W000774
November 20, 2001
Mr. Kenneth L. Zwick, Director
Office of Management Programs
U.S. Department of Justice
Civil Division
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Dear Mr. Zwick:
The Justice Department has requested comments with respect to the implementation of regulations regarding the "September 11th Victim Compensation Fund of 2001." ("The Fund"). Unless otherwise noted, the comments that follow
have not been adopted as the policy of the American Bar Association or any of its
entities and should be considered solely as observations which the Attorney General
of the United States, the Department of Justice and the Special Master may wish to
consider in the drafting and implementing of regulations. However, the remarks do
reflect input from the ABA's Sections of Dispute Resolution, Litigation, and Tort
and Insurance Practice, each of which contributed significantly to the development
of the concepts contained in this document.
It should be a goal of the regulations required pursuant to the September 11th Compensation Act of 2001, to establish a compensation program that is simple, fair, predictable, cooperative with other compensation efforts and expeditious. Public confidence in the fairness and equity of the Fund program is essential to its success. While the Special Master must be empowered to make judgements about
many variables impacting individual claims, the process must be viewed as one
providing the citizens a certainty of recovery and reasonable awards consistent with
the evidence that will be unique to each claimant.
With the above guiding principles in mind, we submit the following remarks regarding the matters on which comment was solicited.
I. GENERAL ISSUE OF ADMINISTRATION.
A. "Interim Final" Rules by December 21, 2001
In order to ensure effective administration of the Fund, promote fairness and assure that victims are provided reliable information about their rights, the effective date of final and binding regulations should be December 21, 2001. Without the regulations being final on December 21, 2001, a claimant will not be in a position to definitively assess the efficacy of filing a claim on the date the Fund program is scheduled to begin. This would fall afoul of one of the goals of the Act, the
resolution of claims in a reliable, expeditious manner. Additionally, not having a set
of final regulations in place by December 21, 2001, will lead to confusion and may
undermine public confidence in the Fund program. However, it is not necessary that
all regulations be finalized by that time. Rather, regulations critical to
commencement of operations should be fixed by December 21, 2001, and should be
followed by such supplemental regulations as are found necessary.
B. Good Cause Under 5 U.S.C. § 533 (d)
Based on the delay that will take place if regulations are not in place by December 21, 2001, there is good cause under 5 U.S.C. 533(d) to waive the requirement that rules not go into effect for at least 30 days after promulgation absent good cause. Not having regulations in place in a timely fashion will lead to serious delay in claimant decision making regarding whether to seek compensation under the Fund and will ultimately delay payouts.
C. Scope of "Interim Final" regulations
The Department should complete a final version of the core regulations contemplated by § 407(1)-(4) by the statutorily stipulated date. It should, however, view such supplemental materials as are needed to improve the working of the
process as fitting subjects for later promulgated regulations.
D. Effect of Dismissal of a Lawsuit and Ineligible Claimants
Comments were also solicited on whether a claimant who has a currently pending civil case and withdraws from such action by 90 days after the date the initial rules are promulgated is precluded from re-filing the action if: (a) the claimant ultimately elects not to file a compensation claim under the federal program; or (b) the claimant is determined by the Special Master not to be eligible. Electing not to
file a claim should not be preclude any person from re-filing a lawsuit. Under the Act,
the right to file a lawsuit is only waived if a claim is actually submitted. If a person
is determined not to be eligible, his/her filing of a claim should not waive the right
to file a lawsuit, as the Act applies only to individuals eligible to recover.
II. THE FORMS TO BE USED IN SUBMITTING CLAIMS AND THE
INFORMATION TO BE INCLUDED ON THE CLAIM FORMS.
A. Breadth of Claim Form
The claim filing process should be simple and easy. The goal of the filing process should be to secure sufficient incident information (precise location of the victim, documentation of injuries, proof of earnings history, proof of medical expenses, income tax returns, collateral source payments or contracts, etc.) to allow for determination of the total net award under the Program.
