W000730
November 19, 2001
Mr. Kenneth L. Zwick
Director
United States Department of Justice
Office of Management Programs - Civil Division
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, D.C. 20530
Dear Mr. Zwick:
I am writing on behalf of constituents of my district who have expressed concern with the
Victim Compensation Fund signed into law on September 22, 2001 as part of the Air
Transportation Safety and System Stabilization Act. Seven of the survivors of the more
than one hundred deceased who lived in my district have asked me to forward their
comments to you in response to the Notice of Inquiry and Advance Notice of Rulemaking
published on November 5, 2001. Copies of these comments are enclosed, and I have
summarized below what I believe are the three major areas of concern which they raise. If
these concerns are addressed, I believe participation in the fund will increase. I trust that
you will give these comments all due consideration while drafting the interim final
rules to be published by December 21, 2001.
One of the principal concerns my constituents have with the Victim Compensation
Program is the requirement that claimants waive their right to sue others before they are
advised of whether or not they will receive compensation under the Program or how
much. They find this troublesome because, typically, when one is asked to settle in lieu of
litigating, one has some expectation of the size of the settlement and the settlement
process to allow comparison with the benefits and difficulties of litigation. My
constituents feel, however, that they will be asked to choose between a gamble and a
gamble, and they do not have an incentive to choose the gamble that comes with no
appeal rights (the Victim Compensation Program). I note that there does not appear to be
any prohibition in the legislation to establishing the claimant's entitlement to a minimum
lump sum upon agreeing to waive the right to sue others. Perhaps it would encourage
participation in the Program, therefore, if the regulations include a provision entitling
claimants to a minimum lump sum upon filing a claim and establishing basic eligibility.
Another concern my constituents have with the Program is that all collateral source
amounts received or to be received by a claimant as a result of the attacks are to be
deducted from any amount of compensation awarded under the Program. They are
troubled by this because it is not entirely clear what will and will not be considered a
collateral source amount. If this rule is applied to charitable contributions, those
charitable contributions are in a sense cancelled for both the giver and the receiver. The
legislation certainly does not intend to deter charitable giving, it simply intends to protect
both critical industries and the victims of the attacks from lengthy litigation that would be
economically and psychologically debilitating. I believe that the American public
generally intends for the victims' families to benefit from their charitable generosity, and
perhaps participation in the Program would be encouraged if the regulations make it clear
that charitable contributions received by the survivors are not to be deducted.
Finally, careful reading of the legislation shows that it is also ambiguous who the
"claimant" is under the Program. Clearly, " claimant" includes a person injured in the
attacks who is filing on his or her own behalf. However, with respect to those who were
killed in the attacks, some sections of the legislation indicate that the "claimant" is the
individual who was killed (for example, sections which refer to claimants being "present
at" the attacks and claims being filed "on behalf of the deceased"), and other sections
indicate that the "claimant" is the survivor of the person who was killed (for example, the
provision under which awards are to be reduced "by the amount of the collateral source
compensation the claimant has received", since it is the survivor who receives collateral
source amounts). The question of who the claimant is has many implications. If the
claimant is the deceased, it seems that life insurance payable to the survivor should not be
deducted. If the claimant is the survivor, it seems that pain and suffering of the deceased
should not have to be demonstrated specifically. I think that questions about deducting
collateral source payments and also about non-economic losses of the claimant would be
reduced if the regulations clarify who the claimant is.
These, I believe, are three of the most fundamental concerns my constituents have raised
with this legislation and which, I believe, should be addressed in the regulations. I would
appreciate it if you would respond to me with respect to all of these concerns before the
interim final rules are published on December 21, 2001. In addition, as indicated by the
enclosed, my constituents have other concerns with the legislation. Some object to the
requirement that they waive their right to sue everyone, when it seems that the legislation
was only designed to protect the airlines. Some are deeply concerned about the lack of
appeal rights. Some object to the limitation that only one person is allowed to file a claim
with respect to a deceased person, when many suffer from the wrongful death of each
person. Therefore, I would also appreciate it if the Special Master would arrange for a
public hearing with respect to this legislation as soon as possible somewhere in the
Central New Jersey area, which was deeply affected by the attacks.
