Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. January 18,2002 By FAX and Regular Mail 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 Mr. Zwick: As you know, the Interim Final Rule implementing Public Law 107-42 (the September 11th Victim Compensation Fund of 2001) has been published for comment at the U.S. Department of Justice website. By this letter, I submit to you my comments on certain aspects of the Interim Final Rule. My concern focuses on a potentially serious ancillary result which may adversely affect a number of claimants who file claims against the Fund. Specifically, the wording of the Interim Final Rules appears to be at odds with the wording of the Eligibility Form (DOJ Form SM-001). In the Interim Final Rule, "Subpart F - Limitations" and Section 104.61 of such Subpart state that"...upon the submission of a claim under the Fund, the claimant waives the rightto file a civil action (or to be a party to an action) in any terrorist-related aircraft crashes of September 11, 2001..." [emphasis supplied] However, item 2 of "Section IV - Advance Benefits' of the Eligibility Form, in which the claimant acknowledges waiving the right to file a civil action, also states "Please note that this Waiver of Rights could apply to therights of individuals other than the claimant." [emphasis supplied] Thus, unlike the Eligibility Form, the Interim Final Rule makes no reference to potential rights of individuals other than the claimant, or to the waiver of such rights. I believe that this difference of language is critical, and must be harmonized either by modifying the Eligibility Form, expanding the language of the Interim Rule, or making both of these changes. Permit me to illustrate my concern by using a hypothetical example. Suppose a World Trade Center decedent is survived by a wife, no children, and the decedent's parents. Further suppose that the wife has been judicially appointed as the sole legal representative of the decedent's estate. As I understand New York law, the provisions of EPTL 5-4.4(a) would entitle the parents as deemed distributees to share in damages obtained in a wrongful death action brought by the wife as fiduciary. This result would occur even though, for purposes of intestacy, the widow would be the sole distributee. Therefore, once the wife makes a claim against the Fund, she presumably forecloses any possibility that the parents would have had to either commence a wrongful death action or to share in damages obtained in such action. The Eligibility Form is seemingly innocuous in its statement that the waiver of rights could apply to the rights of individuals other than the claimant. I submit that if the claimant wife is a lay person and has no legal counsel (or even for that matter if she has such counsel), the wife and/or her counsel could readily gloss over any implications of the Eligibility Form's statement upon reading it. Would it not be preferable to give the wife and/or her counsel actual notice in the Eligibility Form that those "individuals other than the claimant" could include the decedent's parent or parents? Otherwise, unless she received a written release from the decedent's parent(s), the claimant wife could end up defending a subsequent lawsuit brought against her by such parent or parents, asserting that she had no legal authority to waive the rights of the parent(s) or to preclude them from bringing a wrongful death action on their own. Of course, this hypothetical example assumes that the claimant wife can legally waive the rights of any third person who is not a signatory to the Eligibility Form. I suspect that this issue will ultimately be determined by a Federal court. The wife is arguably not the agent (actual or under apparent authority) of the decedent's parent(s). It is true that the wife as sole fiduciary in my hypothetical would have the exclusive legal ability to bring a wrongful death action, for the benefit of the decedent's distributees (see EPTL 5-4.4), and may thereby be able to derivatively bind the parents to a waiver by claiming under the Fund. However, it is theoretically possible for the parents rather than the wife to become legal representatives of the estate and thus bring a wrongful death action on their own. Based upon the foregoing, I propose the following: 1. Section 104.61 of "Subpart F - Limitations" of the Interim Final Rule should be modified to add this language in bold type at the end: "This waiver of rights could apply to the rights of individuals other than the claimant, such as a parent or parents of the deceased, who may be able to share in wrongful death damages pursuant to applicable state law. Claimants should consult with counsel prior to submitting a claim under the Fund." 2. Item 2 of "Section IV - Advance Benefits" of the Eligibility Form should be modified to expand the existing language to read as follows, all in bold type:"Please not that this Waiver of Rights could apply to the rights of individuals other than the claimant, such as a parent or parents of the deceased, who may be able to share in wrongful death damages pursuant to applicable state law. Claimants should consult with counsel prior to submitting a claim under the Fund." Thank you for providing the opportunity to make this submission. Respectfully yours, Individual Comment September 11 Email: Date The local time and date when the message was written. 2002-01-18 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojN002660.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2002-01-18