1. The Standard Claim Form should: (a) be printed in English but contain a statement that the Claim Form is available in all necessary other languages upon request; (b) prominently state that any individual filing a claim under the Act waives all rights to file a civil action; (c) state that the claimant need not be a U.S. citizen or resident; (d) state the eligibility requirements for being a claimant; (e)
advise the claimant of his/her section 405 (b)(4) rights and recommend that the
claimant seek counsel because the claimant will be waiving certain rights by
participation in the Program such as the right to file a civil action and the right to
judicial review; (f) list the items of damages recoverable and explain generally what
the various items of economic and non-economic loss are; (g) indicate that the
decision of the Special Master is final and not subject to judicial review; (h) state the
penalties for filing a fraudulent claim; (i) state: "A submitted claim containing
complete information as requested in this Claim Form (including all available
supporting documentation) shall be considered properly filed. Only properly filed
Claim Forms may be eligible for relief from the Fund"; (j) state: "A claim may be
amended at any time prior to the close of the claimant's hearing. A claimant may
amend his or her claim by changing the amount of compensation sought, elements
of damages, or by supplementing his or her claim with the submission of additional
supporting evidence; (k) specify the time limits involved in the claims process; (l)
explain the review process.
2. The Standard Claim Form should request copies of the following documents: (a) birth certificates (claimant, decedent, and dependents); (b) marriage certificate (claimant, decedent); (c) death certificate (decedent); (d) passport, visa or green card or other appropriate identification (claimant, decedent); (e) federal income tax return or W-2 for years 1999, 2000 and 2001 (claimant or decedent); (f) claimant's or decedent's proof of physical harm or death; (g) verified written statement of how the claimant or decedent sustained injury or death as a result of the events of September 11 (the statement shall include where claimant or decedent was physically located at the time of injury or death, and a description of the injuries sustained, if known) and proof of physical presence; (h) financial records (claimant or decedent); (i) informational details of life insurance policies (decedent), disability documents, workers' compensation benefits, social security payments, pension documents, death benefit programs and medical insurance policies; and (j) any other documents or statements that the claimant believes support his or her claim.
For good cause shown, Fund officials can waive production of any of these materials.
The claimant shall have the right to subpoena documentation to comply with these requirements.
The Form should be signed under oath by the claimant or the personal representative.
B. When a Claim is "Filed"
Due to stringent time requirements in the Act, the Claim Form should not be deemed "filed" until a determination has been made that the necessary documentation has been received. An Intake Office could be created to conduct an
initial review and determine that: (1) the Standard Claim Form and supporting
documents have been received and are in order; (2) the person submitting the claim
is an eligible claimant or personal representative of a claimant and meets all other
eligibility criteria; (3) the claimant suffered physical harm or death as a direct and
proximate cause of the terrorist-related aircraft crashes of September 11, 2001; and
(4) the claimant was physically present within the designated area during the
designated period of time. The Intake Office should timely certify the claimant's
eligibility or provide the claimant with notice of deficiency and an opportunity to
correct deficiencies.
1. Missing Documentation - Effect on Date of Filing Claim
To the extent claims substantially fail to comply with the filing requirements, they should be returned unprocessed within a specified period of time with a statement of the reasons why the claim is deficient. The claimant or claimant's personal representative should be allowed until the expiration of the applicable
statute of limitations contained within the Act to correct any deficiencies. A claim
would be deemed "filed," for purposes of the running of the 120-day time period,
after any and all deficiencies are corrected. However, for purposes of the applicable
statute of limitations contained within the Act, the claim will be deemed filed on the
date of the initial submission to the Office of the Special Master.
C. Adequacy of Documentation
It is recommended that documentation requirements for date of birth, proof of physical presence, proof of physical harm of death, proof of collateral sources, and proof of other economic or noneconomic losses be patterned after those found in 28 C.F.R. §79.51 (regulations implementing the Radiation Exposure Compensation Act of 1990).
With respect to the authenticity and reliability of documents, the requirement for originals, and execution of release of records, it is recommended that the regulations track those found in 28 C.F.R. §79.5 (regulations implementing the Radiation Exposure Compensation Act of 1990).
The claimant or personal representative should bear the burden of providing all written medical documentation, contemporaneous records and other records or documents necessary to establish any and all criteria for compensation. Written
records that exist independent of any claim filed should be afforded greater weight
than affidavits and declarations created for the purpose of verifying a claim. (See 28
C.F.R. §79.4 (regulations implementing the Radiation Exposure Compensation Act
of 1990).
A determination should be made as to the accuracy of the supporting documents and information submitted with each claim. Since the overall process is intended to be non-adversarial, it is recommended that a verification procedure be adopted. This goal can be facilitated by a verification procedure similar to that which
was utilized in the administration of the National Vaccine Injury Compensation
Program (42 U.S.C. §300aa-1 et seq.). This procedure should be used to review
questionable evidence referred by the Intake Officer to certify its accuracy and
sufficiency. This procedure should expedite the claims resolution process and allow
the Hearing Officer to process a greater number of claims with minimal procedural
delays.
