dojN002446.xml

dojN002446.xml

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2002-01-18

CONGRESS OF THE UNITED STATES
HOUSE OF REPRESENTATIVES
WASHINGTON, DC 20515-2107


January 18, 2002


The Honorable Kenneth Feinberg
Special Master
September 11th Victim Compensation Fund
U.S. Department of Justice
Washington, D.C. 20530



Dear Mr. Feinberg:

I am writing on the Department of Justice (DOJ) September 11th Victim Compensation
Fund
interim final rule published in the Federal Register December 21, 2001 (28 CRF part 104).

Let me begin by commending you for accepting the challenging position of Special
Master I
appreciate the work that you and the Department of Justice have accomplished with respect to
this
interim final rule to compensate the victims of the tragic September 11th attacks. No monetary
sum
could ever truly approximate full compensation for the loss of life or livelihood, a fact that makes
this
task ever more difficult. Nonetheless, Congressional action mandates that we come as close as
possible to fairly compensating the victims and their loved ones for their damages and sustained
losses.
As you know, many of the victims of September 11th are concerned about the Victim's
Compensation
Plan interim final rule. My district was particularly affected because many of the World Trade
Center
victims were Boston area aircraft passengers. In this letter, I bring some of these concerns to
your
attention so that you may consider making appropriate adjustments to the published rules.

On September 22, 2001 the President signed into law the Air Transportation Safety and
System
Stabilization Act, which constituted a $15 billion bail-out package in cash and loan guarantees
for the
airlines. In addition, the law capped the airlines' liability for the September 11th attacks with the
effect
of potentially depriving victims the opportunity to obtain full and fair compensation through
litigation.
Recognizing that victims' awards could be limited, Congress created the Victims Compensation
Fund
to provide a litigation alternative. Victims who elect compensation through the Fund relinquish
their
right to sue.

There are four areas of concern where modifications should be considered prior to the
final
rule's publication in early February in order to adequately compensate victims and loved ones.
These
include increasing non-economic compensatory damages, adjusting the formula for economic
damages, clarifying the collateral offset rule, and refining the burden of proof required by
beneficiaries
who request a hearing to receive increased compensation.

As you know, the Fund provides for damages limited to $250,000 per victim and $50,000
for a
spouse and each dependent. These awards are extremely low when compared to what most
victims of
airlines crashes or terrorism have won through the courts. It is common for juries to award sums
to




The Honorable Kenneth Feinberg
Special Master
September 11th Victim Compensation Fund
Page 2


victims of such tragedies in excess of $1 million. I ask that you reconsider the damages caps to
ensure
that they reflect the broad array of non-economic losses clearly outlined in the statute.

With respect to the formula used for calculating presumed economic damages numerous
experts have expressed the view that the methodology is flawed based on the use of outdated
federal
government data. If this criticism is accurate, I would ask that you reconsider this formula, or at
a
minimum, update the baseline data to more accurately reflect current incomes and pension
requirements for claimants of the Fund.

Regarding collateral source payments, I am very pleased that charitable contributions are
not a
required offset for claimants of the Fund award. However, the required offsets for collateral
source
payments should take into account any tax liability incurred by a collateral source payment or any
fee
required to secure a collateral source payment.

Finally, I ask that you reconsider the high standard required by claimants to increase their
presumed award. The Fund's hearings require that claimants demonstrate "extraordinary
circumstances" in order to increase their award. This threshold appears to unjustifiably limit
claimants
from securing appropriate compensation. I ask that a more reasonable requirement be considered
for
adjustments in Fund awards.

The victims of this horrific tragedy from my district and from throughout the country
were the
first casualties in our nation's war against terrorism. The families of the victims now bear the
enormous burden of healing and moving on with their lives. They are being promised full and
fair
compensation in exchange for waiving their right to sue for damages. The federal government
had an
obligation to keep its promise so that these remarkable Americans are not victimized again. I
urge you
to weigh carefully their legitimate concerns regarding the interim final rule.

I thank you for your consideration of these important issues.

Sincerely,
Comment by:

Edward J. Markey
Member of Congress

2002-01-18