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2001-11-28

Wednesday, November 28, 2001 3:14 PM
FAIR COMPENSATION FOR ALL SEPT. 11TH SURVIVORS!

Request Fair Compensation for All Surviving Family Members of September
11th Victims

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 children
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 Congressional 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
distribution 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 not 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, because 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
www.state.ny.us/sept11/exeorders/113_30. 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).
Permitting all 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

THANK YOU,

Individual Comment
MIAMI BEACH, FLORIDA

2001-11-28