III. PROCEDURES FOR HEARING AND THE PRESENTATION OF EVIDENCE.
A. Procedures to be Used in Taking and Evaluating Evidence
The Department has requested comments on the procedures to be used in taking and evaluating evidence. Keeping in mind the 120-day time limit under the statute, the following preliminary matters are suggested: (1) the claimant may extend said time or may waive the right to a hearing by making a written request to the
Hearing Officer- - any such request must be signed by the claimant and; (2) the 120-
day period for review and determination of a claim shall commence upon the date
that the claim is deemed filed.
The procedures for hearing should (1) provide for a fast-track, non-adversarial, expeditious proceeding for the resolution of claims; (2) include flexible standards of admissibility of evidence; (3) include the opportunity for claimants to submit arguments and evidence on the record without requiring routine use of lengthy oral examinations or hearings; (4) provide appropriate, limited discovery mechanisms
for use by claimants; (5) provide options for mediation and/or more extensive
evidentiary hearings as a second track process upon waiver of the 120-day time limit;
(6) provide a decision on the record after an opportunity for fast-track hearing, or a
decision following a mediation or more extensive evidentiary hearing, or a decision
on final determination of the Special Master, as requested by the claimant, and (7)
provide for a process outlining the timing and availability of oral argument with
regard to appeals before the Special Master.
B. Improperly Filed Claim or Lack of Adequate Supporting Information
The Department has invited comments on whether the Special Master should be permitted to dismiss a claim as not properly filed for lack of adequate supporting information, and, if so whether an individual should thereafter be permitted to refile the claim. A claim which is not properly filed for lack of adequate supporting information should not be dismissed. Instead, claims that fail to comply with the
requirements of the Act should be returned unprocessed to the claimant or the
claimant's personal representative with a statement of reasons why the claim does not
comply with the regulations. The claimant or claimant's personal representative
should then be given the opportunity to correct the deficiencies and return the claim
for filing. A claim should be deemed filed after any and all deficiencies are
corrected. However, for purposes of the applicable statute of limitations, the claim
will be deemed filed on the date of the initial submission to the Office of the Special
Master. Support for such a procedure can be found in a similar provision under 28
C.F.R. §79.51. In conjunction with this recommendation, an Intake Office should
be established to receive all claims submitted, provide forms for claimants' questions,
and review the completeness of the forms and the sufficiency of the documents
submitted. After a claim is received, the intake Office should certify each claimant's
eligibility and entitlement to compensation or, in the case of deficient claims, provide
the claimant with notice and an opportunity to correct the deficiencies.
Additionally, to assure that claims are legitimate, a verification procedure should be
established to make a determination as to the accuracy of the supporting documents
and the information submitted with each claim. The verification procedure must
establish and follow a review process that includes written, precise, and uniform
instructions for determining the accuracy of claims.
C. Hearings
The Department has also requested comments on whether every claimant should be granted an oral hearing or whether paper hearings may be sufficient and has further requested comments on what types of oral hearings may be practicable,
consistent with the statutory deadlines. On this topic, we propose a two-tiered
approach which utilizes both an initial, expedited hearing and a more extensive
evidentiary/fact-finding hearing (with an option for mediation) and determination
review by the Special Master. This two-tiered approach is based upon the review
process contained in 28 C.F.R. §79.52-79.54. This two-tiered approach is discussed
below:
1. Initial Decision after expedited hearing.
Following the date when a claim has been accepted for filling, a Hearing Officer shall review the claim, allow the claimant an opportunity for an
expedited hearing and issue a written Initial Decision on the record. If deficiencies
have not been corrected within the period allotted, the Office of the Special Master
shall issue a decision denying the claim, and (a) any decision denying a claim shall
set forth the reasons for denial; (b) any decision granting a claim shall set forth the
reasons for granting relief and the amount of compensation due, after subtracting
amounts received from collateral sources; and (c) all decisions of a Hearing Officer,
whether granting or denying relief, shall indicate that the claimant or personal
representative may elect to seek mediation and/or a more extensive de novo second-
track full evidentiary hearing before a different Hearing Officer, or a direct appeal for
determination to the Special Master. If a claimant or personal representative fails to
file an election for further review with the Office of the Special Master, such person
will be deemed to have filed an election to accept the judgement of the Hearing
Officer as then sent to the Special Master for final determination. The Special
Master shall then consider the claim and if he/she deems appropriate, enter a final
determination which is not subject to judicial review.
