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2001-11-26

Federal Bar Association

Washington, D.C.



November 26, 2001




ORIGINAL VIA E-MAIL To

victimcomp.comments@usdoj.govs



Mr. Kenneth L. Zwick, Director

Office of Management Programs

Civil Division

U.S Department of Justice

Room 3140

950 Pennsylvania Avenue, NW

Washington, DC 20530

Re: September 11th

Victim Compensation Fund of 2001



Dear Mr. Zwick:



On behalf of the Alternative Dispute Resolution Section (the "Section ") of the Federal Bar
Association ("FBA"),we respectfully submit comments on the proposed Rule To Implement The
September 11th Victim Compensation Fund of 2001, above referenced (hereafter the "Proposed
Rule").(1) The Section consists of attorneys and associated professionals in government service, private
practice and industry. We seek to improve the process of resolving adversarial conflicts that involve
legal issue of federal consequence. In that regard the Section has a strong interest in submitting public
comments on pending legislation, regulations and other procedures concerning alternative solutions to
litigation of federal issues.



The Proposed Rule would implement Title IV of the air Transportation Safety and System
Stabilization Act of 2001 (Pub, I. No. 107-42 115 Stat. 230 (the "Act"). That Title provides for
federal payments of compensation from a Victims Compensation Fund (VCF) to eligible individuals
who were physically injured or killed as a result of the terrorist-related aircraft crashes on September
11,2001.



The Section believes that the Act provides an excellent framework for the establishment of a
victims claims procedure or process. Moreover, the Department of Justice ("Department") identified in
the Notice of Inquiry and Advance Notice of Rulemaking virtually all the issues that should be
considered as the Department implements and administers the VCF.



All Claims Should Be Deemed "Filed" Only After Review and Certification




The Department should create a process that allows the government to review putative claims
for completeness before they are deemed "filed" because the Act does not allow hearing examiners
enough time to both verify the bone fides of a petitioner's claim and adjudicate the merits of the claim
itself.



Section 405(b)(3) of the Act states unequivocally that "not later than 120 days after that date
on which a claim is filed...the Special master... shall make a determination [on the claim]." The Act
does not define the term "claim." We concluded, however, that Congress spoke to making
determinations of a claim's merit. This conclusion comes from the guidance provided about the nature
of the proceedings. In this regard Congress directed that the Special Master afford claimants an
appropriate measure of due process that includes "the right to present evidence, including the
presentation of witnesses and documents" (Section 405(b)). We believe the Congress viewed
presenting "witnesses" and "documents" as two separate and distinct functions because Congress chose
to differentiate one from the other. If Congress wanted to limit presentations of testimony to affidavits,
Congress may well have spoke only the presentations of documents. Consequently it seems that
Congress anticipated that the hearing examiners would hold evidentiary hearing of some sort where live
testimony could be presented.



Although 120 days covers a quarter of year-not an in significant amount of time, we believe
that Special Masters may find the period only long enough to permit a careful examination of the merits
of a claim. This certainty would be the case where a claimant requested an evidentiary hearing or the
hearing examiner found it necessary to convene a hearing or have someone acting on his or her behalf
take other steps to verify information presented by a claimant. If a hearing examiner could stay the
claim period to gather more data, nothing more would be need. However, because Congress was
silent on the matter of stays, we cannot presume such a power was intended.



Consequently, the Attorney General should structure the process to enable the government to
ensure that a "claim contain all essential information and materials at the time it is deemed "filed." To
this end, we recommend that the Department define the term "claim" to mean the submission of a
complete claims package.



Under our proposal, the 120-day period would begin after a government official, certified or
otherwise determined that a claimant had completely filled out a Claim Form (promulgated pursuant to
Section 405(a)(2) of the Act) and supplied such supporting materials as required to make a prima
facie showing of entitlement, i.e., a showing of eligibility with enough particularity for submission to a
hearing examiner. Having submissions reviewed for eligibility and completeness before they become
"claims" would ensure the Department's hearing examiners have enough time to accept evidence, hear
testimony, as needed, and verify the merits of claims within the 120-day statutory limit.



We propose that people with paralegal training or otherwise qualified administer the intake
process--the preliminary review of a claimant's submission. These administrative personnel would
review documents submitted and identify information that may be missing or additional information
needed to resolve the claim. Rather than rejecting submissions lacking data, the reviewers would return
submissions to claimants for supplementation with directions for providing the additional required
information. With regard to the latter, the intake personnel should be able to provide instructions and
assistance to claimants proceeding pro se and those with special needs (non-English speakers, the
disabled, etc.) We believe providing a mechanism for assisting claimants in the preparation and
submission of their claims is consistent with the Act's emphasis on providing a simple, straightforward
and inexpensive procedure.



