N002163
Monday, January 21, 2002 12:19 PM
(no subject)
January 21, 2002
Mr. Kenneth Zwick, Director
Office of Management Programs
US Department of Justice
Dear Mr. Zwick:
I lost my only son, in the September 11 attack on the
World Trade Center.") He worked in Tower I on the floor. I am
writing to lend my voice to the other victims' families of this unprecedented
attach on our great country which took the lives of so many of our loved ones
- and to express my serious concerns and objections to the Department of
Justice's (DOJ) "Interim Final Regulations Governing Payments Under the
September 11th Victim Compensation Fund." I and all the victims' families
would gladly give up all compensation to have our loved ones back. However,
since that is not possible, we ask only for fairness so that we may piece
together our shattered lives and hopefully, be able to move on as difficult
as this will be.
I implore you, as our elected official, to demand changes to the interim
rules issued by Mr. Feinberg, the Special Master. As it stands now Mr.
Feinberg's self-imposed rules fail to satisfy the letter or the spirit of the
legislation which was enacted.
The airline bailout act gave the airlines $15 billion in cash and loan
guarantees and capped the airlines' liability for the September 11 crashes at
the limits of their insurance coverage. Because of this cap, the damage
caused by the crashes greatly exceeds the private Fund available to
compensate victims and their families. Thus for the vast majority of victims
and families, the cap has the effect of eliminating the right that they would
otherwise have to sue the airlines. Congress set up the Fund to ensure that
the airline bailout would not come at the expense of the victims' families.
The act mandates full and fair compensation to victims and their families for
their actual economic and non-economic damages.
DOJ has ignored this mandate and instead has written arbitrary
regulations that will result in compensation levels far below the losses
actually suffered by the victims and their families. In fact, many families'
total compensation from the Fund and all collateral sources combined will not
even fully replace lost income. In effect, these families will not receive
any of the non-economic compensation required by the statute. After
collateral sources are deducted, as required by the statute, some families
would receive nothing from the Fund under the interim final regulations. At
the very least, there should definitely be an attractive significant minimum
sum, which the family of a victim can receive by Fund participation, which
would not be reduced by any "collateral source compensation."
DOJ's formula allows for non-economic awards at only one-tenth the level
paid in comparable cases. The presumed non-economic damages awards provided
under the interim final rules are substantially lower than those paid in
comparable cases. Non-economic damage awards in considerable excess of $1
million are typical for other airline crashes and terrorism cases, but in
this instance, presumed non-economic damages awards are limited to $250,000
per victim and $50,000 for a spouse and each dependent. This dramatic
undervaluation of presumed non-economic damages runs contrary to Congress's
general intent to provide full and fair compensation and, significantly, to
the specific language of the law establishing the Fund, which lists an
extremely broad array of non-economic damages for which victims and their
loved ones are to be compensated (regardless of what may be allowable under
state law). The interim final rules can and should be fixed to increase
presumed non-economic damages awards to amounts which properly reflect
Congress's intent and are a more realistic assessment of the considerable
pain and suffering endured by the victims of the September 11th terrorist
attacks and their loved ones.
Independent economists have found serious flaws in DOJ's method of
calculating economic damages, including use of outdated and inapplicable
worklife and life-cycle earnings data. DOJ greatly underestimates promotions
and other increases in earnings for victims. It relies on civil service and
military retirement system actuarial data that track federal worker incomes
and pension requirements, not the higher-paying private sector career paths
followed by the vast majority of the victims.
The interim final regulations also arbitrarily caps a victim's income at
$231,000 a year. Combined with the faulty methodology described above, the
income cap would result in some families receiving compensation for less than
25% of their actual economic losses. Those victims, particularly from the
financial sector, are specifically harmed by this limit. They were targeted
precisely because of the jobs they held and where they worked - in The World
Trade Center, the financial capital of the world, the embodiment of financial
success. Those who achieved such success should see that reflected in their
awards. They personified American business and commerce, democracy and
freedom.
Under DOJ's rules, a family's award may be increased above the
"presumptive" award only by a showing of "extraordinary circumstances" --
beyond those suffered by other victims or victims' families. This high burden
of proof makes a charade of the right to a hearing provided by the statute.
DOJ has constructed a scheme that provides extremely low awards to those who
lost loved ones due to the extraordinary events of September 11 and then
declares that only in cases that are extraordinary, beyond those already
extraordinary events, will awards be increased. This is virtually an
impossible standard to meet and leaves families skeptical as to the Special
Master's final decisions.
DOJ should fulfill the act's intent by revising the rules to compensate
victims and their families for the types of damages specified by Congress, at
levels comparable to those provided in the tort system the Fund was designed
to replace. While DOJ has shown flexibility on some aspects of the rules, it
is resisting the victims' and families' requests for significant changes. If
the proposed regulations are not changed significantly, victims' widows will
have to sell their homes, deplete their children's college funds, and give up
their plans of being full-time parents while their children are young. Many
families, anticipating little relief from the fund, will decide to sue the
airlines and others, despite the handicap of the liability limits. We do not
believe these are the outcomes Congress intended nor is it what families
really want to do. Additionally, before families blindly give up their right
to sue, they have the right to be fully informed as to what their
compensation will be. This is the American way.
And lastly, but with no less importance, in many cases, parents, siblings
and other family members should be assured recognition in the distribution of
the awards received by the Personal Representatives. There are special
circumstances in many families that do not conform with the norm. With
respect to estranged next of kin parents, the surviving children and/or
siblings, who alone provided love and support to the victim, should be
considered as a special circumstance. Similarly, for parents, who spent
their entire lives loving, nurturing and caring for their deceased child, the
death of their child is the most devastating loss one can conceive of,
particularly in such an unspeakably horrible act of terrorism. A vast number
of these parents are now divorced, widowed or advancing in age themselves
and had been assured by the victim that they would provide assistance to
them. Their years of love and dediction to the victims should be
acknowledged. Many parents who had worked before September 11, are unable to
now because their grief is so great they are emotionally unable to perform
even routine functions. Many of the victims were young, earning high
incomes, married for only a short period of time, had no dependent children
and did not yet have a will. These victims' intentions should be honored.
This is what they would surely have wanted. In these cases, awards should
not only be received by the "legal next of kin". Parents, siblings and other
family members endured unbearable losses that will never by replaced. They
were also dependent upon the victims for love, companionship and support
(either present or future).
Please contact Attorney General John D. Ashcroft and Special Master
Kenneth R. Feinberg and tell them of your concern that the interim final
regulations fail to conform to the language and intent of the act. With the
regulations soon to become final, I believe that only the swift and strong
support of Congress can avert unnecessary financial and emotional damage.
Thank you for giving this matter your immediate attention.
Most sincerely,
Individual Comment
New York, NY