2. Evidentiary Hearing.
Upon waiver of the 120 day requirement, any claimant may elect a de novo second-track, more extensive evidentiary hearing conducted in the presence of a Hearing Officer. Claimants or personal representatives shall have the opportunity to present the evidence submitted for the Initial Decision as well as any other relevant evidence, and shall have the opportunity to present and examine witnesses. The
Hearing Officer shall not be bound by formal rules of evidence or procedure. The
hearing shall be conducted in a non-adversarial manner.
The Hearing Officer who presides over the more extensive evidentiary hearing shall issue a written decision granting or denying the claim. The decision shall set forth the reasons for granting or denying relief. Where relief is
granted, the Hearing Officer shall set forth his/her recommendation for the amount
of compensation due, after subtracting amounts received from specifically identified
collateral sources. Any decision denying or granting a claim must indicate that the
decision will be reviewed by the Special Master. The Hearing Officer will forward
his or her recommendation to the Special Master. The Special Master shall then
review the recommendation of the Hearing Officer and enter a final determination
which is not subject to judicial review.
3. Mediation
The ABA has a long-standing policy in support of the use of Alternative Dispute Resolution techniques. Accordingly, as a possible alternative to
the second-track more extensive hearing process, the Special Master may wish to
permit, but shall not be required to do so, the use of mediation. If permitted, the
Special Master should have discretion to select the form of mediation most suitable
to the class of claims determined fit for mediation. In that event, a mediation process
of the following sort should be offered. Upon waiver of the 120 day requirement, any
claimant who chooses to mediate a claim shall be entitled to a mediation session
attended by the claimant and a designee of the Special Master and facilitated by a
qualified mediator who is neutral. If a mutually agreeable settlement
recommendation is reached, the mediator shall then draft a statement indicating that
a tentative settlement has been reached and setting forth the terms of the tentative
settlement. Both the claimant and the designee of the Special Master must sign the
settlement recommendation statement. A statement duly signed will be forwarded
to the Special Master. The Special Master shall then review the recommendation of
the mediation and enter a final determination which is not subject to judicial review.
If the mediation is unable to settle the claim, the mediator may return the claim to a Hearing Officer for a de novo, more extensive evidentiary second-track hearing.
4. Appeal
An appeal from the Initial Decision and expedited hearing or the decision of a Hearing Officer after a second-track, more extensive evidentiary hearing, must be in writing, and must be filed with the Appellate Section in the
Office of the Special Master.
The claimant or personal representative may set forth in the appeal the reasons for believing that the decision below is incorrect, but may not submit new written documentation or other records that were not provided to the Hearing Officer or to the mediator before the Hearing Officer issued a recommendation or the
mediation occurred.
The Special Master shall review the appeal on the record and issue a determination which shall either affirm or reverse the initial decision below or, when appropriate, remand the claim for further action. The memorandum of determination shall include a statement of the reasons for such reversal, affirmance, or remand. The Special Master's Office shall promptly inform the claimant or personal representative of the action of the Special Master. A determination affirming or reversing the decision below shall be final and not subject to judicial review.
D. Hearing Officers
The Department has also requested comments on whether the Special Master should use hearing officers to hear witnesses and review written evidence. If so, the Department has requested comments on what qualifications and training those who perform such tasks should have. Additionally, the Department has requested
comments on what other specific duties and powers should be delegated to hearing
officers.
1. Should Hearing Officers be used?
Hearing Officers should be used in order to facilitate the expeditious review of claims. Section 405(b)(4)(B) expressly grants claimants the right to present evidence, including the presentation of witnesses and documents. When this section is read in conjunction with section 404(3), granting the Special Master the power to employ and supervise "Hearing Officers," it is clear that the Victim Compensation
Act creates a right to hearing with a Hearing Officer.
2. What qualifications and training should Hearing Officers have?
A Hearing Officer can be any individual who has experience and skill in presiding over or participating in adjudicatory proceedings such as trials, administrative actions, appeals, mediation or alternative dispute resolution. Hearing Officers can be retired or resigned federal court judges, retired or resigned federal magistrate judges, or retired or resigned state court judges of courts of general
jurisdiction or appellate courts. The Special Master may determine that experienced
lawyers who have not been judges are adequate to perform the tasks of some Hearing
Officers. Employees of the United States government, the airline industry or
insurance industry shall not be selected as Hearing Officers. Hearing Officers should
be subject to removal by the Special Master for incompetence, misconduct, neglect
of duty, physical or mental disability, or for other good cause shown. Additionally,
no Hearing Officer shall conduct any proceedings with regard to a claim in which he
or she is prejudiced or partial, or where he or she has any interest in the matter
pending for decision. Hearing officers shall not be permitted to act in any claim
involving a party that employed such Hearing Officer within one year before the
adjudication of such claim.
