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2001-11-28

Wednesday, November 28, 2001 3:32 PM
Comments on the Department of Justice's Rulemaking Regarding
the September 11th Victim Compensation

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


Re: Comments on the Department of Justice's Rulemaking Regarding the September 11th Victim Compensation Fund of 2001



The following comments respond to the Department's November 5 Notice of Inquiry and Advanced Notice of Rulemaking Re: the September 11th Victim Compensation Fund of 2001. Lambda Legal Defense and Education Fund is the nation's oldest and largest legal organization working to advance the civil rights of lesbians and gay men. We are joined in these comments by the Human Rights Campaign (HRC), the Empire State Pride Agenda (ESPA), Gay and Lesbian Advocates and Defenders (GLAD), and the National Center for Lesbian Rights (NCLR). Organizational descriptions appear at the end of this document.


Our organizations have been assisting many individuals who lost their same-sex partners in the terror attacks of September 11. We submit these comments in their behalf and in behalf of others in the same circumstances. Our remarks focus on issues relevant to their eligibility for compensation from the Fund, the types of damages compensable, and the process by which individual survivors may seek compensation.


I. GUIDING PRINCIPLES


The laudable purpose of the September 11th Fund is to provide compensation for the losses of relatives of those who died, and those who were injured. See Air Transportation Safety and System Stabilization Act § 403. It is crucial for the many grieving families that the regulations implementing this purpose permit recovery for all deserving relatives, including the committed partners or non-biological childre of gay and lesbian victims of the terror attacks. For those whose family relationships do not meet certain strict formal legal definitions, the enormity of the loss of a beloved companion or parent could be compounded by the prospect of ineligibility for compensation intended for their protection. The Department of Justice should not permit this potential inequity. We urge the Department to include among relatives eligible for compensation those who lost their life partners or de facto parents or children, regardless of sexual orientation and marital status.


As Senator Charles Schumer noted in his October 31 letter to Attorney General Ashcroft:


The need for support and recompense is no less real for these survivors than it is for the countless other relatives who lost loved ones. America has reached out with enormous generosity to all of the victims because our common humanity recognizes that grief and loss are not reserved to any single culture or group * they are borne by each and every one of us, whatever our race, religion, or sexual orientation.



Many who lost their life companions after lengthy committed relationships have contacted our organizations. Very few of them had prepared wills with their partners, a circumstance which is not surprising considering the relative youth and good health they enjoyed. While many are fortunate to have the support of the biological relatives of the deceased, others (like many affected by this tragedy) face the added stresses of pre-existing family difficulties that have not abated in the wake of the attacks. Each and every one of them is reliant on the continuing good will and generosity of parents, siblings or children of the victim to treat them fairly.


The federal September 11 Fund should ensure fair treatment of all surviving family members, including same-sex partners and de facto children of those who perished. Operated on a simple principle of equitable distribution of damages in proportion to losses sustained, it can serve the Congressioal purposes of helping families to recover their economic security and allaying the financial uncertainty of survivors.


To accomplish this end, we suggest the following approach. All those who consider themselves survivors must, under this legislation, come together to seek compensation in a single claim. See § 405(c)(3)(a)(limiting claims to one per decedent). In that claim, the personal representative should submit evidence of the financial, physical and emotional losses suffered by each survivor. The Special Master then should (1) confirm that each individual seeking compensation is eligible, based on guidelines which include those in a family relationship of mutual interdependence (as partners or as de facto parent and child); and (2) determine how much compensation should be allotted to each individual, based on the specific evidence of that individual's losses. It is the responsibility of the personal representative, in turn, to distribute the total sum awarded in the proportions that the Special Master directs.


II. SPECIFIC RECOMMENDATIONS


A. The Personal Representative Should Act As A Fiduciary To Make A Single Claim On Behalf Of All Individuals Eligible For Compensation.


