W000751

November 26, 2001

Hon. Phillip J. Perry
Acting Associate Attorney General
U.S. Department of Justice
Tenth Street and Constitution Avenue, N.W.
Washington, D.C. 20530

Dear Acting Associate Attorney General Perry:

We are writing to set forth the comments of the State of New York and the City of New York in response to the November 5, 2001 Notice of Inquiry and Advance Notice of Rulemaking on the victim compensation program authorized by the Air Transportation Safety and System Stablization Act ("ATSSSA"). Prior to the issuance of the Notice of Inquiry, the State and City had submitted joint recommendations on several critical issues under ATSSSA (the "November 1, 2001 Submission"). This letter supplements that submission (a copy of which is enclosed), and addresses each of the six topics on which the Department of Justice has requested comment.

Topics #1 and #2: Claim Forms and Information

The Notice of Inquiry states that ATSSSA appears to contemplate a "detailed form and filing, including the submission by the claimant of supporting documents and relevant medical records." In particular, the Department of Justice has requested comments on: (1) "whether the Special Master should determine that a claim has not been 'filed' ... [where] there is insufficient information submitted to permit a reasonably informed determination to be made", and (2) "whether there are actions the Special Master should be required to take before he or she can accept a claim, or deem a claim 'filed'".

As a general principle, we urge the Department of Justice to adopt forms and procedures which help the victims and their families understand and comply with the claim process, and which provide sufficient flexibility so that claimants have an opportunity to describe their losses accurately and fully. In particular, there should be no requirements for the initial filing to include all supporting documentation and medical records.

The Department of Justice undoubtedly recognizes that many victims are overwhelmed by the trauma of the attacks and already are dealing with a tremendous amount of paperwork required by employers, insurance companies, government agencies, charities and others. As a result, the initial claim form under ATSSSA should be easy to complete and should be subject to liberal rules on submission of additional information. If the Special Master determines there is insufficient information to permit a reasonably informed determination, the regulations should authorize the Special Master -- with a claimant's consent - to determine that the claim has not been "filed," thereby tolling the commencement of the 120-day decision period.

Topic #3: Procedures for Hearing and the Presentation of Evidence

Similarly, the Department of Justice should follow victim-friendly procedures with respect to the hearing and the presentation of evidence. For example, the regulations should provide that:

* claimants should be able to consent to temporarily halt or toll the running of the clock for determination of a claim;

* claimants should be given the option to waive their right to a hearing and instead rely exclusively upon a written record, but first should be advised in writing that the hearing is their only opportunity to explain the nature and extent of their damages in person to the hearing officer.

* claimants should have the opportunity to appeal directly to the Special Master with respect to rulings or working decisions of the hearing officer, as is permitted in the victim compensation procedures of the New York State Crime Victims Board (See New York Executive Law §628);

* the Special Master should be authorized to enforce requests to third parties for evidence necessary to processing the claim; and

* proceedings should be recorded, and held in a location convenient to the claimant.

Topic #4: Procedures to Assist Individuals in Filing and Pursuing claims

Although many victims and families of victims of the September 11th attacks will be represented by counsel in the ATSSSA process, others will be pursuing claims on their own. Many of these individuals are suffering from the great burdens imposed by the attacks, including the loss of a family member, physical injuries, emotional trauma and unemployment. In addition, some individuals have limited proficiency in English, or may be completely unfamiliar with this type of claims process.

As a result, we believe it essential that the Special Master implement procedures to provide assistance to individuals who are filing claims, including the following measures:

* the Special Master should have offices, at a minimum, in the three crash locations and in the origin and destination cities of the four flights;

* the Special Master should provide toll-free phone lines staffed with trained personnel, outreach meetings, newsletters, and translators;

* all forms and instructions should be printed in multiple languages;

* the Special Master should set limits on fees that can be charged by legal counsel, accountants and other experts retained by claimants to assist them in filing claims for compensation (see, e.g., 42 U.S.C. § 406 (Commissioner of Social Security determines fees awarded to attorneys representing individuals seeking social security befits); N.Y. Workers Comp. Law § 24 (Workers Compensation Board must approve attorneys' fees); 9 NYCRR §525.7 (New York State Crime Victims Board approves attorneys' fees to be deducted from awards)); and

* a claimant who was both physically injured and is the personal representative of a deceased victim may file two separate claims, and should not be forced to combine both sets of damages into a single claim.

Topic #5: Claimant Eligibility

Our prior comments included an extensive discussion on the issue of claimant eligibility, including the definition of the critical terms such as "present at," "physical harm," "immediate aftermath," and "personal representative" (see November 1, 2001 Submission, pages 2-4), and we will not repeat that discussion here. Two other issues of great importance are the treatment of domestic partners, and the duties of claimants with respect to other individuals entitled to compensation.

a. Domestic partners

The plight of domestic partners and other family members who may lack formal legal recognition, but who nonetheless suffered losses as a result of the death of a loved one during the September 11th terrorist attacks, is of particular importance. Some of these individuals are unmarried life partners or other family members who were dependent on the deceased; other are nonbiological children who may not have been formally adopted. The lack of formal legal recognition does not mitigate the shattering impact of the death of a beloved companion, parent, or guardian.

ATSSSA reflects the intent of the President and Congress to compensate not just those killed or injured as a result of the September 11th attacks, nor just spouses or children, but the much more general category of "families" of the victims. Indeed, the legislative history of ATSSSA is replete with references by members of the Senate and the House that their intent was to compensate the "families" of the victims. See, e.g., 147 Cong. Rec. S9589 (September 21, 2001)(statement of Sen. Bond); id. S9592 (Sen. Rockefeller); id. at S9594 (Sen. McCain); id. at S9599 (Sen. Leahy); id. at H5913 (Rep. Delahunt). Indeed, the thousands of victims of the September 11th tragedy include many individuals who were in long-term domestic partnerships, some of whom engaged in acts of great heroism as they tried to save the lives of others that day. Certainly Congress did not intend that those dependent upon heroes should be denied compensation under the fund.