3. Duties and powers of Hearing Officers
Hearing Officers should be authorized to: (a) conduct expedited and more extensive hearings and adjudicate claims in accordance with these regulations and the Act, (b) administer oaths and examine witnesses; (c) compel the production of documents and appearance of witnesses by issuance of a subpoena; (d) prepare
documents for signature of the parties; (e) issue decisions and orders with respect to
claims under the Act; (f) grant continuances in appropriate circumstances; and (g)
perform all other necessary actions to discharge the duties of Hearing Officer.
IV. PROCEDURES TO ASSIST AN INDIVIDUAL IN FILING AND PURSUING CLAIMS
A. Assistance By the Office of the Special Master
Key to the success of the Program is the dissemination of explanatory
information. To this end the Special Master should create: (a) a website containing
a statement of claimant's rights, a description of the claim submission and review
processes, and information pertaining to assistance with filing claims; (b) a toll-free
number through which potential claimants and representatives may seek assistance in filing claims; and (c) a list of public libraries throughout the United States where
claimants may obtain access to the Internet to aid them in submitting a claim.
Claimants should be instructed to seek legal counsel if they so desire and should be referred to pro bono services that may be available.
Intake Office
In addition to conducting the initial screening of the Claim Form the Intake
Office should answer claimants' questions and provide various forms to claimants.
Intake Officers should explain the claims resolution process to potential claimants
and educate claimants about those aspects of the process with which they are
unfamiliar.
Intake Officers must possess excellent communication skills. Knowledge of languages other than English would be particularly valuable. Otherwise translators should be made available upon request. Counseling skills could prove helpful during the early stages of the claims process.
B. Expedited Processing
A triage system should be established that would allow for expedited claims processing with respect to claimants in dire financial circumstances. They should be given the opportunity to be heard first (like recipients of Section 8 Housing who receive a point ranking based on need). The burden should be on the claimant to request expedited processing on a separate form and to provide reasons based on
need that would justify earlier review. Also, the Special Master may, upon further
request and for good cause shown, order an advance against the final compensation
determination of up to 25,000.
C. Attorney's Fees
It is the ABA's policy that there be no arbitrary or unreasonable limitations
placed on attorney fees in agency proceedings. The ABA believes that attorney fees
charged in agency proceedings should be reasonable. The ABA also believes fee
arrangements should be written in plain language that clearly identifies the basis on
which a fee is to be calculated. Claimants should be instructed to seek legal counsel
if they so desire and should be referred to pro bono services that may be available.
V. CLAIMANT ELIGIBILITY
The eligibility criteria for claims must be clarified so that resolution of claims can occur in a reliable, efficient, and non-adversarial manner, with minimal administrative cost to the claimant and to the United States. To further those goals and to better explain the requirements that a potential claimant must meet, definitions of eligible individuals in Section 405(c)(2) should be made more precise. While the legislation adequately describes a number of matters, the terms "present at," "physical
harm," and "immediate aftermath" need to be defined. We suggest the following
definitions:
- "Present at" should mean being at a location described in Section
405(c)(2)(A)(i) or contiguous thereto when physical harm occurs.
- "Physical harm" should mean a direct injury to a person and any
proximately resulting physical condition or loss.
- "Immediate aftermath" should mean the time beginning with the
hijackings of September 11,2001, and terminating at a time to be
determined by the Special Master to encompass all provable injuries
arising out of the events of September 11, 2001.
A. Basic Criteria
To establish eligibility for compensation under Section 405(c)(2), the individual filing a claim under the Act should be required to demonstrate by a preponderance of the evidence that each of the following criteria are satisfied: (1) the claimant was physically present at the affected area at the time, or in the immediate aftermath of the terrorist-related aircraft crashes of September 11, 2001; (2) the claimant suffered physical harm or death as a direct and proximate result of the
terrorist-related aircraft crashes of September 11, 2001, while physically present
within the affected area during the crash or the immediate aftermath; and (3) in the
case of a deceased claimant, the individual filing a claim under the Act is the
qualified personal representative of the decedent. A personal representative shall act
on behalf of the decedent's beneficiaries as defined by the laws of the decedent's
domicile.
