dojN002195.xml
Title
dojN002195.xml
Source
born-digital
Media Type
email
Date Entered
2002-01-21
September 11 Email: Body
Monday, January 21, 2002 8:39 PM
Sep. 11th Victims Compensation Fund
Dear Mr. Feinberg,
Attached is Rep. Meehan's Jan 14th letter.
Our nephew, , age 21, was murdered on Sept. 11th in the World
Trade Center disaster.
We argee with Rep. Meehan's concerns and hope that you will give his
correspondance every consideration.
Thanking you in advance,
Individual Comment
Westbury,
NY
REP. MEEHAN'S 1/14/02 LETTER TO MR. FEINBERG:
Dear Mr. Feinberg:
I am writing to provide comment on the interim final rules for the
September 11th Victim Compensation Fund ("the Fund").
I appreciate the hard work you, your staff, and the Justice Department put
into assembling the interim final rules. I also appreciate the fact that,
under the interim final rules, charitable contributions to persons injured in
the September 11th terrorists attacks or the relatives of those who lost their
lives in this tragedy will not offset Fund awards. I had weighed in on that
particular issue during the prior notice-and-comment period, in correspondence
dated November 26th, 2001.
At the same time, I strongly and respectfully request that the interim
final rules be modified to provide truly full and fair compensation for
economic and non-economic harm incurred by victims of the September 11th
terrorist attacks and their loved ones. I had emphasized the moral and
practical imperative of providing full and fair economic and non-economic
damage awards through the Fund during our meeting of December 13th, 2001.
Unfortunately, I do not believe the interim final rules achieve this
objective. More importantly, those directly affected by the September 11th
terrorist attacks consider the interim final rules to be seriously deficient
and are -- quite understandably -- angry, hurt, and frustrated.
A combination of unjustifiably low presumed non-economic damages awards, a
flawed presumed economic damages formula, the collateral source offset rule,
and an inappropriately steep evidentiary hurdle to securing modifications to
presumed Fund awards will operate in many instances to prevent victims and
their loved ones from receiving full and fair compensation -- and, on
occasion, any compensation -- through the Fund. This would frustrate
Congress's intent, deprive some families of resources critical to their
economic security, encourage litigation, and send entirely the wrong signal to
these families regarding our government's and society's estimation and
appreciation of the magnitude of their loss.
In the airline relief and airline security bills, Congress limited the
courtroom liability of airlines, the airline industry, the World Trade Center,
and other parties. It recognized that these liability limits -- operating
alone -- might deprive victims of the September 11th terrorist attacks and
their loved ones of full and fair compensation for the terrible harms they
have suffered. Thus, Congress created a government-funded program to provide
full and fair compensation for the economic and non-economic harm suffered by
victims and their loved ones, minus a narrow range of collateral source
payments. Notably, it did not subject the program to the annual
appropriations process. Rather, it funded the program through mandatory
spending. In other words, the manifest intent of Congress was to ensure that
the program fully and fairly valued the economic and non-economic harm
suffered by victims and their loved ones -- federal budgetary and cost
considerations notwithstanding. Indeed, this would not only benefit victims
and their loved ones but also reduce litigation arising from the September
11th attacks.
Along these lines, the fact that courtroom litigation may be less
attractive to victims and their loved ones due to the liability limits imposed
by recently enacted federal law certainly does not support valuing economic
and non-economic damages incurred by victims or their loved ones for purposes
of the Fund at levels significantly lower than what one would secure in a
successful courtroom action. Those liability limits instead make it
particularly imperative that damages estimates under the Fund be full and
fair. Again, this is not only good policy but also the clear intent of
Congress.
To achieve this objective, I respectfully urge you to modify the interim
final rules to increase presumed non-economic damage awards to amounts that
fully reflect the damages that Congress listed as compensable, correct any and
all methodological and statutory interpretation flaws in the setting of
presumed economic damages, and allow increases to presumed awards based simply
upon a showing that such awards do not accurately reflect the damages incurred
by victims and their loved ones (as opposed to requiring a showing of
"extraordinary circumstances" for increases to presumed awards).
First, the presumed non-economic damages awards provided under the interim
final rules are substantially lower than those paid in comparable cases. Non-
economic damage awards in considerable excess of $1 million are typical for
other airline crashes and terrorism cases, but in this instance, presumed non-
economic damages awards are limited to $250,000 per victim and $50,000 for a
spouse and each dependent. This dramatic undervaluation of presumed non-
economic damages runs contrary to Congress's general intent to provide full
and fair compensation and, significantly, to the specific language of the law
establishing the Fund, which lists an extremely broad array of non-economic
damages for which victims and their loved ones are to be compensated
(regardless of what may be allowable under state law). This problem bears
considerable responsibility for the fact that many victims or their loved ones
would reportedly be severely undercompensated or even receive no compensation
under the Fund - potentially driving them to pursue litigation which, due to
statutorily imposed liability limits, may shortchange them as well. The
interim final rules can and should be fixed to increase presumed non-economic
damages awards to amounts which properly reflect Congress's intent and are a
more realistic assessment of the considerable pain and suffering endured by
the victims of the September 11th terrorist attacks and their loved ones.
