N002536
THE NATIONAL CENTER FOR
Victims of Crime
January 18, 2002
Via electronic mail, facsimile and U.S. mail
Kenneth L. Zwick, Director
Office of Management Programs
U.S. Department of Justice
Civil Division
Main Building, Room 3140
950 Pennsylvania Avenue, NW
Washington, DC 20530
Re: Comments of Interim Final Rule
September 11th Victim Compensation Fund of 2001
Dear Mr. Zwick:
The National Center for Victims of Crime is the nations's leading resource and
advocacy organization working on behalf of crime victims. Since our inception in
1985, we have worked in partnership with thousands of service providers and
criminal justice agencies throughout the country to help victims of crime rebuild
their lives. In the wake of September 11, we have been working closely with
victims and victim service providers to try to cope with this unprecedented tragedy.
The Fund was intended to compensate September 11 victims for their economic and
non-economic losses. Given the cap on the airline industry's liability and the
decision to force victims to chose between civil litigation and the Fund, it was also
hoped that the Fund would be an attractive alternative to civil litigation. The
Interim Final Regulations do not achieve either of these goals. As a result, many
victims are skeptical of the Fund, and intend to either pursue civil litigation, or at
least wait to evaluate how other claimants fare before choosing their own path.
There is still an opportunity to make the Fund the program Congress intended it to
be. In the final regulations, we hope that you will address the following
fundamental issues of fairness, due process, and Congressional intent:
I. The Interim Rule Provides for Unacceptably Low Compensation Levels.
In creating the Fund, Congress intended to provide full compensatory
damages to all eligible victims who opt into the program. The Act defines
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January 18, 2002
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economic loss as " any pecuniary loss resulting from harm"; the only limitation being "to the
extent recovery for such loss is allowed under applicable State Law."
The definition for non-economic loss contains no restrictions or artificial caps of any
kind. In fact, the Act sets forth a wide variety of elements which must be considered in
determining non-economic damages. The limitations set forth in the interim regulations
render these statutorily mandated elements meaningless. This "one-size-fits-all"
approach violates the intent of Congress.
Furthermore, the Interim Rule provides for unacceptably low payments. The figure for
non-economic damages is a small fraction of what these victims could anticipate
recovering in a civil lawsuit. Because claimants are required to waive their right to any
civil recovery, the damages awarded should be more comparable to those that would be
received in a civil lawsuit.
II. The Collateral Source Rule Should be Modified in Ways That Are Fully Consistent
With the Act.
A. To the extent that collateral sources have to be deducted, this should happen
before non-economic damages are added to the award. That is to say, collateral
source deductions should be from compensatory damages only, and should not be
deducted from non-economic damages under any circumstances. As the regulations are
currently written, many potential claimants will get nothing because of the collateral
source rule. Every eligible claimant should be guaranteed some minimum award.
B. It is inconsistent with the Act to deduct pensions form awards. The Act creating
the Fund explicitly states that a collateral payment can only be used to reduce an award if
it was "compensation the claimant has received or is entitled to receive as a result of the
terrorist-related aircraft crashed of September 11, 2001." Pensions are not compensation
for a loss. Rather, a pensions is a financial asset, much like a savings account or mutual
fund investment. It is an asset of guaranteed retirement earnings. The only way it would
be equitable to deduct pensions form an award is if future lost earnings are calculated to
include retirement earnings.
III. Claim Forms Should Be Modified.
A. The application forms for the Fund should clearly inform claimants that they
are waiving important legal rights by participating in the compensation program.
In a prominent place on the forms, it should be clearly stated that: 1) by participating in
the Fund, claimants are waiving important legal rights, particularly the right to file a civil
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January 18, 2002
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lawsuit; 2) claimants are encouraged to consult with an attorney; and 3) attorneys are
available to represent them free of charge.