A statement of policy by the Special Master addressing certain questions related to the personal representative would provide much-needed guidance to families as they consider whether to make a claim through the Fund or to participate in a civil action. The Department should make clear how it will determine the identity of a personal representative, and more important, on whose behalf that personal representative is obligated to make claims for compensation.


"Personal representative" is a term common to many states' estates law. (For example, in New York, the Estates, Powers and Trusts Law (E.P.T.L.) § 1-2.13 defines "personal representative" as the individual who has received a letter to administer the estate of a decedent by the surrogate's court.) Already, many families have begun the process of distribtion of the estate and thus have received or are seeking letters of administration which identify the personal representative. The individual who acts as the personal representative for the estate should be the one entitled to file a claim with this Fund.


In a traditional wrongful death action, it is the duty of the personal representative to act as the fiduciary on behalf of the family of the deceased in prosecuting the suit. See, e.g., N.Y. E.P.T.L. § 5-4.1 (establishing right of personal representative to prosecute wrongful death action). The personal representative must distribute the proceeds of that action to the proper beneficiaries, in proportion to their losses. E.g., N.Y. E.P.T.L. § 5-4.4 (a)(1). The proceeds typically go neither to the personal representative who prosecuted the suit nor to the estate; rather, they go directly to the family members who suffered losses. Id; see also N. Y. E.P.T.L. § 5-4.1 Practice Commentaries. The court, not the personal representative, determines the amounts each individual receives. Id.


The federal Fund should likewise vest in the personal representative the duty to act as fiduciary on behalf of all those who consider themselves to be survivors, seeking compensation in proportion to their losses and distributing the awards accordingly. This approach makes the identity of the personal representative less important than the Department's determination of who is eligible to seek compensation as a survivor of a deceased victim, through that victim's personal representative. (See discussion below.) It reduces the likelihood of disputes concerning who should be appointed personal representative and ensures that all survivors have the same opportunity to present evidence of their losses. And it imposes a fiduciary duty on the representative to ensure that all potential beneficiaries' claims are fully and fairly presented, and distributed as the Special Master directs.


In the event that the personal representative for purposes of estate distribution does ot wish to take on the responsibility of filing a claim and formally agrees to step aside, a federal hearing officer should appoint another representative. In many cases, survivors may agree on the proper individual, but where the matter is contested the appointment should not be deferred to independent adjudication by state courts. In processing claims, a federal hearing officer will ultimately have to sort through the evidence presented on behalf of surviving relatives to determine who is eligible for compensation and in what amounts; it makes sense that the same officer should resolve disputes about the appropriate personal representative as well. Judicial economy and efficiency weighs against calling on an entirely separate branch of government to go through the same process. Moreover, the determination is best made by a federal officer with knowledge of the particular rules of the federal Fund as they will apply to the parties before him or her, rather than by a state court with expertise in a different set of laws.


B. All Relatives And Dependents, Including Same-Sex Partners and De Facto Parents And Children, Should Be Eligible For Compensation In Proportion To Their Losses.


In the grim task of valuing a life, the operative principle ought to be to award compensation to those whom the deceased helped support in both material and emotional ways. Those who lost a partner suffer the emotional deprivations of being without a day-to-day companion, in addition to the help of another paycheck within an intermingled household economy. Those who lost a parent have lost the support and guidance of someone who provided nearly everything. And those who lost a child will be without the security of their son or daughter's companionship and assistance as they grow older. Each survivor's losses should be equally considered and accounted for, based on the daily realities of emotional and financial support the victim provided. Compensation should not be limited by legal distinctions among types of relatives, bcause those distinctions may frequently be untethered to the actual family burdens shouldered by those who died.


Those eligible for compensation as a survivor of a deceased victim should include individuals who can show that they had (1) a family relationship of mutual interdependence with the victim, including as a de facto parent or child, and (2) suffered losses of the sort identified in the Act at §§ 402(5) and (7). Where the individual does not share a blood or legal tie with the victim,1 mutual interdependence is shown if the claimant shared a residence with the victim and was emotionally and financially intertwined in a familial relationship.