Second, a number of economists or experts have pointed out flaws in the
interim final rules' methodology for calculating presumed economic damages.
The use of outdated and improperly aggregated federal government data and the
underestimation of household services performed by victims and of real
increases in earnings by administrative support and clerical workers, among
other things, has resulted in the unjustified and unnecessary undervaluation
of presumed economic damages. The interim final rules' cap on the level of
income a victim may be considered to have earned per year for the purpose of
calculating presumed economic damages awards serves to exacerbate this
problem. I strongly urge you to provide interested parties with all
information that is necessary and useful to further evaluate the propriety of
the interim final rules' presumed economic damages methodology and then
correct all flaws that would tend to undervalue such damages.
The fact that these are merely presumed economic and non-economic damages
amounts - purportedly subject to upward adjustment based on specific evidence
of loss presented at hearings or through supplemental evidentiary submissions
by victims or their loved ones - does not excuse flaws in their calculation.
Rather, presumed awards should be based on the best available data and
methodologies regardless of the hearing or evidentiary submission option.
Indeed, the goal of providing accurate compensation expeditiously through the
Fund is furthered by having properly justified presumed Fund awards, as this
may diminish the need for hearings or supplemental evidentiary submissions in
each and every case. It also may be overly optimistic to assume that each
Fund claimant will be able and willing to present evidence at a hearing to
correct inaccuracies in the presumed Fund awards in light of their individual
circumstances. Indeed, one can reasonably expect that some victims or their
loved ones may, upon viewing inadequate presumed Fund awards, have little
faith in the ultimate fairness of the hearing or supplemental evidentiary
submission process and decide to forsake the Fund altogether.
More importantly, the misplaced requirement contained in the interim final
rules (though not contained in the statute establishing the Fund) that a Fund
claimant demonstrate "extraordinary circumstances" through supplemental
evidentiary submissions or at a hearing to justify increases to presumed Fund
awards could serve essentially to "lock in" the unfair presumed economic and
non-economic damage awards in any given case. Whether or not the presumed
awards are fair, upward adjustments should be possible simply upon a showing
by a claimant that a presumed award does not accurately reflect the economic
and non-economic damages he or she has endured. But this degree of
flexibility is particularly essential if the presumed economic and non-
economic damage awards would in many cases provide less than fair and full
compensation. The "extraordinary circumstances" threshold, however, may
prevent the accurate and individualized Fund awards intended by Congress,
because while all victims and their loved ones have endured extraordinary
hardships, it may be difficult for a single Fund claimant to establish that
his or her circumstances are "extraordinary" relative to all other victims and
their loved ones.
The hearing or supplemental evidentiary submission opportunities for
victims and their loved ones must certainly be structured so as to afford them
ample time and a convenient way to make their case. But even a properly
structured hearing or evidentiary submission process would not remedy the
difficulties arising from the inappropriately stringent "extraordinary
circumstances" standard. Congress did not erect or envision any such obstacle
to the award of accurate and individualized compensation to victims and their
loved ones. Indeed, as Congress has considered bankruptcy reform legislation
over the past few years, it has moved away from using an "extraordinary
circumstances" threshold for permitting deviations from a grid of allowable
expenses for debtors in favor of a standard that more readily accounts for
debtors' particular economic circumstances. Accordingly, the "extraordinary
circumstances" threshold should be modified.
I do appreciate the fact that the interim final rules will not offset Fund
awards by the amount of charitable contributions received by a victim or his
or her loved ones. I believe the collateral source offset provision of the
law is misguided. To the extent the final rules do offset Fund awards by
virtue of certain collateral source payments, I strongly urge that you
construe the collateral source offset provision of the law narrowly,
consistent with the tenets of proper statutory interpretation. In particular,
amounts paid by victims or their loved ones to secure certain types of
collateral source compensation -- for example, life insurance premium payments
-- should be deducted from any amount considered to offset a potential Fund
award. Likewise, where collateral source payments trigger new income or
estate tax liability, that new tax liability should be deducted from any
amount considered to offset a potential Fund award.
Thank you as always for your consideration and attention to these matters.
