W000456
Wednesday, November 21, 2001 11:03 AM
.1
Attachment 1:
November 21, 2001
VIA E-mail: victimcomp.comments@usdoj.gov.
and Fax: (301) 519-5956
Mr. Kenneth L. Zwick
Director, Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Zwick:
These comments are filed on behalf of the immediate family of a victim of the terrorist attack on the Pentagon on September 11.
Effective Date. There does not appear to be any need to make the regulations effective immediately upon publication, particularly if the Department of Justice (DOJ) intends to provide a comment period on the regulations when issued. DOJ’s point that a normal 30-day effective date allowing initial counseling and information dissemination is also well taken.
Relationship to Possible Civil Action. Our client has not filed or participated in a civil action to date.
If a person withdraws from a civil action within 90 days, and then ultimately decides not to file an administrative claim with the special master, or is found to be ineligible by the special master for any award, that person should be allowed to rejoin a lawsuit or initiate a lawsuit. The clear intent of Congress was that a party could not pursue both courses of action to receive an award. If a person is disallowed from pursuing an award under one system, he or she should be able to avail themselves of the other system, unless the reason for disallowance is that the person is not authorized to bring any action.
Topics #1 & 2: The Forms To Be Used in Submitting Claims Under This Program and the Information To Be Included on the Claims Form.
For families of Pentagon victims who died, listing of the deceased on the official Pentagon list of deceased victims should suffice to meet the requirement that the person was a victim of the terrorist-related air crash. If a death certificate is available, it should be submitted. However, if a body has not been recovered, a personal representative should be able to demonstrate that the victim was included on the Pentagon’s official list of victims. This is consistent with the determination of the court system for Fairfax County, Virginia for victims’ families seeking to open an estate; while this ordinarily requires a death certificate, the Court has made an exception which allows the estate to be open upon a showing that the decedent was on the Pentagon’s list. This list can obviously be verified by DOJ through consultation with DOD.
Demonstration that the individual filing the claim has been named as the executor of the will of the deceased, or has otherwise been determined by the appropriate state court to be the personal representative of the deceased shall suffice to make that person eligible to file a claim. The rule that "only one claim may be filed" must be enforced so as to allow the legitimate personal representative to proceed with a claim, even if another person has previously filed a claim on behalf of the deceased. That is, the one claim allowed to proceed shall be that of the bona fide personal representative, not necessarily the "first to file." As set forth below, a determination as to the personal representative made by an appropriate state court shall be definitive.
Topic #3: Procedures for Hearing and the Presentation of Evidence:
If a claim does not have adequate supporting information, the Special Master should be able to deem the claim not "filed" for purposes of establishing the 120-day deadline. Claimants should be given an opportunity to supplement the original claim with any missing information, thus eliminating the need for the Special Master to dismiss the claim and for the claimant to resubmit it.
Claimants should be allowed to submit their entire case in writing, if they so choose. However, if they prefer, they should be given the opportunity to appear before a hearing officer to present evidence or make a statement. Ordinarily, this would not be an adversary hearing. The claimant, or claimant’s attorney should be allowed to make a statement and outline the basis of the case, and respond to questions from the hearing officer. If the hearing officer requires further information, the claimant should be given the option of providing it at the hearing, or submitting it for the record, within a reasonable timeframe set by the hearing officer.
We disagree with the previous comments of another party stating that the U.S. government, through the Department, should be a party to the proceedings. This would create the unfortunate impression that the government was "adverse" to the claimant, and that the government was seeking to hold down the amount of any award. There is no reason to make the proceedings adversary as a matter of course. Instead, every effort should be made to ensure that victims and victim’s families are not fighting against the government.
If there are issues concerning who is authorized to file a claim, or, for example, whether a spouse is entitled to the presumptive amount for loss of consortium and society and companionship (as discussed below), opposing parties may appear before the hearing officer to make their case. In specific cases, if circumstances warrant, the government may seek to be heard on such issues.
Additionally, the government is certainly entitled to investigate claims (or particular assertions within claims) it suspects are fraudulent, and to take appropriate action where fraud is committed. (The Special Master should also require assertions supporting a claim to be made under oath, to deter fraud.) However, this legitimate governmental interest in preventing fraud should not turn every claim into an adversary proceeding.
The training provided to the hearing officers, and all officials involved in the claims process, may be more critical than their previous experience. It should be made clear to them that they are to see that claimants are to be treated fairly and compassionately. Claimants whose claims are technically deficient should not be given a difficult time, if the essential information needed to process a claim is readily discernable. Departmental employees should help clarify what needs to be done to complete a claim, and assist claimants in doing so, rather than playing "gotcha" with technical deficiencies. Hearing officers should be instructed that Congress has established the elements of non-economic damages, and should fully apply all that are applicable in a particular case, even if the hearing officer’s prior experience does not include application of all of these elements. Standards of proof should not be hyper-technical. Projected income levels naturally will be less than certain. Latitude should be given to claimants, as long as their claims are within a zone of reasonableness.
Topic #4: Procedures to Assist an Individual in Filing and Pursuing Claims Under This Title
Although "the Department believes that it is important that claimants be able to proceed without economic experts," the Department should certainly allow claimants, if they choose, to submit evidence from economic and vocational experts that goes to the issue of how much the victim would likely have earned over the course of his or her lifetime. This may be a complex issue in particular cases, and the Special Master is likely to benefit from the presentation of expert testimony (whether written or oral) on this subject. It is unclear how the economic damages can be determined without expert evaluation of the earning power and circumstances of the decedent.