Claims Packages Should Contain Information Sufficient to Establish a Prima Facie Case of Entitlement




The Act provides enough guidance about what should be submitted where it places limitations
on the bases for the payments from the Fund. The Claim Form should be fashioned so it requires from
claimants enough data and with enough specificity to establish a prima facie case regarding:



1. His or her eligibility to file the claim and to receive compensation;

2. The extent of harm suffered, including any economic and noneconomic losses; and

3. The amount of collateral compensation received or to which the claimant is entitled.



The claimant should be required to sign the Claim Form and affirm the accuracy of the
information presented under penalty of perjury. It is the combined experience of the Task Force that
having claims notarized seldom increases the trustworthiness of the information. The directions for
affixing a signature should explain the consequences of such an affirmation. The process should require
that claimants append to their form all information that supports their claim. The Attorney General
should establish and publish rules for the authentication of documentary evidence and for the content of
supporting affidavits. If the claimant intends to rely upon witnesses to establish portions of the claim,
these witnesses should be identified in an appendix to the Claim Form.



The Attorney General may want to stipulate the nature of documentary support the government
will consider adequate to make a prima facie claim. The rules might require that a claim submitted for
a deceased person be accompanied by a certified copy of a will that names the claimant as the person's
executor. Certified copies of tax returns might be required to establish the income stream for a
claimant. However, when creating the documentary requirements for claims, the Attorney General
should keep them to minimum in order to minimize the expense and time needed to submit a complete
claim. In addition, we believe that the Attorney General should establish and publish rules detailing
what forms of documentation the government will accept to establish the key elements of a claim. The
notice inviting comments suggested that requirements for a claim may need to vary depending on the
type of claim submitted (e.g., claims on behalf of decedents vs. claims by survivors). We suggest that
sworn statements or affidavits from unrelated third parties should be permitted where needed to
establish facts that cannot otherwise be documented because the necessary records were destroyed in
the attacks.



Qualifications of Hearing Officers and Scope of Authority




The great number of September 11th victims portend the filing of many claims and an attendant
need for a great many qualified hearing officers. We suggest that the Department choose as hearing
officers lawyers with experience or training in economics and labor economics, and litigation. Also, the
hearing officer corps should be limited to attorneys admitted to practice for at least 10 and, possibly, 15
years. We believe that selecting counsel experienced in mediation or arbitration would help further the
cause of completing claim determinations within the 120-day period. The ADR Section of the FBA
would gladly assist the Attorney General in locating lawyers possessing these qualifications.



We feel that Congress intended that hearing officers have the power to compel evidence. This
power can be inferred from 404(2)(2), 405(b)(4)(c), and 407.



The internal review board, or boards, could include retired federal and state judges, especially
retired appellate judges. Review boards should consist of at least two members for each decision of a
hearing officer, or recommended decision of a hearing officer. They would conclude their work on a
claim by submitting, in addition to the hearing officer's determination, the review board's written
recommendation for submission to the Special Master for a final decision.



Insuring The Integrity Of Claims Processing




We believe that the Attorney General may wish to augment the claims process having another
official help the hearing officers that the Special Master appoints. This official would review all claims,
and assist in assessing the nature and weight of the information contained in the claims by verifying the
information. Given the tight time frames for adjudication, we believe that an additional official, such as a
deputy to the hearing examiner, would enhance the likelihood that claims will be given their due while
preserving the fairness of the process and protecting the taxpayer from inadvertent payments of
unverified claims. Senator Daschle and Representative Gephardt in comments that they submitted on
October 25, 2001 suggested that a representative of the Department perform this function. They
suggested that the Department's representative be present to comment on the evidence and ask
questions to ensure that a complete evidentiary case (and not one that favored the claimant only) be
presented to the Special Master. Whether hired from the Department or elsewhere, the person should
have a background in economic, insurance-like claims and a familiarity with the common law rules of
evidence. With respect to the latter, the person should be qualified to help the hearing officer decide
the degree of trustworthiness to be accorded submitted evidence. We urge that the Department define
that individual's role in such a way that the process stays as non-adversarial as possible.



Consider As Collateral Funds From All Sources




The ADR Section suggests that every payment a claimant may have received or may receive
from any source be considered as a off-set in determining how much the claimant should be entitled to
under the VCP. This interpretation we believe is consistent with the statute, the generally accepted
rules of statutory construction, and the intent of Congress. Moreover, despite the arguably strong
policy reasons for excluding charitable contributions from the definition of collateral sources, the Section
recommends against such an exclusion. This exclusion is not only contrary to the text of the statute, but
may be contrary to the intent of the charitable organization in providing the contribution. Equally
important, such an exclusion could have the effect of penalizing those victims who have not been
fortunate enough to receive charity.