B. The forms should be changed to be less intimidating for undocumented aliens
and other foreign nationals. While the regulations seem to indicate that undocumented
aliens and other foreign national will be able to file claims with the Fund, the forms
themselves discourage such filing by asking for a social security number and a passport
number.
IV. The Regulations Should Be Modified to Ensure That Claimants Receive Certain
Due Process Guarantees.
Due process is required for any governmental function to earn public confidence. In
several ways, the due process elements of this program under the Interim Regulations fall
short.
A. A plaintiff should not have to demonstrate "extraordinary circumstances." to
take his or her case outside of the "presumptive award methodology." This
methodology defeats congressional intent, and to require such a high showing is a denial
of due process. Congress intended awards to be based on individual determination.
There were more than 3,000 victims in this tr4agedy; more than 3,000 unique cases with
circumstances which differ in important ways form the presumptive methodology. While
the charts may be an apt starting point, any showing of unique circumstances (i.e.,
circumstances which differ in some way from the presumption.
B. ALL award determinations must be subject to some type of review. Under the
current Rule, only awards determined on the basis of documentation (i.e., a Track A
filing) may be reviewed. Track B filings (determinations following a hearing) are
apparently not appealable or subject to review. This is not due process. Congress
intended for claimants to have the ability to offer evidenced, "including the presentation of
witnesses" which necessarily entails a hearing. To deny claimants who opt for a hearing
any opportunities to appeal determinations they believe to be unfair is a significant failure
of due process.
C. The presumption that hearings will not exceed two hours is rigid and arbitrary.
This presumption will make it impossible for many claimants to present their full case.
The damages portion of a wrongful death lawsuit can often take several days. There
should be no presumed time limit for hearings, with the only qualifications being that
hearing officers can refuse to consider testimony or evidence which is deemed to be
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January 18, 2002
Page Four:
cumulative or irrelevant. The right to a hearing must be a meaningful right.
V. By Making a Claim, Victims Should Not Lose Their Right to Sue Terrorist,
Terrorist Organizations, or Countries Sponsoring Terrorism.
Although the Special Master has publicly stated that claimants will not give up their right
to sue terrorists or supporters of terrorism, the regulations should be changed to reflect
this. The Fund was created as a part of the Air Transportation Safety and System
Stabilization Act, which was intended, at least in par, to protect the financial stability of
the domestic airline industry. The Act could not have been intended to protect the
financial interests of terrorists or terrorist organizations. The regulations should leave no
room to interpret the Act as prohibiting suits against terrorist, terrorist organizations, or
countries who sponsor terrorism.
VI. Victims Who Have Suffered Latent, But Not Evident Harm, Should be Allowed to
Make Claims.
There is no rational basis for distinguishing these victims from victims with more
immediate, obvious injuries. The regulations addressing the time limit on filing claims
should be modified to say that claims can be filed within two years of the effective date
of the regulations, or within one year after the victim discovers, or reasonably could have
discovered, that he or she suffered an injury, whichever period of time is longer.
Similarly, otherwise eligible victims who have suffered emotional and psychological
harm that has resulted in physical manifestations should be eligible to make a claim. the
unreasonable. Many people were simply unable to get to their medical care providers or
had more pressing concerns in the immediate aftermath of the attacks.
VII. The Regulations Should Make Clear That the Money Used to Pay Awards Under
the Fund Should Not be Taken Out of Federal Victims of Crime Act (VOCA)
Funds.
While the National Center for Victims of Crime supports the concept of compensating
victims through a fund like this one, such generosity should not be at the expense of
millions of other crime victims served by the state compensation and crime victim assistance
programs. The VOCA funds were intended to go to the states and should be
used by the states.
Mr. Kenneth L. Zwick
January 18, 2002
Page Five:
We hope that these comments will provide useful guidance as you create final regulations which
more fully comport with the Act, and more importantly, fairly compensate all eligible claimants.
Thank you for your attention to these matters.
Sincerely,
Comment by:
THE NATIONAL CENTER FOR
Victims of Crime
Washington, DC