If a claimant employs such experts, the claimant can pay the fees out of any award the claimant receives. There is no need for the Special Master to pay such amounts directly. Attorneys’ fees should be limited to no more than 20% of the award, as they are under the Military Claims Act and related legislation. [We are handling this matter on a pro bono basis, and are not receiving any attorneys’ fees.] Attorneys should be allowed to charge for expenses, to be paid by the claimant out of any award received.
Topic #5: Claimant Eligibility
As noted above, in the answer to Topics #1 and 2, for claims filed by the personal representative of a person killed at the Pentagon, inclusion of the decedent in the official list of Pentagon victims should be sufficient to establish the eligibility of the decedent as a "victim" on whose behalf a claim may be filed.
A claimant who was named as executor of the will of the decedent or who was determined under appropriate State law to be the personal representative of the decedent, shall be eligible to file a claim on behalf of a victim killed by the terrorist acts of September 11. If the personal representative is properly appointed under State law, that finding shall be conclusive. The personal representative should be required to identify all immediate family members (spouse, children in that class.
Accordingly, the personal representative should not be required to obtain a waiver of right to litigation by any other family member before being allowed to pursue a claim against the Fund. Such a requirement would give more remote family members a veto over the decision of the bona fide personal representative as to which course of action to pursue, contrary to the provision of the statute which vests this authority in the personal representative. Any other family member would be barred, under the statute, from pursuing the course of action not taken by the bona fide personal representative.
The Special Master should accept the determination of a court of competent jurisdiction as to who is the bona fide personal representative of a deceased victim. If, in a particular case, this has not been resolved as of the end of the two-year deadline for filing claims under the Fund, the Special Master shall deem the claim to be filed, but should be entitled to a waiver of the 120-day deadline until the personal representative issue is settled. It would be difficult, if not impossible, to make a determination of compensation concerning competing claims until the personal representative issue is resolved.
Topic #6: Nature and Amount of Compensation
Fundamental principles should be fairness and compassion. Congress already provided for compassion, through the breadth of non-economic harm allowed to be included in an award. Congress has determined the elements of non-economic harm that, if present in the individual’s circumstances, should be compensated. Fairness dictates that similarly situated claimants be treated equally. While economic harm requires analysis of individual claimants’ (or decedents’) financial circumstances to determine the appropriate level of compensation, the government should establish a uniform value for each type of non-economic harm, and the only analysis remaining is whether that element is present for the particular claimant or decedent (e.g., was there a spouse). For instance, the amount for pain and suffering of the deceased should uniform. In most cases, it will be impossible to tell whether victims were killed on impact, in a fireball, or in the collapse of a building. There should be a set figure for pain and suffering of the deceased victim prior to death. (For victims who survived, there may need to be a case-by-case analysis)
Similarly, the government should not try to value the loss of companionship, etc. on a case-by-case basis. Rather, it should be done based on nature of relationship, e.g., all spouses of decedents should receive same amount for loss of consortium. This amount is the same regardless of whether the deceased was a CEO or the janitor, or anything in between. Similarly, all children should receive same amount for loss of parental companionship and society. It is critical that the administration of the fund be fair and be perceived to be fair, and this will not happen if there are varying degrees of compensation for the same types of non-economic harm.
Establishing such amounts in advance will also help potential claimants evaluate the benefits of proceeding with the administrative claim process rather than participating in litigation. In order to carry out Congressional intent and make the administrative claim system an attractive alternative to litigation, the Special Master should establish levels of compensation for elements of non-economic harm that are comparable to amounts that have been awarded in similar litigation.
There should be a rebuttable presumption that a person having the specific relationship with the deceased is entitled to the established non-economic damages for loss of that relationship. If another party seeks to intervene to state that this presumption is inappropriate in a particular case (e.g., parents stating their child was about to divorce his or her spouse, and therefore the spouse is not entitled to loss of consortium or society and companionship), the hearing officer should receive evidence on the issue. However, in the absence of such a dispute, the spouse or child should not have to "prove" entitlement to the established level of damages.
Collateral Sources: The Department has recognized that there are strong policy reasons as to why charitable contributions should be excluded from the calculation of collateral sources that reduce the amount of an award. Chief among them are the fact that the donors who contributed to such charitable funds have indicated that they gave without regard to other sources of compensation that might be made available to any victim. Moreover, as others have pointed out, a victim is not "entitled" to charity, and charitable contributions are different in nature from the list of collateral sources that Congress has indicated must be deducted from an award. Thus, the Department has the authority to exclude charitable contributions from the collateral sources, and it should exercise that authority.
For collateral sources that were specified in the statute, e.g., life insurance, 401K benefits, the Special Master should deduct from each collateral source of compensation the amount of funds (escalated to present value) that the victim (or the victim’s family) had expended in order to purchase or establish that source of collateral compensation (e.g., premiums for life insurance, contributions to a 401K plan ) prior to reducing the amount of the award by the amount of collateral compensation. In this way, victims and their families will not be penalized for prudent financial planning.
Establishing Consistency in Awards: As a practical means to ensure, to the extent possible, consistency and fairness in the determination of awards, the Special Master should establish an internal computer database and require hearing officers to input proposed awards two weeks prior to the deadline for presenting the award to the claimant. The hearing officer would indicate what elements of non-economic damages were present, and the system would plug in the amounts established by the Special Master for non-economic losses. The hearing officer would also include historical earnings and proposed economic damages, as well as collateral sources of compensation. Anything out of ordinary would trigger an automatic internal review by the Special Master or his or her staff before amount of award is presented to claimant.
Conclusion
We appreciate the opportunity to comment on the Department’s Advance Notice of Proposed Rulemaking, and would like to meet with the Department to discuss ways in which the Department can implement the suggestions we have made. We may also supplement these comments with more detailed additional comments before the close of the comment period.
Comment by:
FOLEY & LARDNER
Washington, DC