dojN002494.xml

dojN002494.xml

born-digital

email

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2002-01-22

January 22, 2002


Via Facsimile:

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

Dear Mr. Zwick,

My husband, , died in the September 11 attack on the World Trade Center. I am
writing to
express my serious concerns and objections to the Department of Justice's (DOJ) "Interim Final
Regulations
Governing Payments Under the September 11th Victim Compensation Fund."

The airline bailout act gave the airlines $15 billion in cash and loan guarantees and capped the airlines'
liability for
the September 11 crashes at the limits of their insurance coverage. Because of this cap, the damage
caused by the
crashes greatly exceeds the private fund available to compensate victims and their families. Thus for the
vast
majority of victims and families, the cap has the effect of eliminating the right that they would otherwise
have to sue
the airlines. Congress set up the fund to ensure that the airline bailout would not come at the expense of
the victims'
families. The act mandates full and fair compensation to victims and their families for their actual
economic and
non-economic damages.

DOJ has ignored this mandate and instead has written arbitrary regulations that will result in
compensation levels far
below the losses actual suffered by the victims and their families. In fact, many families' total
compensation from
the fund and all collateral sources combined will not even fully replace lost income. In effect, these
families will not
receive any of the non-economic compensation required by the statute. After collateral sources are
deducted, as
required by the statute, some families would receive nothing from the fund under the interim final
regulations.

DOJ's formula allows for non-economic awards at only one-tenth the level paid incomparable cases,
even though
Congress explicitly enumerated a broader range of non-economic damages than could be recovered in
any single
jurisdiction. DOJ's formula for non-economic damages is $250,000 for the person killed and $50,000
for the spouse
and each dependent. In a wide variety of air crash and terrorism cases, however, judges, juries, and
mediators
commonly have provided non-economic damage awards well into the seven-figure range.

Independent economists have found serious flaws in DOJ's method of calculating economic damages,
including use
of outdated and inapplicable work life and life-cycle earnings data. DOJ greatly underestimates
promotions and
other increases in earnings for victims. It relies on civil service and military retirement system actuarial
data that
track federal worker incomes and pension requirements, not the higher-paying private sector career
paths followed
by the vast majority of the victims.

The interim final regulations also arbitrarily cap a victim's income at $230,000 a year. Combined with
the faulty
methodology described above, the income cap would result in some families receiving compensation for
less than
25% of their actual economic losses.

Under DOJ's rules, a family's award may be increased above the "presumptive" award only by a
showing of
"extraordinary circumstances"--beyond those suffered by other victims or victims' families. This high
burden of
proof makes a charade of the right of a hearing provided by the statute.

DOJ should fulfill the acts's intent by revising the rules to compensate victims and their families for the
type of
damages specified by Congress, at levels comparable to those provided in the tort system and the fund
was designated to
replace. While DOJ has shown flexibility on some aspects of the rules, it is resisting the victims' and
families'
requests for significant changes. If the proposed regulations are not changed significantly, victim's
widow will have
to sell their homes, deplete their children's college funds, and give up their plans of being full-time
parents while
their children are young. Many families, anticipating little relief from the fund, will decide to sue the
airlines and
others, despite the handicap of the liability limits. We do not believe these are the outcomes Congress
intended.

Please contact Attorney General John D. Ashcroft and Special Master Kenneth R. Feinberg and tell
them of your
concern that the interim final regulations fail to conform to the language and intent of the act. With the
regulations
soon to become final, I believe that only the swift and strong support of Congress can avert
unnecessary financial
and emotional damage.

Thank you for giving this matter your immediate attention.

Sincerely Yours,
Individual Comment
East Windsor, NJ

2002-01-22