N001482
Wednesday, January 09, 2002 9:12 PM
final interim rules of the victims compensation fund of 2001
Dear Special Master Fienberg:
Please accept the following comments to the final interim rules you published on December 21, 2001. I am an attorney who represents two New Jersey families who lost their husbands and fathers on September 11, 2001. I submit that the rules you published fall far short of the clear intent of congress expressed in the passage of the September 11th Victim Compensation Fund of 2001. You accepted a position the madates that you follow the statute, not creat law or a program that might pass muster with the public or the elecorate. This fund, nor the comments made to the proposed regulations and the final interim rules are not a referendum or a popularity contest. I have read every comment made and published on the Department of Justice website and understand the frustration of all commenters. But your accepted task is to implement the program set out by statute by the people the citizens of this country elected to make such decisions. And it must be remembered that the Fund was created to create a compensation program that would replace what otherwise would be overwhelming litigation against a variety of businesses, industries and governmental agencies. It is not for you or I to determine whether or not such litigation, without the restrictions the same congress created in the Ait Transportation Safety and System Stabilization Act would or would not successful. It is mine task to represent my clients and their respective best interest. It is yours to implement the Act by regulation not alter it by tortured logic or created 'law'.
First, I agree with your conclusion that the statute requires the collateral source deductions you have announced and beleive your offer to sit with claimants and explain the Fund and its offsets is a reasonable one. However, it is my understaanding that legilation is now pending in congress which would remove that collateral source deduction. Your final rules should at least advise that any law passed in the future will be honored regrding this issue for all claimants, even those few who may choose to enter the Fund now (for reasons such as severe economic need).
Second, the noneconomic loss calculation is incorrectly based on other federal entitlement programs, not designed for the purpose which this Fund was created. Nontherless, I agree that there is no amount of money which would compensate for the noneconomic loss. To award a different sum of money to any one victim on this issue would be impossible. Each story is more compelling than the next and I do not think you have violated the law by assessing the amount of noneconomic loss, although there in no jury award that could possible be as low as your assigned damage amount. I believe you had to come up with a single amount for noneconomic loss and while i strongly urge you to increase the amount to reflect a better value for what the claimants are foregoing (by act of congress as nush as their personal choice).
Third, the economic loss calculations are simply illegal. The Act clearly set forth what the term meant and your cap is simply not sustainable under the law. No state law in this land assumes economic loss is too hihg to be awarded becasue an individual is in teh highest two percent of income earners. The assumptions you made regarding gowth of income and reduction for consumption factors (and not accounting at all for the loss of fringe beneifts) are debatable. As such i believe your decision to use the calculations you do are defendable and would not be upset in a legal attack on the regulations. However, not following the Act with respect to the definition of economic loss cannot be sustained. Challenges to the final rules are already being actively considered. I understand that many commentators think the government is creating some awful precedent and giving taxpayer money away to make 'instant millionaires.' It must be stated that it is for Congress in its wisdom and with its elected madate to act in the nation's best interests to create a land of law. It has done so. It is not for others, or you, or me, to debate that in this forum. It is your responsibility to see that the intent of the Act is met by the regulations, your interim final rules fall far short of the mark. Many will be forced into the Fund by need, fear of the unknown or the need for finality. But it will not take so many years to litigate cases with exclusive jurisdiction placed by the Act in the United States District Court for the Southern District of New York. The real problem is the Act's limitation on the potential liability of the airlines. Those able to move quickly (those with the highest abvailable assets to bring litigation quickly and to a conclusion more quickly than others) amy deplete what is available in litigation. The Congress determined that it should act to avoid litigation of these claims and your job is to implement that decision. Clearly, not considering economic loss to the extent the law clearly provides for is not consistent with your task or the law. I urge you to reconsider the limitation you have placed and the impossible standard you have placed for overcoming the limitation. Proving extraordinary loss in this circumstance is near impossible. If the regulations were changed to make clear that the guideline's limitation would not apply if a claimant proved a greater loss, then many of the objections which are likely to succeed in a legal challenge to the rules would be eliminated.
Thank you for the opportunity to comment on the final interim rules. God bless America.
Individual Comment
Cranford, New Jersey