B. Evidence in Support of Claims
All claims and supporting written affidavits and declarations should be under
oath and subject to penalty [i.e., under the federal statute covering misrepresentations
or perjury in applications to the federal government]. The claimant shall be granted
the right to issue subpoenas to facilitate acquisition of evidence in support of a claim.
The claims should contain:
1. Proof of the claimant's date of birth. The claimant's date of birth must
be established by submitting a birth certificate. If the claimant has no birth
certificate, proof of the claimant's date of birth should be established by one of the
following records: (a) a baptismal certificate; (b) tribal records; or (c) hospital records
of birth.
2. Proof of physical presence. For purposes of establishing eligibility, the claimant must have been physically present within the statutorily defined area during the designated time period. Proof of physical presence may be made by the submission of any trustworthy contemporaneous information or records that, on their face or in conjunction with other such records, establish that the claimant was present in the statutorily defined area during the designated time period. Contemporaneous
records from the following sources are presumed to be trustworthy: (a) records of the
federal government, any liberal government or any state, country, city or local governmental
office, agency, department, board or other entity, or other public office
or agency; (b) records of any private utility licensed or otherwise approved by any
governmental entity, including any such utility providing telephone services,
including wireless telephones services; (c) records of any religious organization that
has tax-exempt status under section 501(c)(3) of the United States Internal Revenue
Code; (d) records of any regularly conducted business activity or entity; (e) records
of any recognized civic association or organization; or (f) medical records created
during the designated time period.
If the claimant or personal representative does not have contemporaneous records demonstrating proof of physical presence, the claimant or personal representative may submit written affidavits or declarations by the claimant's
employer, if the claimant is or was employed by an entity in the statutorily defined
area. If the claimant or personal representative does not have the affidavit or
declaration of such employer, the claimant may submit written affidavits or
declarations of any other individual or entity who is able to verify the claimant's
physical presence.
3. Proof of physical harm or proof of death.
(a) Proof of physical harm. Written medical documentation is required in all cases to prove that the claimant suffered or suffers from the physical harm that is a direct and proximate result of the terrorist-related aircraft crashes of September 11, 2001. Acceptable written medical documentation may come from the following sources: (i) hospitals, clinics, or treatment centers; (ii) reports of licensed physicians or other medical personnel; (iii) records of authorized rescue personnel; or (iv) official registries of injured persons maintained by Federal, State, or local governments. The written medical documentation submitted must contain sufficient information to allow the Office of the Special Master to determine the nature and extent of harm to the claimant.
(b) Proof of death. Proof of the claimant's death or conclusively
established by: (i) A showing that the claimant was either a member of the flight
crew or a passenger on American Airlines flight 11 or 77 or United Airlines flight 93
or 175, on September 11, 2001; or (ii) A death certificate issued by appropriate
authorities as defined under Federal, State or local law.
4. Waiver
If the claimant or personal representative of a claimant does not have
conclusive proof of any of the above-described evidence, the claimant or personal
representative of a claimant may submit written affidavits or declarations by the
claimant's employer, members of the claimant's family, or witnesses to the claimant's
death or other reliable sources of proof.
C. Limitations
(1) Participants and representatives of participants. No individual identified by the Attorney General to have been a participant or conspirator in the terrorist-related aircraft crashes of September 11, 2001 and no representative of such individual shall be eligible to receive compensation under the Act.
(2) Single claim. No more than one claim may be submitted under this title by an individual or on behalf of a deceased individual.
(3) Waiver of civil actions. Upon the submission of a claim under the Act, the claimant waives the right to file a civil action (or to be a party to an action) in any Federal or State court for damages sustained as a result of the terrorist-related crashes of September 11, 2001. The preceding sentence does not apply to a civil action to recover collateral source obligations. An individual who is a party to such a civil action may not submit a claim under this title unless such individual withdraws from such action by the date that is 90 days after the date on which these regulations are promulgated.
(4) Time Limitation. No claim may be filed after the date that is two years after the date on which these regulations are promulgated.
