N002624
January 14, 2002
Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, DC 20530
Re: Comments, September 11th Victim Compensation Fund Regulations
Dear Mr. Zwick:
I represent a number of individuals and families who were directly affected by the events
of September 11, 2001. In this capacity, I have reviewed the Regulations that Special Master
Kenneth Feinberg promulgated for the September 11th Victim Compensation Fund. Please find
below my comments on the Regulations.
I.
As promulgated by the Office of the Special Master on December 20, 2001, the
Regulations governing the September 11th Victim Compensation Fund are, in some instances,
contrary to their empowering statutes. For example, as envisioned by Congress and the
President, the Fund was designed to compensate victims and their surviving families for the
full extent of their "economic losses". To that end, Section 402 (5) of Public Law 107-42 defines
compensable "economic losses" as "any pecuniary loss resulting from harm (including 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.)
The emphasized language is at odds with the formulaic system of matrices that the
Regulations propose for calculating awards under the Fund. Indeed, the matrix system ignores
income in excess of $231,000; in this way, the Regulations fail to offer relief for "any pecuniary
loss," as required by statute. Moreover, the law of no state renders irrelevant income beyond
$231,000 for purposes of determining monetary damages in a court of law. In
the final analysis, the Regulations wrongfully ignore statutory directives to save money for the
federal government-at the expense of the victims and their families.
II..
Second, as they concern collateral offsets, the Regulations do not treat insurance with
sufficient detail. At a minimum, the Regulations should indicate whether insurance proceeds
operate as an offset if they are
1. not owned by the deceased;
2. not payable to estate of the deceased; or
3. payable to a party who is not a beneficiary of the estate.
III..
Finally, the Regulations require Fund claimants to relinquish their right to sue any and
all parties in a separate, fault-based action. However, Public Law 107-42, as modified by
Public Law 107-71, provides that applicants to the Fund should retain their rights to sue
terrorist, their co-conspirators, and terrorist states. The following statutory provisions
illustrate the foregoing:
From Public Law 107-71:
TITLE II, LIABILITY LIMITATION, SEC.201, AIR TRANSPORTATION SAFETY AND
SYSTEM STABILIZATION ACT, AMENDMENTS.
(a) Recover of Collateral Source Obligations of Terrorists. Section 405(c)(3)(B)(i) of the Air
Transportation Safety and System Stabilization Act...is amended by striking "obligations."
and inserting "obligations, or to a civil action against any person who is a knowing participant
in any conspiracy to hijack any aircraft or commit any terrorist act."
From Public Law 107-42, Section 405(c)(3)(B)(i) (modified by the foregoing):
(3) REQUIREMENTS.
(A) SINGLE CLAIM. Not more than one claim may be submitted under this title by an
individual or on behalf of a deceased individual.
(B) LIMITATION ON CIVIL ACTION.
(i) IN GENERAL. Upon the submission of a claim under this title, 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 aircraft crashes of September 11, 2001.
The preceding sentences does not apply to a civil action to recover collateral source obligations.
I trust that the above comments will receive that attention--and the full and fair
consideration-that they deserve.
Very truly yours,
Individual Comment
Stanford, Connecticut