I thank you for your time and attention in reviewing these important questions, and I look forword to your
response. We all want regulations that will compensate fairly the victims of the September 11 attacks.
Comment by
Rush Holt, Twelfth District, New Jersey
Attachment 1:
Tuesday, November 13, 2001 2:31PM
Fw: VICTIMS COMPENSATION FUND COMMENTS
>Dear Mr. Zwik,
>
>I AM PROVIDING THE FOLLOWING COMMENTS FOR YOUR CONSIDERATION IN
REGARDS TO
>THE SEPT 11TH VICTIMS COMPENSATION FUND. FIRST AND FOREMOST, THE
LAST
THING
>THE VICTIMS FAMILIES (HEREIN REFERRED TO AS THE FAMILIES) NEED IS
PROTRACTED
>LITIGATION. ALACRITY IS ESSENTIAL. IT IS MY UNDERSTANDING THAT THE
FUND
>WILL BE STRUCTURED TO ENCOURAGE THE FAMILIES TO SURRENDER THEIR
RIGHTS TO
>SUE. THAT BEING SO, I RECOMMEND THE FOLLOWING GROUND RULES:
>
>1. ANY AWARD WILL NOT BE REDUCED FOR OTHER BENEFITS (E.G., INSURANCE,
>PENSION, AND DEATH BENEFITS). THE OTHER BENEFITS WERE PAID FOR
SEPARATELY
>AND SHOULD HAVE NO BEARING ON THE AWARD.
>
>2. THE FAMILIES RETAIN THE RIGHT TO APPEAL.
>
>3. IF THE APPEAL IS NOT AN OPTION, THEN THE FAMILIES WOULD CHOOSE
THEIR
>MEDIATOR FROM A LIST PROVIDED BY THE GOVERNMENT. THIS LIST WOULD
INCLUDE BACKGROUND INFORMATION ON THE MEDIATORS SO THAT THE
FAMILIES MAY
MAKE AN ENLIGHTENED CHOICE.
>
>4. THE FAMILIES SHOULD HAVE SOME FORMULA TO CALCULATE A MINIMUM,
ACCEPTABLE
>AWARD. THE FORMULA SHOULD CONSIDER LOST FUTURE EARNINGS, NUMBER
OF
>CHILDREN, STANDARD OF LIVING, ETC.
>
>5. ESTABLISH PARAMETERS TO CALCULATE PAIN AND SUFFERING AT THE
MEDIATION
>HEARING.
>
>6. IF THE MEDIATOR DOES NOT ADHERE TO THE ESTABLISHED PARAMETERS,
THE
>FAMILIES MAY APPEAL.
>
>7. THE AWARD MUST ENCOMPASS MORE THAN LOST FUTURE EARNINGS. IT
MUST
>CONSIDER EMOTIONAL SECURITY, FAMILY DEVELOPMENT, AND OTHER
NON-TANGIBLES.
>
>8. THE AWARD WOULD BE AN "AWARD" AND THEREFORE NONTAXABLE BY
FEDERAL,
>STATE, AND LOCAL GOVERNMENTS.
>
>THANK YOU FOR YOUR TIME AND CONSIDERATION.
>
>Individual Comment.
>
Attachment 2:
Tuesday, November 13, 2001 9:50PM
HELP HER PLEASE
As a relative of one of the victims of the September 11th terrorist
attacks, I trust that the regulations for the Victims Compensation Fund
("the Fund") can be fashioned in such a manner to bring equity and
closure this most awful chapter in American history. Towards that end,
the Fund must be structured to encourage victims' families to surrender
their rights to sue because they believe they will be treated fairly and
promptly. To send such a compelling message I respectfully submit that
the regulations must contain following elements:
1. Do not reduce the award from any collateral source funds collected
including insurance, pension benefits, death benefits, and governmental
payments (which we understand are being considered as offsets). Such
offsets should be disallowed for, among other reasons, the same reason
the IRS exempts life insurance proceeds from taxation (i.e., to
encourage citizens to plan for their heirs). Such offsets would
penalize those victims who sacrificed and saved for their families'
futures and unjustly transfer these assets, thereby representing a
lifetime of work, to insurance companies and other corporate entities
that may share the blame for the consequences that resulted from the
tragic events of 9/11. In a nutshell these assets have nothing to
do with the damages that flowed from 9/11, and therefore there should be
no offsets to damages based on the net worth of the victims' families.