VI. NATURE AND AMOUNT OF COMPENSATION
A. Schedule or Statistical Methodologies
The Department has invited comments on whether and how schedules and statistical methodologies should be developed and used in reaching a determination for each claimant within the mandated time period. Schedules and statistical
methodologies should not be developed and used. The Act establishes a process that
entitles each claimant to a hearing at which he/she can present evidence and
witnesses if he/she desires to do so. This requires each claim to be analyzed on an
individual case-by-case basis. A pre-determined grid or matrix-type system will
defeat the purpose and function of the Act; moreover, such a system will likely erode
public confidence in the program's ability to offer full and fair compensation and due
process protection. As the ABA Task Force on Terrorism and the Law has
previously stated, the concepts of predictability and horizontal equity are of
paramount importance to the perceived fairness of the Fund program. Hence, as
awards are finalized a publicly-available data base ought to be created consistent with
privacy concerns that will allow later claimants to assess prospects.
B. Use of Experts
There should not be a prohibition on the use of experts by claimants. Under the Act, each claimant is given the right to a hearing where he/she can present evidence and witnesses. Since each case is to be decided individually, there may be instances where expert testimony is required to prove and develop essential elements of a claim. However, with respect to economic experts material in report form rather that live testimony should be encouraged.
C. Choice of Law
The Department also seeks comments on which state's law should apply to both economic and non-economic damages. A uniform set of rules should be applied to all cases. This will provide a means of providing fair, equitable compensation for all individuals making a claim, although the amount awarded to various claimants will differ based on factors such as income earned. Having a different set of rules in place for different victims will lead to some victims recovering for items that may not be available under the laws applicable to other victims and vice versa. Such a result
is not contemplated by the Act. Non-economic loses are not to be determined in
accordance with any particular state law. Section 402(7) does not refer to "applicable
state law." Moreover, §402(7) presents a comprehensive list of non-economic losses
which may be recovered. Various states do not allow for certain of the non-economic
damages which are specifically allowed by the Act. Therefore, using state law to
determine non-economic damages will almost certainly conflict with the express
language of the Act. We suggest that a uniform body of law be fashioned that
effectuates each of the elements outlined in the Act.
However, "Economic Loss" is defined under the Act as "any pecuniary loss resulting from harm (including the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death,
burial costs, and loss of business or employment opportunities) to the extent recovery
for such loss is allowed under applicable State law" (emphasis added). This seems
to suggest that a choice of law must be made for economic losses. If so, it is
proposed that the law of the domicile of the claimant, or the situs, at the election of
the claimant, be chosen but only insofar as it is not in conflict with the requirements
of the Act. If there is a conflict, the language of the Act must control.
D. Collateral Sources
The Department has requested comments on what constitutes a "collateral source" and on whether charitable contributions should be considered a "collateral source." Based on public policy considerations and the plain language of the Act, charitable contributions should not be considered collateral sources for the purposes of the Act. Additionally, public policy considerations and equity mandate that payments made to victims that carry with them a right of subrogation should not be
considered collateral sources under the Act.
1. Charitable contributions shall not be considered Collateral Sources for the purposes of the Act.
Including charitable contributions as collateral sources would be contrary to the Act because they are not in the same class of payments as the examples of collateral sources listed in the Act. (see §402(4)). The examples of collateral sources in the Act are all payments or assets that belong to the decedent by statute or contract. Charitable donations are not of the same character. It would be contrary to the spirit of charitable giving to include charitable contributions within the
definition of collateral sources to defeat or reduce a person's claim. More
importantly case law established that proper respect for Congressional powers implies
that statutory construction must begin with the language employed by Congress and
the assumption that the overriding meaning of that language accurately expresses
legislative purpose. If the Congress wanted to reduce the amount of the award by the
amount of the charitable contributions/gifts received they would have, or should
have, explicitly noted it in the Act.
Under 404(a)(2)(B)(iii), a Claim Form must include "information regarding collateral sources of compensation the claimant has received or is entitled to receive as a result of crashes." While a claimant might have already received some charitable assistance, much of this assistance may come after the claimant completes the Fund process or during the Fund process. Furthermore, a claimant is not "entitled" to
receive that money. For these reasons, the regulations should make clear that
charitable assistance contributions are not considered a collateral source.
