, January 17, 2002). Pardon me if Im a little confused at this point. So none of these three branches of government need to follow the intent of Congress or use the guidelines provided in the legislation?

As I read and listen to developments relating to this fund one question is asked repeatedly: what was the intent of Congress in making this Fund available? I hear Mr. Feinberg making statements about Congresss intent in justifying his plan, yet members of Congress state that the Rules unduly restrict Congresss intent. I realize that the law is a matter of interpretation but there seems to be opinions on different ends of the spectrum with Mr. Feinberg using a very narrow interpretation. When looking at the broad array of areas covered under the non-economic loss provision I do not see a relationship between Congresss intent and the amount proposed in the Rules.

Mr. Feinberg is professor of law and is very knowledgeable about what is, and what is not, allowed by law. As such, comments he makes are very powerful. When he speaks people are listening. Families are listening, lawmakers are listening, and the media is listening, as is the general public. Therefore it is important that he be very specific, clear, and truthful. Mr. Feinberg makes the comment that families should be grateful because under NY law there would be NO non-economic loss. However this is a half-truth. Under NY Wrongful Death law, only economic damages (pecuniary loss) are recoverable. Death cases in NY are handled under two laws, the second one being what is known as a Survival statute. If a person does not die instantly, their estate is entitled to the value of the victim's conscious pain and suffering, which is non-economic damages. How can we trust Mr. Feinberg when we have so many concerns about the way in which the Rules are being developed? Again we find ourselves in the position of having to seek out the truth. What is gained by manipulating the facts to achieve the goal of ensuring that compensation amounts are low? I truly believe that the Special Master has a responsibility to portray the Fund, and the families, in a compassionate and positive way. Neither of these has occurred.

With respect to the economic theory underlying the economic loss provision, several economists have identified a number of flaws in the methodology. To summarize, economic experts are concerned that the methodology being used is outdated, and the comparison group is inappropriate, with the subsequent result being that the proposed amounts are substantially undervalued. Others more knowledgeable about this area have provided details of these flaws to Mr. Feinberg, which I will not reiterate here. I sincerely hope that Mr. Feinberg take into consideration the opinions of experts in the field in the Final Rules. It is bothersome to me that the Rules assume early retirement yet at the same time only assumes a yearly increase of 5%. You can't have it both ways - you can't assume early retirement yet not allow for the promotions and subsequent pay increases that would allow for early retirement. I am somewhat fearful that he may be entrenched in his position and will continue to use the standards he has already put forth. His public comments lead me to believe that he stands behind the theory and rationale for both the economic and non-economic loss provisions and that families will need to show "extraordinary circumstances" in order to exceed the presumptive amount.

The clause requiring families to show extraordinary circumstances is inappropriate and is not part of the original legislation. In requiring this element Mr. Feinberg asks us to provide proof from our loved ones employer stating what his/her earning would have been or could have been had they followed a particular career path. In so doing, then we "might" be able to prevail. What is the purpose of this? Isnt this the intent of the Fund to begin with? It feels like Mr. Feinberg is asking us to do his job by providing him with this information and then he is free to ignore it if he wishes or if it does not meet his criteria, unspecified as it is.

In closing, because the Fund removes viable litigation options as a direct result of the legislation creating the Fund, the Special Master has the responsibility of ensuring that the appropriate sources and comparisons are used to develop the compensation amount. This includes using relevant airline litigation cases, economic and non-economic theories applicable to the private sector, and interpreting legislation as Congress intended.

We appreciate your taking the time to read my concerns. Please do not hesitate to contact me if you would like clarification on any of these points.

Sincerely,


Individual Comment
Omaha, NE
Williamsville, NY

2002-01-21