Sincerely,
Marty Meehan
Member of Congress
01/15/2002
Sep. 11th Victims Compensation Fund
Dear Mr. Feinberg,
Attached is Rep. Meehan's Jan 14th letter.
Our nephew, , age 21, was murdered on Sept. 11th in the World
Trade Center disaster.
We argee with Rep. Meehan's concerns and hope that you will give his
correspondance every consideration.
Thanking you in advance,
Individual Comment
Westbury,
NY
REP. MEEHAN'S 1/14/02 LETTER TO MR. FEINBERG:
Dear Mr. Feinberg:
I am writing to provide comment on the interim final rules for the
September 11th Victim Compensation Fund ("the Fund").
I appreciate the hard work you, your staff, and the Justice Department put
into assembling the interim final rules. I also appreciate the fact that,
under the interim final rules, charitable contributions to persons injured in
the September 11th terrorists attacks or the relatives of those who lost their
lives in this tragedy will not offset Fund awards. I had weighed in on that
particular issue during the prior notice-and-comment period, in correspondence
dated November 26th, 2001.
At the same time, I strongly and respectfully request that the interim
final rules be modified to provide truly full and fair compensation for
economic and non-economic harm incurred by victims of the September 11th
terrorist attacks and their loved ones. I had emphasized the moral and
practical imperative of providing full and fair economic and non-economic
damage awards through the Fund during our meeting of December 13th, 2001.
Unfortunately, I do not believe the interim final rules achieve this
objective. More importantly, those directly affected by the September 11th
terrorist attacks consider the interim final rules to be seriously deficient
and are -- quite understandably -- angry, hurt, and frustrated.
A combination of unjustifiably low presumed non-economic damages awards, a
flawed presumed economic damages formula, the collateral source offset rule,
and an inappropriately steep evidentiary hurdle to securing modifications to
presumed Fund awards will operate in many instances to prevent victims and
their loved ones from receiving full and fair compensation -- and, on
occasion, any compensation -- through the Fund. This would frustrate
Congress's intent, deprive some families of resources critical to their
economic security, encourage litigation, and send entirely the wrong signal to
these families regarding our government's and society's estimation and
appreciation of the magnitude of their loss.
In the airline relief and airline security bills, Congress limited the
courtroom liability of airlines, the airline industry, the World Trade Center,
and other parties. It recognized that these liability limits -- operating
alone -- might deprive victims of the September 11th terrorist attacks and
their loved ones of full and fair compensation for the terrible harms they
have suffered. Thus, Congress created a government-funded program to provide
full and fair compensation for the economic and non-economic harm suffered by
victims and their loved ones, minus a narrow range of collateral source
payments. Notably, it did not subject the program to the annual
appropriations process. Rather, it funded the program through mandatory
spending. In other words, the manifest intent of Congress was to ensure that
the program fully and fairly valued the economic and non-economic harm
suffered by victims and their loved ones -- federal budgetary and cost
considerations notwithstanding. Indeed, this would not only benefit victims
and their loved ones but also reduce litigation arising from the September
11th attacks.
Along these lines, the fact that courtroom litigation may be less
attractive to victims and their loved ones due to the liability limits imposed
by recently enacted federal law certainly does not support valuing economic
and non-economic damages incurred by victims or their loved ones for purposes
of the Fund at levels significantly lower than what one would secure in a
successful courtroom action. Those liability limits instead make it
particularly imperative that damages estimates under the Fund be full and
fair. Again, this is not only good policy but also the clear intent of
Congress.
To achieve this objective, I respectfully urge you to modify the interim
final rules to increase presumed non-economic damage awards to amounts that
fully reflect the damages that Congress listed as compensable, correct any and
all methodological and statutory interpretation flaws in the setting of
presumed economic damages, and allow increases to presumed awards based simply
upon a showing that such awards do not accurately reflect the damages incurred
by victims and their loved ones (as opposed to requiring a showing of
"extraordinary circumstances" for increases to presumed awards).
First, the presumed non-economic damages awards provided under the interim
final rules are substantially lower than those paid in comparable cases. Non-
economic damage awards in considerable excess of $1 million are typical for
other airline crashes and terrorism cases, but in this instance, presumed non-
economic damages awards are limited to $250,000 per victim and $50,000 for a
spouse and each dependent. This dramatic undervaluation of presumed non-
economic damages runs contrary to Congress's general intent to provide full
and fair compensation and, significantly, to the specific language of the law
establishing the Fund, which lists an extremely broad array of non-economic
damages for which victims and their loved ones are to be compensated
(regardless of what may be allowable under state law). This problem bears
considerable responsibility for the fact that many victims or their loved ones
would reportedly be severely undercompensated or even receive no compensation
under the Fund - potentially driving them to pursue litigation which, due to
statutorily imposed liability limits, may shortchange them as well. The
interim final rules can and should be fixed to increase presumed non-economic
damages awards to amounts which properly reflect Congress's intent and are a
more realistic assessment of the considerable pain and suffering endured by
the victims of the September 11th terrorist attacks and their loved ones.