2. Contributions subject to subrogation rights shall not be considered collateral sources for the purposes of the Act.
A collateral source rule usually operates to allow recovery of losses compensated by insurance and is traditionally justified on two grounds: (1) it preserves the insurer's right to subrogation and (2) it preserves the injured party the benefit of insurance for which he has paid. Dan B. Dobbs, The Law of Torts §380
at 158-59. Allowing the reduction of a collateral source which has a subrogation
right attached to it from the damages the claimant is entitled to under the Act will
result in reducing the compensation from the claimant twice. It will allow for the
reduction in damages from the claimant under the Act for a collateral source the
claimant has paid for; at the same time, the claimant will be required to pay back the
amount paid under the subrogation clause to the original payee of the benefits. For
this reason, the following procedure should be applied: collateral source does not
include benefits paid or payable by a person, partnership, association, corporation,
or other legal entity entitled by contract or statute to a lien against the proceeds of a
recovery by a claimant for damages under the Act. Support for this is found in
Michigan Compiled Laws Annotated, Section 600.6303(4). Finally, any collateral
source deduction should only be made from the determined economic losses.
3. Final collateral source consideration.
If the Special Master decides, however, to deem charitable contributions and contributions subject to subrogation rights as collateral sources and subtracts these amounts from the award, at a minimum, the regulation should require that the original payee will have no right to enforce any subrogation clause in its contract against the claimant for any amount deducted from an award. In addition, the award
document itself, should show precisely the amount and source of any collateral
source being deducted from the award and should clearly tell the claimant that he/she
has no responsibility for reimbursing those payees for any funds that they received
at an earlier date.
If there is not a vested right under contract or some other means to enforce payment by the claimant, those funds should not be considered a collateral source and should not be deducted from the award.
VII. OFFICE OF THE SPECIAL MASTER
The duties and responsibilities of the Special Master should also be established. These should be modeled after the Special Master provisions of the National Vaccine Injury Compensation Program, 42 U.S.C. §§300aa-12(c) -
300aa(12)(d).
The Special Master should be charged with: (1) administering the Office of the Special Master and its staff, providing for the efficient, expeditious and effective handling of claims, and performing such other duties related to the Act as may be assigned by the Attorney General; (2) administering the September 11th Victim Compensation Fund of 2001 Program; (3) appointing and fixing the salary and duties
of Hearing Officers; (4) appointing and fixing the salary and duties of Mediators; (5)
establishing and fixing the salary and duties of personnel in the Intake Office; (6)
establishing and fixing the salary and duties of personnel in the Verification Office;
(7) appointing and supervising such administrative personnel as are necessary; (8)
hearing appeals from decisions of Hearing Officers; (9) rendering final
determinations of claims; (10) reporting every six months to the Attorney General on
the number of claims filed under the Act and their disposition, the types and amounts
of awards, the length of time for the disposition of claims, the cost of administering
the Program, and recommendations for changes in the Program; (11) developing
Claim Forms in accordance with section 405(a)(2) of the Act; (12) establishing all
necessary orders rules, guidelines and procedures; and (13) reporting to Congress on
a yearly basis on the operation of the Program.
VII. ASSESSMENT PROGRAM
Not later than December 31, 2004, the Attorney General, in consultation with the Special Master, shall submit a report on the performance of the Fund established by the September 11th Victim Compensation Act of 2001. This report shall include as assessment of the extent to which the Fund has equitably and efficiently provided compensation to individuals (or relatives of deceased individuals) who were
physically injured or killed as a result of the terrorist-related aircraft crashes of
September 11, 2001. The report shall identify the extent to which specific provisions
of the Act and of the regulations subsequently promulgated to carry out the Act have
affected the equity and efficiency of the compensation provided by the Fund. The
report shall also compare the net compensation obtained by claimants against the
Fund to the net compensation obtained by claimants who pursue a civil action in any
Federal or state court for damages sustained as a result of the terrorist-related crashes
of September 11, 2001, taking account of the claimants' injuries and losses. This
report shall be based on a study conducted by an independent research organization
with expertise in the area of compensation for personal injuries and experience in
empirically analyzing the performance of diverse systems used to compensate injury
victims. The Special Master and the Fund shall collect the information needed to
support the evaluation as specified by the independent research organization.
IX. OTHER CONSIDERATIONS
1. The ABA Sections that have significantly contributed to these comments are positioned to submit comprehensive additional comments and a Claim Form for use in administering the Fund Program. The ABA stands ready to provide
this additional information upon request.
2. Experience in prior claim programs has demonstrated the need, where appropriate, for waiver or minor extensions of otherwise applicable filing and determination deadlines. This principle is reflected in the above comments. However, in crafting such provisions, the Special Master needs to fix an expedient
end date for all determinations to fulfill the Congressional mandate and intent of the
Act.
3. The Special Master is encouraged to development regulations to address questions of fraudulent claiming.
Respectfully submitted,
Comment By
American Bar Association's Task Force on Terrorism and the Law