W000474
Wednesday, November 21, 2001 2:50 PM
September 11th Victim Compensation Fund of 2001
I'm forwarding the comments of the National Center for Victims of Crime.
I have also embedded the letter in the e-mail message below.
November 21, 2001
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: Notice of Inquiry and Advance Notice of Rulemaking,
September 11th Victim Compensation Fund of 2001
Dear Mr. Zwick:
We are pleased to submit the following comments which we hope will guide the Department of Justice as it works to fashion regulations implementing the September 11th Victim Compensation Fund. This program represents a tremendous benefit to victims of the recent terrorism, and we are eager to provide any assistance we can as you work to implement it.
Before offering specific comments, we wish to summarize some of the principles that guided our response to the Notice of Inquiry and Advance Notice of Rulemaking. First, we believe the program should be victim-friendly. It should provide for a streamlined application process, opportunity for individual hearings, and access to victim support professionals. As with other victims of crime, these victims deserve to be treated with fairness, dignity and respect as part of this process. In addition, because those who participate in this program will be asked to forego their opportunity for civil recovery from third parties, whenever possible their awards should mirror what would be available in a civil action.
The National Center's specific comments follow:
I. NATURE & AMOUNT OF AWARDS
A. The regulations regarding "collateral sources" should be drafted to reflect the following points:
1. The regulations should specifically state what types of payments constitute collateral sources. Currently, the Act gives a general definition of collateral source (i.e., "all collateral sources") and then gives specific examples. The general definition fails to define what a collateral source is. To be clear, and allow for consistency, the regulations should avoid the general definition, and only list those specific types of payments that are included as collateral sources.
2. Collateral benefits should not include payments from charities. It would be extremely difficult, if not impossible, to track all charitable contributions. To count some charitable contributions, but not others, would result in unequal treatment for victims. Moreover, it may reduce the availability of other charitable contributions to meet immediate, emergency needs. Charities may decide not to undertake efforts that later may be covered by the compensation program. Deducting charitable payments may also defeat the intent of many donors who intended their donations as general gifts, rather than payments for specific expenses. In addition, many of the charitable payments in the immediate wake of the attacks were for items which might not be compensable under the Act. Finally, the Act permits charitable payments to be excluded from the definition of collateral source because the Act makes no mention of charitable contributions.
3. Payments from outside sources should only be used to reduce an award if such payments were "compensation" for losses suffered on September 11. While §402(4) of the Act provides a general definition and some examples of collateral sources, §405(b)(6) greatly narrows the category of collateral source payments that actually can be used to reduce an award. Pursuant to this latter section, 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 crashes of September 11, 2001." (Emphasis added.) Thus, under §405(b)(6), pension funds should not be used to reduce an award because pensions are not compensation for a loss. Rather, a pension 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 from an award is if the regulations stipulate that future lost earnings are calculated to include retirement earnings.
At a minimum, if assets, such as pensions, life insurance policies, and death benefit programs are included as collateral source compensation that serves to reduce an award, then claimants should be given credit for money (e.g., policy premiums) that either a victim paid, or which was paid on a victim's behalf, in order to secure the benefit. To do otherwise would be to penalize people for sound financial planning, and it would improperly take account of assets which are not "compensation" for a loss.
4. Future collateral sources should only be used to reduce the award if the victim is certain to receive a specific payment at a specific future date. Even then, such a future payment should be reduced to current value. To reduce awards because of potential future payments will result in confusion and a lack of consistency among awards.
5. Collateral sources should not include "in kind" or material contributions. In a program with extremely tight, statutorily imposed deadlines, it would be difficult and expensive to come to come up with accurate, consistent valuations of the wide variety of "in kind" and material contributions that have been given to victims. In the spirit of fairness and not frustrating the donor's intent, such contributions should not be deemed a collateral source.
B. The regulations should set forth uniform rules on how damages will be awarded. To ensure that victims from different states will not be evaluated under different legal standards (and to ensure that no conflict-of-law problems will arise), there should be uniform rules for awarding damages.
C. The Special Master should not use schedules or matrices in order to determine an individual claimant's award. By pursuing a claim under the Fund, September 11 victims give up their right to file a civil lawsuit. Therefore, the regulations should strive to afford claimants as many as possible of the same remedies that are available to them in the civil justice system. The right to have one's individual circumstances considered is fundamental.
D. Like state crime victim compensation awards and personal injury damages awards in the civil justice system, awards from the Fund should not be subject to federal or state income taxation.
II. ELIGIBILITY TO MAKE A CLAIM
A. The regulations should make very clear who can recover under the Act. The statute limits claimants to persons injured in the attacks (and the personal representatives of those killed), but when enumerating the non-economic damages for which an award can be made, the statute lists claims that are typically for a surviving spouse or family member rather than the estate (e.g., loss of society and companionship). The regulations should clearly state that surviving family members have their own, derivative claims for things like "loss of society and companionship" and "loss of consortium." The regulations should also create uniform rules addressing which family members are entitled to share in an award (and how they will share in the award), and the regulations should make provisions for dealing with families that have experienced divorce, re-marriage, children born out of wedlock, adoption, or other events that impact upon the traditional family structure. Consideration should also be given to the rights of established domestic partners.
B. Victims who previously filed a lawsuit, but then withdrew it, should be able to re-file their lawsuit if they ultimately opt to not file a compensation claim, or they are determined to be not eligible to file a claim. The waiver of the right to sue comes into play only "upon the submission of a claim." It would be re-writing the Act to say that the waiver applies to those who chose not to file a claim. Similarly, the entire Act applies only to "eligible" individuals. To deny non-eligible individuals the right to sue would not serve the stated compensatory purpose of the Act. See § 403.