The federal Fund should look to New York's law governing emergency relief awards for guidance. Only days after September 11, Governor Pataki issued an Executive Order granting surviving partners of the World Trade Center attacks benefits comparable to those received by surviving spouses from the state's Crime Victim Board. See Exec. Order No. 113.30, Suspension of Provisions Relating to Crime Victims Awards for Persons Dependent Upon Victims of the World Trade Center Attacks (October 10, 2001), available at . Eligibility is based on a showing of mutual interdependence with the victim, in recognition that anyone who shared with the victim living expenses, day-to-day activities and the emotional bonds of a family deserves help in this time of need. That Executive Order follows the example set as early as 1989 by New York's highest court, which interpreted the state's rent control laws to protect the life partners of rent-controlled tenants. See Braschi v. Stahl Associates, 74 N.Y.2d 201 (1989). That Court held that the law's protection against eviction when a loved one dies "should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life." Id. at 211. Regulations codifying the Court's holding appear at 9 N.Y.C.R.R. 2104.6(d)(3).


Permittingall relatives who suffered losses to be eligible for compensation ensures equitable treatment of all the diverse families that suffered losses in this tragedy. As the United States Supreme Court recently noted, "[t]he demographic changes of the past century make it difficult to speak of an average American family. . . . [P]ersons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of childrearing," Troxel v. Granville, 530 U.S. ___, 120 S.Ct. 2054, 2059 (2000), and the same can be said of other daily supports for family members. The proposed criteria effectively account for the variety of family configurations and support obligations that Americans create today.


C. Notice To All Potentially Eligible Survivors Should Be Required Prior To Filing A Claim.


Personal representatives should be required to identify all those who meet the eligibility criteria outlined above for compensation, and to provide notice to each. New York law specifically contemplates that similar notice will issue "to all interested parties" before a court will hear evidence of damages sustained in wrongful death suits. See N.Y. E.P.T.L. § 5-4.4(1). Notice is a workable and indispensable element of a claims process in which one individual, the personal representative, has authority to bring forth evidence and litigate damages sustained by others. A claim should not be considered "filed" until the personal representative can show that all eligible survivors have received notice.


The process of identifying individuals eligible for compensation as survivors of a victim should not be unwieldy. The proposed eligibility criteria contemplate that those eligible will include close biological or adoptive relatives, those whom the victim supported or who inherited from the victim, and those with whom the victim shared a residence in a family relationship. These guidelines provide a simple and straightforward way to identify those whose losses should be compensated in a single claim.


If a personal representative fails to provide notice to all eligible beneficiaries, those who did not receive notice should have an opportunity to intervene in a pending claim, tolling the 120-day limit of § 405(b)(3), or to re-open a completed claim. Preliminary hearings should be available to determine eligibility for compensation if the personal representative refuses to present evidence of losses sustained by another potential claimant. Where the personal representative knowingly fails to bring a potential beneficiary to the Special Master's attention, penalties should be imposed, including the possibility of liability for breach of fiduciary duty.


If the Department requires each survivor to sign a waiver against bringing other litigation, only potential beneficiaries should be subject to the waiver requirement and each on the same terms as every other potential beneficiary.


D. All Types Of Compensation Should Be Available On Equal Terms To Same-Sex Partners.


Compensation for economic losses as defined at § 402(5) and noneconomic losses as defined at sec. 402(7) should be equally available to all those eligible for compensation in proportion to their demonstrated losses. There is no principled basis for distinguishing among survivors as to the kinds of losses for which recovery is available. For example, excluding anyone but a legal spouse from recovery for loss of companionship or loss of consortium would be to fail to account for actual losses suffered by many survivors and to impose a barrier that has the effect of discriminating on the basis of sexual orientation. The same would be true if same-sex partners were eligible for lesser amounts than legal spouses. Rather, everyone who suffered similar losses should be entitled to compensation under the same principles.