In its request for comments, the Department noted that strong policy reasons exist for excluding
charitable contributions from the definition of "collateral sources." Some of those who already
submitted comments raised another argument. They say that charitable contributions are legally
different in character than the payments authorized by the Act. They say that the specific examples in
section 402(4) are contractual or statutory entitlements and that, consequently, charity payments should
not be included as offsets.



However, we believe that a fair reading of all the language and a consideration of the statutory
intent suggest that the term "all" was meat to encompasses or include every collateral source or the
totality of collateral sources. Such a statutory reading is consistent with the way of term "all" is
generally defined and is thus consistent with the plain meaning of the term. See, Webster's Ninth New
Collegiate Dictionary, Merriam-Webster Inc., Springfield, MA, 1985, at 70-71. Turning to the
dictionary is consistent with the well established proposition that when construing and applying statutes
one should accord terms their "plain meaning." In this case following the general rule comports with the
definition that Congress applied. Section 402(4) of the Act states that "collateral source" means "all
collateral sources including life insurance, pension funds..." The plain meaning is "all" does not changes,
nor should one read into the statute any unique meaning of this term simply because that statute does not
specifically include or exclude charitable contributions. We believe that when Congress enumerated
certain collateral sources, it intended that those items serve as examples only. Had Congress wished to
limit the types collateral sources to those listed, Congress would have so stated. This interpretation
is consistent with the tenor of the statute. Congress stated that "all" collateral sources "shall" be treated
as offsets to the amount of compensation set by a Special Master. Many legal commentators regard
the term "shall" as the strongest legislative directive. It seems, therefore, that Congress wanted to limit
the government's liability. For the foregoing, we believe that VCF funds should serve to supplement
other sources of compensation.



Furthermore, it would be arbitrary to allow those who receive charity, be it substantial or
otherwise, to also receive full-compensation from the VCF while others receive only fund payments
because they are without charity. Finally, it might be contrary to the rationale behind charitable giving to
interpret the statute in a manner that would allow those victims who receive charity to keep those funds
in addition to their VCF payments. Those making charitable contributions usually do so because they
perceive that the victims have added economic burdens that might not otherwise be met. Said another
way, charitable givers might not have volunteered their aid had they known that the victims would be
fully compensated by public monies. Our interpretation would recognize as total compensation all the
money received by a claimant from all sources to make the victim, or victim's relatives whole-precisely
the result Congress intended.



The Period Between Filing Comments And The Effective Date of the Regulations.




The Attorney General in his Notice of Inquiry and Advance Notice of Rulemaking stated asked
for guidance on when the VCF should become effective. The Section suggests that the Attorney
General consider pushing the effective date at least 60-days after December 21, 2001 to allow the
Department and the Special Master as much time as possible to create the claims apparatus the Act
envisions.



Enough time should be set aside to handle the great amount of work that will be required to
prepare for entertaining and determining claims. Congress created in the Act a blueprint for an
somewhat complex claims process. The Attorney General needs to choose a Special Master. The
Department must realign existing staff to administer the claims process or contract for the needed
personnel. The Attorney General and the Special Master must identify and hire qualified lawyers to set
as hearing examiners. The Claim Form must be designed and printed. The procedure for filing claims
must be reduced to writing and published in a manner expected to reach all potentially eligible
individuals. The list runs long. In addition, the determination of a claim will be exclusive remedy for
the thousands that elect the procedure. Consequently, we believe it incumbent that the Department
take care to create as close to an ideal process as possible. Although some individuals already filed
civil actions or have irrevocably committed to doing so soon, truncating the time available to create the
process simply to provide those people with an alternative to litigation should not take precedence over
the careful creation of the claims process.



* * *



The Section appreciates this opportunity to comment on the Proposed Rule. If you have
questions concerning our comments, please contact .


Respectfully submitted,



FBA Alternative Dispute Resolution Section by:




Section Chair


- and -


The September 11th Claims Process Task Force






____________________

(1) The Federal Bar Association is an association of attorneys who practice in various areas of
law relating to the Federal Government. The Alternative Dispute Resolution Section of the Federal Bar
Association, which consists of attorneys engaged in the resolution of legal differences without resort to
litigation or in conjunction with, and as an alternative to, litigation is authorized by the Constitution of the
Federal Bar Association to submit public comments on pending legislation, regulations, and procedures
concerning alternative solutions in lieu of the litigation of federal issues. These comments have been
prepared by the September 11th Claims Process Task Force of the Alternative Dispute Resolution
Section, with the direction and approval of Section leadership. The views expressed in these comments
reflect the of the September 11th Claims Process Task Force. They have not been
considered or ratified by the Federal Bar Association as a whole, or by any Federal agency or other
organization with which Section members are associated through their employment or otherwise. The
comments reflect the views of the Task Force members in their individual capacity and not that of their
employers.

2001-11-26