dojW000537.xml

dojW000537.xml

born-digital

email

yes

no

2001-11-25

Sunday, November 25, 2001 5:54 PM
September 11th Victim Compensation Fund of 2001

Ladies and Gentlemen,

Please accept this e-mail as my comments upon the proposed regulations intended to implement the above legislation.

I am the son-in-law of , who tragically perished in the World Trade Center terrorist attack on September 11th. was a stockbroker with on the 104th Floor of the South Tower. He was a Wall Street veteran of over three (3) decades. He is survived by his wonderful wife, , and his two daughters, , and (my wife). I mention these facts in order to remind the Department of Justice that we are dealing with people here. What you do in this process is critically important to the families that are still grieving, and who are looking to you for thoughtful, compassionate treatment in a often-times impersonal process.

I provide comments in response to your "Notice of Inquiry and Advance Notice of Rulemaking", by following the Topic # format laid out therein. Specifically, I submit the following:

Topics #1 & 2:
The claim form should be simple, short and standard. It should use plain English and not legalese. If something is missing from the claim, the claimant should be notified in writing and given a reasonable amount of time to correct the deficiency.

Topic #3:
a) The Special Master should not be allowed to delay the decision beyond the 120 days mandated by the Act. Otherwise, a system will develop like in other federal benefit hearings where the hearing officer will influence everyone to give more time (or be afraid of an adverse decision).

b) The Special Master should not be allowed to dismiss a claim until they have given the claimant notice of a deficiency in the form or materials filed by certified mail, return receipt requested and allowed a reasonable time for the claimant to correct the deficiency.

c) Every claimant should be permitted the option of an oral hearing before a hearing officer learned in the law (ie. a lawyer). Every claimant should be given his or her "day in court."

d) Every claimant should be permitted the right to appeal any rulings regarding legal issues (ie. interpretation of the regulations or Act language) to the Special Master. The Standard of Review should be de novo, just as an appeal from a trial court to an appellate court is when questions of law are at issue.

e) Every claimant should have the option of having a court reporter transcribe the record from the hearing.

f) Hearings should generally be located in the City where the tragedy occurred, unless a claimant has a hardship due to geographical location. Most claimants are probably close to the metropolitan area where the tragedy occurred.

Topic #4:
Fees of legal counsel and experts needed to present the claim should be paid for from the Fund. Claimants should not have their compensation further reduced by legal and expert costs. These costs should be considered an economic loss of the claimant.

Topic #6:
a) Every Claimant should be given the option of utilizing a standard method for calculating economic losses. This may enable some claimants to avoid having to hire expensive experts to prepare complex econometric analyses of lost income. It should not be mandatory, however, and any reasonably reliable method should be accepted as proof of economic loss.

b) No standard method should be used for determining non-economic losses. Mental anguish, pain and suffering, loss of companionship, etc. are not readily capable of a standard formulaic calculation. Each claimant is different. Each victim of the tragedies was different. You cannot stick this type of claim into a box.

c) Economic Loss - Any information about the employee's prospects for bonuses, promotions, salary increases, etc. should be admitted into evidence at the hearing. The prospects may be based upon performance evaluations, evaluations of success in the job for the first 8 months of 2001, future plans of the business and any other documentary, anecdotal or testimonial evidence. Since direct supervisory personnel and personnel records of the employee may not have survived the tragedies, the hearing officer should apply a very liberal approach to allowing evidence on this subject (eg. hearsay of management personnel, sample transactions reflecting exemplary jog performance, etc.).

d) Economic Loss - Calculations should be based upon the number of past years necessary to accurately reflect the skills and ability of the employee. This may be 2 years, or it may be 5 years. If an employee or his company had a bad year last year, then this should not be assumed to be a consistent trend. In addition, employees rarely stay with the same company for decades at a time - so the prospect of an employee leaving his Sept. 11th employer to make more money should be permitted as an argument.

e) Economic Loss - PLEASE ALLOW ECONOMIC LOSS TO BE BASED UPON GROSS INCOME - unless all awards will be free from Federal, State and Local government taxation.

f) Noneconomic Loss - How can you draw distinctions between the victims of the World Trade Center tragedy? If someone was killed instantly, does that mean that they suffered any less than if someone died of smoke inhalation. People went through horrific circumstances regardless of where they were. Victims should stand together as one - to do otherwise threatens to bring about a downward spiral of selfish claims about how one person's loved one suffered more so the claimant should be paid more. The U.S. Government should not encourage this type of silliness.

g) Noneconomic Loss - DO NOT SET ANY LOSS AMOUNT FOR CLASSES OF INDIVIDUALS: determine losses on a claim-by-claim basis. See b) above for further explanation.

h) Collateral Sources - ***THIS IS THE MOST IMPORTANT ISSUE***
For purposes of Section 405(b)(6) of the Act, the operative phrase is "collateral source compensation". In addition, Section 402 (4) expressly states that a collateral source includes "all" such sources. Usually, the meaning of a federal law is determined by reviewing the Congressional Committee report. It is my understanding that there was no report on the Act because of the speed with which it was passed by Congress. Thus, the DOJ should look to the common and ordinary meaning of the words at issue.

"All" is defined as "every; as much as possible." Webster's Third New International Dictionary at 54. "Collateral" is defined as "accompanying as a secondary fact, activity, or agency but usually extrinsic to a main consideration." Id. at 444. "Source" is defined as "a point of origin or procurement; a point of emanation." Id. at 2177. "Compensation" is defined as "something that makes up for a loss." Id. at 463. Thus, the definition for the term "collateral source compensation" could be "every secondary source of payments, which arose from the same basis that a claimant would be entitled to payments for under the Act."

BUT THAT IS NOT THE END OF THE ANALYSIS. Section 405(b)(6) also requires that the "collateral source compensation" be "as a result of the terrorist-related aircraft crashes of September 11, 2001." This should be interepreted to mean as a "DIRECT" result of the crashes. Any payments received as an indirect result of the crashes should not be included in the reduction of the award. Payments that might be received as a direct result of the crashes might include Workers Compensation benefits and Employee line of duty death benefits. Indirect payments received as an indirect result of the crashes would include standard life insurance, pension benefits, 401k plans, Employee Stock ownership plans, Annuities, etc. - all of which would have been received if the person had died for a reason other than the crashes.

The "Collateral Source Rule" applied by courts in most States is intended to prevent double recovery. Thus, it would make sense that a Workers Compensation award would be deducted from an award under the Act. Since many other employee benefits received by survivors of the victims of the crashes would not constitute a double recovery, however, the Regulations should reflect that such benefits are NOT to be deducted from the Special Master's award.

Thank you.


Individual Comment
Wilmington, DE

2001-11-25