W000453
November 20, 2001
The Honorable John D. Ashcroft
Attorney General of the United States
United States Department of Justice
950 Constitution Avenue, NW
Washington, DC 20530
Re: Victim Compensation Fund in the Air Transportation Safety and System Stabilization Act
Dear Mr. Attorney General:
As you know, on September 21, 2001 Congress passed H.R. 2926, the Air Transportation Safety and System Stabilization Act (now Public Law 107-42). This measure will provide a much needed tool for help and healing for the families affected by the terrorist-inflicted tragedies. The Victim Compensation fund created within Title IV of that Act was created for just that purpose.
As I am sure you are aware, this fund is a major undertaking not only because of the multitude of victims for whom it is intended to provide relief and tremendous cost to the American taxpayer, but also because these victims very likely will receive relief that they would not recover if they choose to go to court as per the normal course. This is because the fund was created to compensate without requiring proof of fault or liability - which relieves the victims of the normal
legal burden they will have difficulty overcoming in court with regard to this particular tragedy. There are victims of other tragedies for whom we were not able to provide such a means of "no fault" relief. For these reasons, the class of individuals entitled to recover from the fund was expressly limited only to those that suffered physical injury or were killed as a direct result of the terrorist incidents of September 11, 2001. See P.L. 10472 Title IV, section 405(c)(2)(ii). Moreover, the damages forwhich they are eligible to be compensated must be the direct result of the qualifying physical injury.
Individuals other than those victims explicitly covered under Title IV, including family members of the defined class of victims, may have colorable legal causes of action in their own right. Under the clear language of the statute, those individuals are not part of the class entitled to receive "no fault" relief under the fund - however, they are not precluded from pursuing their claims in court. That should be made clear to the American public - by limiting the class entitled
to relief under the fund, we did not preclude those outside the class from their day in court. Similarly, those who are within the defined class intended to be compensated are also free to choose to go to court rather than access the fund if they feel unduly restricted by the parameters of the claim process.
Moreover, the intent in including a provision in the legislation that funds received from collateral sources be deducted from any award was not to unfairly penalize those who receive compensation to which they are entitled through insurance or otherwise. It was, however, to
ensure that there is no duplication of compensation, regardless of the source. This is important to the administration of this unusual fund in order to ensure that there are adequate funds to be distributed to those in need.
We must remember that the resources of the American taxpayer are not unlimited and truly they have responded very generously to these horrible events. It would be wrong to take undue advantage of their generosity by an increasing their burden exponentially beyond the defined parameters of the fund. As we all know, the fund was not created to give a windfall to these tragic victims, but rather to assist them in their time of need to get through the loss suffered at the hands of these terrorists. It goes without saying that this fund was not intended to be a boon certain classes of people who may opportunistically assist or represent the victims. And as noted
above, due to the intervening criminal act of terrorists, this likely will be relief that these tragic victims may not receive as effectively or expeditiously through the normal legal process since in court their lawyers will be required to establish liability of entities other than the terrorists.
Common sense parameters for the fund were necessary, clearly expressed in the language of the statute and need to be enforced. I urge you to adhere to the language and spirit of the statute and not be misguided by those that seek to expand the parameters of the fund's compensation,
whether or not the effort is well intentioned. If you do not, we risk the possibility that many of those intended will not receive adequate, needed relief in a timely manner.
It is clear that you face a herculean task of creating and administering this unusual fund and I have every confidence in your ability to do so. I look forward to working with my colleagues to
provide you with further input as this process progresses. Thank you for your efforts and diligence in this matter.
Sincerely,
Orrin G. Hatch
United States Senator
Ranking Republican Member
Senate Judiciary Committee