This is consistent with other compensation programs, such as New York State's emergency relief program, which provides compensation to all persons who were dependent upon a victim of the World Trade Center attack, including spouses, children and persons in a relationship of unilateral dependence or mutual interdependence. Indeed, less than a month after the attacks, Governor Pataki issued an Executive Order to authorize crime victim awards for all persons who can show such a relationship with victims of the September 11th attacks, looking at an array of factors, including but not limited to "common ownership of property, common house holding, shared budgeting and the length of the relationship between such person and the victim." Exec. Order 113.30. New York City also recognized these relationships, and permits domestic partners to file applications for death certificates. See 24 R.C.N.Y. §205.01(d)(1); see also 26 U.S.C. §2203 (definition of "executor" under federal estate tax law includes "any person in actual or constructive possession of property of the decedent")

Similarly, compensation afforded by ATSSSA to the families of the victims "should find its foundation in the reality life." Braschi v. Stahl Associates Company, 74 N.Y.2d 201, 211, 543 N.E.2d 49, 53, 544 N.Y.S.2d 784, 789 (1989)(protecting from eviction under New York City housing regulations family members living with a tenant including life partners). In particular, the Department of Justice and Special Master should adopt regulations that provide all grieving family members with a full opportunity to seek compensation for their losses. The determination of whether an individual qualifies for compensation should be based on the totality of the circumstances, looking at the exclusivity and longevity of the relationship, common living arrangements, the emotional and financial commitment, and other similar factors.

b. Obligations of claimants

ATSSSA authorizes the filing of a single claim per victim, but recognizes that more than one family member may have incurred losses as a result of the victim's death or injury. §405(c)(3)(A). Moreover, the filing of a claim and the obtaining of compensation pursuant to this federal victim compensation program will preclude the filing of the most litigation for compensation as result of the terrorist attacks, §405(c)(3)(B). As a result, any injured claimant, as well as any personal representative who files a claim on behalf of a deceased victim, must represent the interests of all those who incurred losses as a result of the death or injury.

Thus, each claimant should be required to provide notice of all survivors of those killed or injured in the crashes, including those dependent upon the decedent, and to request written waivers of the right to commence litigation. This notice should be provided well in advance of the last date for the filing of the claim. Similarly, the Department of Justice regulations should ensure that the claimant acts as a fiduciary in offering evidence of the economic and noneconomic losses of all survivors and, once the compensation is awarded, distributes it to those survivors entitled to the compensation.

However, the Special Master should be empowered to accept and adjudicate claims even if, for example, the personal representative has not obtained a signed waiver of the right to litigation from all individuals who consider themselves to be survivors of the decedent. In cases of multiple survivors with differing degrees of financial dependence, some family members may wish to avail themselves of the victim compensation program, while others may desire litigation. Requiring waivers from all of a deceased's survivors essentially would grant a single survivor "veto" power over the ability of the others to receive compensation from the fund, and force all to litigate.

Instead, the personal representative who files a claim on behalf of a decedent should provide notice to all other survivors of the decedent, and should certify to the Special Master that such notice has been given. If the other survivors sign waivers or otherwise do not object to the filing of the claim, then the Special Master should adjudicate the claim. If another survivor claims to be the personal representative and objects to the filing of the claim, however, then the Special Master can determine which individual qualifies as the personal representative, or can require that the parties seek a state court adjudication of that issue. Once the personal representative have been determined, the Special Master should adjudicate the claim even if other survivors object, and the determination of the claim will terminate the other survivors' right to commence litigation on behalf of the decedent.

The Special Master cannot, of course, eliminate any litigation rights that are not part of the claim submitted through the victim compensation program. For example, if a member of the decedent's immediate family who is not the personal representative seeks damages resulting from having personally witnessed the decedent perish in the crash (see Bovsum v. Samperi, 61 N.Y.2d 219 (1984)), that individual should be able to commence separate litigation to recover those personal damages.

Topic #6: Nature and Amount of Compensation

Our prior submission covered the issues of "economic losses", "non-economic losses" and "collateral source" (see November 1, 2001 Submission, pages 4-8), and once again we will not repeat those comments here. However, we do wish to respond to the Department of Justice's request for comments on "whether and how schedules or statistical methodologies should be developed and used in reaching a determination for each claimant," and whether the Special Master should be publish "schedules or hypothetical or presumptive awards for classes of individuals".

As the Department of Justice recognized in its Notice of Inquiry, the award determinations must be made relatively expeditiously and fairly. These decisions also need to reflect the personal experiences and losses of particular victims and their families. While schedules or presumptive awards for classes of individuals may promote efficiency, their application violates the spirit and the letter of the Act.

ATSSSA provides that each claimant has "the right to present evidence, including the presentation of witnesses and documents," §405(b)(C), and that the amount of compensation should reflect "the individual circumstances of the claim." §405(b)(ii). Schedules of presumptive awards may discourage victims from describing their individual losses and seeking appropriate compensation. The Special Master therefore should not promulgate regulations that purport to offer definitive assessments of economic losses that operate to preclude claimants from offering evidence on this issue. The regulations also should not determine the amount of noneconomic losses for classes of similarly situated individuals; rather all claimants should be permitted to describe their personal noneconomics losses.

Thank you for considering our views on these issues.

Sincerely,

James McGuire		David Nocenti		Dennison Young, Jr.
Counsel to		Counsel to		Counsel to
Governor George Pataki Giuliani		Attorney General Eliot Spitzer		Mayor Rudolph

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