It would also result in awarding more in damages to those who did not
sacrifice and save for their families' futures, which would be an
inequitable result.
2. Provide the victims' families with the right to appeal the award, as
doing so would undoubtedly increase participation in the Fund.
3. Should the Department of Justice decline to offer victims' families
the right to appeal, then at a minimum they should have input regarding
the selection of the mediator who would decide the award. The
government should provide a list of potential mediators with their
background (e.g., educational, work experience, prior award history,
etc.), which would allow victims' families to make an informed choice.
4. There should be set parameters for calculating damages (i.e.,
mathematical formula factoring lost future earnings, pension benefits,
number of children, and other pecuniary benefits that would have been
earned talking into consideration life expectancy tables), that would
provide a floor for calculating damages and provide assurance to
victims' families as to what they could expect to receive, at a minimum,
if they elected to opt into the Fund. I believe this has been referred
to in the press as the development of a "grid". In short, the victims' families should be able to calculate, with some certainty, the minimum
amount of money they could expect to be awarded prior to participating
in the hearing. That should serve as a powerful inducement to opt into
the Fund.
5. Determine pain and suffering at the hearing.
6. If the mediator deviates from the guidelines the victims' families
should be able to appeal the decision.
7. The regulations should include a scheme that would afford the
victims' families one that is similar to the one they would enjoy in a
wrongful death case. The amount awarded as damages should include all
funeral, burial, and estate administration expenses incurred.
Importantly, the amount should compensate the victims' family for
contributions they would have received between the time of his death and
the end of this life expectancy, such as future lost wages. His gross
earnings, including all fringe benefits between the date of his death
and his life expectancy, must be factored in. Additionally, all monies
the victim would have spent for or given to his family for such items as
shelter, food, clothing, medical car, education, entertainment, gifts
and recreation, taking into account his salary and age, must also be
considered. The amount awarded should also consider the comfort and
friendship that he would have given to his family had he lived and such
other elements as work around the home and provision of society and
comfort.
8. Since the amount awarded would be intended to restore the victim's
family's loss, it should not be considered as "income." Therefore, it
should not be taxable by the federal or state taxing authorities.
In closing, I understand the DOJ is suggesting that the victims'
families surrender their right to sue without advising them what they
can anticipate by way of award and without the ability to appeal such
award. This is, to be kind, unacceptable. The above suggestions would
encourage attorneys and families alike to opt into the Fund, thereby
forgoing their right to sue. This would bring closure to an American
Tragedy and reassure victims' families that our government has their
best interests at heart. We only want to place them in the financial
position they would have been in had their loved ones not been taken
away in the worst terrorist attacks in American history which may have
been avoided. But that is another story. Only you can help. Thank
you.
Individual comment
my sister lost her husband in WTC
Attachment 3:
Tuesday, November 13, 2001 7:21PM
September 11
My brother was killed on September 11th. He was one of the unlucky employees of .
I am writing because I'm horrified by the way Congress has handled this situation so far. I can
only imagine if a member of Congress lost a family member that day, how different the outcome
would be. You have no idea the pain and suffering that is torturing my family. How can the
government say that there is only one person who represent each family? My parents lost their only
son. My sister and I lost our only brother. My sister-in-law is left to raise her three children by
herself. A 9 year old boy, 7 year old girl and a 3 year old boy.
What is this about "double dipping"? The government is afraid families are going to get "rich"
from this tragic event. I invite any member of congress to go live with my sister-in-law and her
three children for one week, live with her heart ache, live with their despair. There is not enough
money in the world to help heal my family. But since there is no other way for the families to seek
justice, except by filing lawsuits, that is what we, as Americans, should have the right to do.
I thought the government was here to protect us. Instead you hire airport employees who have
criminal records to "protect us". Where was the Homeland Security during all of this?
On top of all our pain and suffering, this should be the last thing my family, along with (5000
other families) should have to deal with. I hope in the end the government does what is right.