Second, a number of economists or experts have pointed out flaws in the
interim final rules' methodology for calculating presumed economic damages.
The use of outdated and improperly aggregated federal government data and the
underestimation of household services performed by victims and of real
increases in earnings by administrative support and clerical workers, among
other things, has resulted in the unjustified and unnecessary undervaluation
of presumed economic damages. The interim final rules' cap on the level of
income a victim may be considered to have earned per year for the purpose of
calculating presumed economic damages awards serves to exacerbate this
problem. I strongly urge you to provide interested parties with all
information that is necessary and useful to further evaluate the propriety of
the interim final rules' presumed economic damages methodology and then
correct all flaws that would tend to undervalue such damages.
The fact that these are merely presumed economic and non-economic damages
amounts - purportedly subject to upward adjustment based on specific evidence
of loss presented at hearings or through supplemental evidentiary submissions
by victims or their loved ones - does not excuse flaws in their calculation.
Rather, presumed awards should be based on the best available data and
methodologies regardless of the hearing or evidentiary submission option.
Indeed, the goal of providing accurate compensation expeditiously through the
Fund is furthered by having properly justified presumed Fund awards, as this
may diminish the need for hearings or supplemental evidentiary submissions in
each and every case. It also may be overly optimistic to assume that each
Fund claimant will be able and willing to present evidence at a hearing to
correct inaccuracies in the presumed Fund awards in light of their individual
circumstances. Indeed, one can reasonably expect that some victims or their
loved ones may, upon viewing inadequate presumed Fund awards, have little
faith in the ultimate fairness of the hearing or supplemental evidentiary
submission process and decide to forsake the Fund altogether.
More importantly, the misplaced requirement contained in the interim final
rules (though not contained in the statute establishing the Fund) that a Fund
claimant demonstrate "extraordinary circumstances" through supplemental
evidentiary submissions or at a hearing to justify increases to presumed Fund
awards could serve essentially to "lock in" the unfair presumed economic and
non-economic damage awards in any given case. Whether or not the presumed
awards are fair, upward adjustments should be possible simply upon a showing
by a claimant that a presumed award does not accurately reflect the economic
and non-economic damages he or she has endured. But this degree of
flexibility is particularly essential if the presumed economic and non-
economic damage awards would in many cases provide less than fair and full
compensation. The "extraordinary circumstances" threshold, however, may
prevent the accurate and individualized Fund awards intended by Congress,
because while all victims and their loved ones have endured extraordinary
hardships, it may be difficult for a single Fund claimant to establish that
his or her circumstances are "extraordinary" relative to all other victims and
their loved ones.
The hearing or supplemental evidentiary submission opportunities for
victims and their loved ones must certainly be structured so as to afford them
ample time and a convenient way to make their case. But even a properly
structured hearing or evidentiary submission process would not remedy the
difficulties arising from the inappropriately stringent "extraordinary
circumstances" standard. Congress did not erect or envision any such obstacle
to the award of accurate and individualized compensation to victims and their
loved ones. Indeed, as Congress has considered bankruptcy reform legislation
over the past few years, it has moved away from using an "extraordinary
circumstances" threshold for permitting deviations from a grid of allowable
expenses for debtors in favor of a standard that more readily accounts for
debtors' particular economic circumstances. Accordingly, the "extraordinary
circumstances" threshold should be modified.
I do appreciate the fact that the interim final rules will not offset Fund
awards by the amount of charitable contributions received by a victim or his
or her loved ones. I believe the collateral source offset provision of the
law is misguided. To the extent the final rules do offset Fund awards by
virtue of certain collateral source payments, I strongly urge that you
construe the collateral source offset provision of the law narrowly,
consistent with the tenets of proper statutory interpretation. In particular,
amounts paid by victims or their loved ones to secure certain types of
collateral source compensation -- for example, life insurance premium payments
-- should be deducted from any amount considered to offset a potential Fund
award. Likewise, where collateral source payments trigger new income or
estate tax liability, that new tax liability should be deducted from any
amount considered to offset a potential Fund award.
Thank you as always for your consideration and attention to these matters.
Sincerely,
Marty Meehan
Member of Congress
01/15/2002
September 11 Email: Date
2002-01-21
Collection
Citation
“dojN002195.xml,” September 11 Digital Archive, accessed November 17, 2024, https://911digitalarchive.org/items/show/31145.