Noneconomic damages awarded to compensate for the conscious pain and suffering of the victim should be apportioned among the survivors in proportion to their other losses. While under some states' laws these damages wold be granted to the estate, that rule should not govern here, where so many victims died without a will. Consider the situation of one individual who has contacted Lambda. Denise and her partner Laura (not their actual names) were together over six years, and committed to one another in a ceremony of holy union through their church three years ago. Laura had worked in a support position in Tower One for over a year when the terrorists struck. The first plane hit and she was horribly burned over a vast portion of her body. As the firefighters rushed Laura to the hospital, the last words she was able to utter were Denise's name and phone number. Denise was the first one to the hospital. Laura fought for life for over a month before dying. Denise stayed at her bedside through this period of suffering, talking and praying alongside her while she silently struggled to live.


Because there was no will, Denise is now at the mercy of Laura's biological family to decide how long she may stay in the home they shared. Denise is making plans to move. And she faces even more anxiety because she apparently will not receive the financial cushion Laura provided for her through her employer's life insurance program. Because the employer's beneficiary designation forms were destroyed in the collapse of the buildings, Denise cannot document that she was the intended beneficiary on Laura's policy. So the money will be paid to Laura's estate, and not to Denise. Grieving and trying to carry on after the pain of this loss, Denise has no access to the basic support Laura intended for her, nor to the basic social safety net available for spouses.


Denise should be eligible for compensation for her emotional and economic losses under the federal Fund. She should also share in the damages awarded to compensate for Laura's pain and suffering before death * money that should not be denied to the person Laura cried out for with her final words.


E. Collateral Source Payments Made To Same-Sex Partners Should Reduce Their Awrds In The Same Proportion That They Are Eligible For Compensation.


Most of the individuals who have contacted us for assistance will be receiving life insurance distributions as the designated beneficiary on their partners' life insurance policies. Life insurance is defined as a "collateral source" payment under § 402(4), and therefore must be reduced from any award made. See § 405(b)(6).


To the extent that same-sex partners are ultimately eligible for compensation under this Fund, their awards should likewise be reduced by the collateral source payments they receive. By the same token, in the event that they * unfairly * are ineligible to collect September 11 Fund compensation, their collateral source payments should not be taken into account in reducing the award made to other family members.


F. Forms And Procedures Should Be Easily Accessible.


Easy access to the claims process and full understanding of its rules for all potential beneficiaries is vital for the Fund to achieve its purpose. To meet these goals, we suggest that all forms and informational materials published by the Department use inclusive language that would make clear to a surviving same-sex partner or de facto child or parent that she or he may be eligible for compensation, and the responsibility of the personal representative to include them in the claims process. Similarly, hearing officers should be fully trained in applying the eligibility criteria to these families, and alerted to the importance of avoiding any perception of discrimination. We also recommend designation of an ombudsperson to engage in outreach to surviving same-sex partners and children, to assist them in the claims process and advocate where necessary.



III. CONCLUSION


Strong policy reasons support an equitable approach to determine who may be eligible for compensation. Those who actually suffered losses as a result of the death of a loved one should share the right to compensation. Adherence to rigid legal distinctions would obscur the family realities of many of the diverse families who suffered as a result of this attack. By establishing a system that would permit claims by all survivors and compensation in fair proportion to actual losses, the Department would provide a model of fair, effective, and humane response to this horrific tragedy. It would also encourage families to elect compensation from the Fund rather than a civil action. This is because through the Fund, the constellation of family obligations that an individual victim might have undertaken could all be properly accounted for in allocating compensation.



Respectfully submitted,

Comment by:
Lambda Legal Defense and Education Fund
Chicago, Illinois
Human Rights Campaign
Empire State Pride Agenda
Gay and Lesbian Advocates and Defenders
National Center for Lesbian Rights

2001-11-28