Thank you,
Individual comment
Attachment 4:
Honorable Rush Holt
Princeton Junction, NJ
RE: WORLD TRADE CENTER VICTIMS
FEDERAL COMPENSATION PROGRAM
Dear Congressman Holt:
My husband, ,was a 52 year old employee of
for 20 years, and is one of the many Employees who is missing at the
World Trade Center. Unfortunately, he was on the 101th Floor at the time of the terrorist
attack. To say that my two children and I are devastated and are feeling a great loss is to
grossly understate our feelings. He was a wonderful husband and a very involved father,
and will be greatly missed.
As a result of this horrible tragedy, my family is now in a state of great
uncertainty. We have not only lost our husband/father but the sole supporter of our
household. I am in the midst of seeking financial relief and have tried to keep abreast of
all developments relating to governmental programs currently being discussed. The
Federal Compensation Program has been one option that I am eagerly awaiting the
details. However, there have been some rumors that have not only upset me but have
made me feel like my husband has become a victim a second time. I have heard that
Congress is working on a formula in order to figure out the compensation a family will
get under this Federal Compensation Program. It is my understanding that a victim's
annual compensation and age on September 11th will be determining factors in that
formula. It is also my understanding that in that formula the amount of years that one is
expected to work is also a critical factor. Lastly, it has been suggested to me that
Congress is contemplating using the age of 55 years or 60 years as the baseline for one to
retire, and, therefore, compensation would not be figured for any years past that. I am of
the further understanding that the expected workable years will also vary according to the
industry (in our case, that being the brokerage industry). To say that the above factors, in
my opinion, are grossly unfair and lacking in justice, once again, understate my feelings.
I'd like to point out that while my husband did work in the brokerage industry, he
remained with one company for 20 years. Notwithstanding that fact that there is a large
amount of movement within the industry, my husband clearly was an exception.
Furthermore, this would indicate that he would have continued to work in this capacity,
in the brokerage industry, until he was at least 65 years old. To make a broad
generalization that people in the brokerage industry do not remain in the industry (or with
a firm) on a long-term basis would result in a gross injustice and prejudice against those
who do not fit the presumed profile. Such a presumption is wrong.
My husband was a healthy 52 year old man, who had every intention of working
until he was at least 65 years old. Retirement before 65 was simply not an option for him
since financially we were not prepared. All savings toward retirement were made by my
husband's contributions into a 401k. Additionally, the market has been such that my
husband lost a great deal of the money he had put into the 401k Plan. For these reasons,
we could not have afforded retirement and, therefore, he would have worked until 65
years old or older.
I am certain that I am not the only one in this situation. Therefore, since you
are my Congressman, I ask that you truly represent my family (and, most
importantly, my deceased husband) when Congress puts together the final details
for the Federal Compensation Program. It is not my desire to take the litigation
route, especially since my family is not in a position to wait for the Courts. I have
two kids that need to be taken care of and without a fair compensation program I
will be unable to adequately provide for them. Since my husband was 52 years old,
he had at least another 13 years that he would have had to work. My husband's life
was cut short by terrorists. Please do not make him a victim again by cutting short
the years that he planned to work. He would never have considered retirement
before the age of 65 and I am simply asking that Congress take our situation into
consideration when they fine-tune the formula in which they use in determining the
compensation that the victim's families receive. It is the only fair and just way to
treat this unfortunate matter. Please do not allow Congress to Victimize us again by
not providing us with the support that my husband had planned to provide.
I would appreciate your response to the above as soon as possible. I am having a
difficult enough time dealing with the loss of my husband, and, in addition, having to
deal with the financial problems that I am now faced with is way too much to bear. I ask
you to please represent my family in a fair and just manner. Thanking you in advance for
your prompt attention.
Very truly yours,
Individual comment
Attachment 5:
Thursday, November 08, 2001 11:27AM
Re: September 11th Victims Compensation Fund
I lost my son, age 39, in the World Trade Center attack
on Sept. 11, 2001. The grieving and the devastating loss of my son will
remain with me for the rest of my life.
Through my tears, I will try to express my opinion regarding the
Compensation Fund.