C. 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. Similarly, otherwise eligible victims who have suffered emotional and psychological harm that has resulted in physical manifestations should be eligible to make a claim.
D. The Act makes no attempt to distinguish victims who were undocumented or non-U.S. citizens, and neither should the regulations. Such individuals were just as victimized as everyone else who was harmed by the attacks. It is basic to our national character to treat these victims the same.
III. PROCEDURES FOR FILING CLAIMS
A. The regulations should create a procedure by which there can be an administrative appeal of the award. Such an appeal would be an appropriate and necessary "due process right" as allowed in §405 (b)(4)(C). Once a hearing officer makes an award, a claimant should have the right to appeal that award to the Special Master. By pursuing a claim under the Fund, September 11 victims give up their right to file a civil lawsuit. The regulations should strive to afford claimants as many as possible of the same due process rights that are available to them in the civil justice system.
B. The Act's two-year statute of limitations should contain an extension-for-good-cause exception. There are many legitimate reasons why victims or their surviving family members might not be able to submit a claim within two years. For example, there is a strong possibility that there will be victims who suffered latent but not yet evident harm. There is no justifiable reason why such victims should not be allowed to submit a claim.
C. The claim forms should not be so complex as to discourage victims from filing claims, and under no circumstances should individuals who have submitted claims lose their ultimate right to pursue a claim because the Special Master determines that there is insufficient information on the initial claim form. While we believe that all victims should consult an attorney before submitting a claim, the claim process should be simple enough that victims will not be intimidated and discouraged from submitting a claim regardless of whether or not they have an attorney. Toward this end, claims should be made available in a variety of different languages, reflecting the diverse nationalities and ethnic backgrounds of the September 11 victims.
Because of the wide range of quality legal representation and the strong possibility of claimants acting pro se, any victim who submits a claim that contains even the most basic identifying information should be deemed to have filed a claim, at least for the purposes of satisfying the statute of limitations (§405(a)(3)). If the Special Master needs additional information to fairly evaluate claims, procedures should exist for the Special Master to request the specific information required. The Special Master should not be permitted to dismiss a claim for lack of supporting documentation, at least not without first having made several clear requests for what is needed. This is not an adversarial proceeding. It is the goal of all parties to see that the victims of these attacks are fully compensated. §403. For the same reason, claimants should have the right to ask for an extension of the 120 day period in order to submit supplemental evidence.
D. All claimants should be entitled to an oral hearing. Victims have to give up basic rights in order to file a claim. They give up their right to have their unique stories heard in open court and evaluated by juries of their peers. The regulations should do as much as possible to make up for this loss and enable those who want to present their case to do so.
E. While a claimant may be able to proceed without an economic expert, any claimant who wants to use such an expert and have them present evidence should be allowed to do so. Procedures should be in place so that claimants are able to make their individual case as strong as possible, as they are allowed to in the civil justice system.
IV. MISCELLANEOUS
A. The regulations should clearly state the necessary qualifications for a person to serve as a hearing officer. Hearing officers have a great deal of power under this statutory scheme, and their decisions will have a great impact upon the lives of September 11 victims. At a minimum, hearing officers should have significant experience in the evaluation or litigation of civil personal injury claims. In addition, all hearing officers should be required to undergo training both about the substantive legal issues that they will confront, and more generally, about the intricacies of working with victims of crime.
B. For those victims who opt to have a hearing on their claim, the regulations should make provisions for them to work with trained victim advocates both before and during the hearing. For many victims, pursuing a claim under the Fund will be a painful, deeply emotional experience. When crime victims participate in the criminal or civil justice systems, it is often helpful for them to have the advice and support of a trained victim advocate. If a claimant has already been working with a victim advocate prior to filing a claim, that advocate should be permitted to accompany the victim through the claim process, including being present at the hearing. The regulations should also direct the Special Master to hire victim advocates who can assist claimants through the process, including being present at the hearing.
C. The Department should issue interim final rules which become effective on December 21, 2001. While under ideal circumstances, it would have been beneficial to have an opportunity to comment on proposed regulations before they go into effect, these are not ideal circumstances. Thousands of victims who may want and need to present claims to the Fund need to know how that program will be structured under the regulations, and they need to know this as soon as possible. They need to know how they are going to meet their ongoing financial obligations and begin to rebuild their lives. "Good cause" exists under 5 USC 533(d) to waive the 30 day requirement. Victims needs to know as much as possible about the Fund from the regulations so that they can decide whether to pursue a claim. Therefore, the "interim final" regulations should be as comprehensive as possible.
D. By filing claims under the Act, victims should not lose their right to file lawsuits against terrorists, terrorist organizations, or countries sponsoring terrorism. The Fund was created as part of the Air Transportation Safety and System Stabilization Act, which was intended, at least in part, 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 terrorists, terrorist organizations, or countries who sponsor terrorism.
E. 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 applauds the compensation that will be available through the Fund, 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.
F. The regulations must address priority of payment among the federal compensation program, FEMA, and state victim compensation programs, all of whom claim to be payors of last resort. However this issue is resolved, the ultimate goal should be to make the process as easy as possible for the victims. They should be able to have their needs met in as few steps as possible, and they should have as little responsibility as possible for seeing that particular payors receive whatever reimbursement to which they may be entitled. Furthermore, without significant supplemental funding, state victim compensation programs will not be able to bear the costs of compensating victims otherwise eligible for the federal program. Thus, we recommend that the state programs be the payors of last resort.
We are joined in our comments by the National Organization of Parents of Murdered Children.
Thank you for the opportunity to provide input as you develop the regulations for the September 11thVictim Compensation Fund program. We stand ready to assist you or provide further feedback as this program develops.
Sincerely,
Comments By
National Center for Victims of Crime
Washington, DC