1. Eligibility To Make a Claim
Don't parents count? According to the regulation, if my
daughter-in-law, (whom I am very close to), decides to go with the Fund,
I am totally excluded from receiving any monetary damages. It should be
specified that other family members (parents) should also be part of the
award. Their award should not be deducted from the spouses. As the law
stands now, I also cannot sue or file a lawsuit against the terrorists,
terrorist organization or countries that support terrorism, nor can I
sue any company for negligence. I am totally excluded as if my
heartache does not matter.
The regulation should clearly state that surviving family members
have their own, derivative claims. 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. Again, don't I count?
2. Nature & Amounts of Awards
The victims should have the option of accepting the award or being
able to sue on their own. They should not have to sign away their right
to sue before they know what the award will be.
The victims should also be allowed to sue the assets of the
Terrorist funds whether they receive an award from the Fund or not.
The Act could not have been intended to protect the financial interest
of terrorist or terrorist organizations.
Collateral benefits should not include payments from charities.
The regulations should create a procedure by which there can be an
administrative appeal of the award.
I certainly you can help me to have a voice in this matter.
Thank you,
Individual comment
Princeton, NJ
Attachment 6:
Mr. Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington., D.C. 20530
RE: CIV 104P; AG Order No. RIN: 1105-AA79
September 11th Victim Compensation Fund of 2001
Dear Mr Zwick:
I am a September 11th widow. As someone who is experiencing first-hand the bureaucratic
nightmare generated by variants in private and public aid institutions, I implore you to
consider this - that the Victims Compensation Fund as currently written alludes to a series of
economic and non-economic "criteria" (undefined). While commenting on what is not
known is difficult at best, I offer these concerns:
. Collateral subtracted from compensation punishes those families of victims who paid
for policies and benefits and Federal programs out of their salaries, who lived within
their means and saved and whose surviving family members have already struggled to
receive help from any array of charity funds whose donations were intended by the
American people to be distributed to those families regardless of circumstance.
. There is no consideration of the amount of income contribution or benefits (such as
health insurance) that have been lost.
. The relative pain and suffering of the victims cannot and should not be quantified in
these circumstances; to attempt to do so is wildly inappropriate.
. The administrative cost of information gathering, verification, documentation, and
evaluation required to implement this process would proportionately reduce the funds
available to the families and put them (yet again) through unnecessary bureaucracy.
. The requirement to accept the offer in lieu of pursuing a lawsuit prior to knowing the
dollar amount of the payment is egregious and unfair.
. The possibility of subjective evaluations raises the potential of inequity and places
the burden of proof on those seeking some sort of help.
For all these reasons, I urge you to abandon the arbitrary set of criteria set forth in the rules
and regulations and simply divide the total into equal cash payments to every applicant.
Otherwise, I believe that this Act will spawn the hundreds, perhaps thousands of lawsuits it
seeks to avoid.
Sincerely,
Individual comment
Attachment 7:
Thursday, November 08, 2001 2:39PM
Subject: Comments
My husband of almost 16 years was killed on the 105th floor in the WTC North
Tower. He was an employee of . I have several comments
about what I have Read about the 9/11 settlement fund.
1. If I am not mistaken, this law was set up to protect the airlines from
going under. Why should the U.S. Government care if I sue the Taliban, or
anyone else who has nothing to do with the airlines even if I sign on to
the settlement?
2. I believe that a set minimum amount of money should be received by the
family of each victim who lost their life on 9/11. This set amount, which
would be revealed to us in advance, would enable me to evaluate whether or
not it makes economic sense for me to sign on to this settlement. On top of
the set minimum, all other factors should be considered such as: economic
earnings potential of the victim, pain and suffering, loss of companionship
etc. From this amount, subtractions would be made.
3. Will Social Security benefits and/or Worker's Compensation be subtracted
from the settlement amount? I do not believe these monies should be
subtracted.
4. Is the settlement amount taxable?
5. I do not agree that life insurance should be subtracted from the
settlement amount. Will my premiums be reimbursed if life insurance is
subtracted?
6. Will charitable contributions be subtracted?
Individual Comment
East Brunswick, NJ