N002177
Monday, January 21, 2002 2:06 PM
Dear Sir or Madam,
Please accept my comments below with respect to the Interim Final
Regulations Governing Payments Under the September 11th Victim Compensation
Fund.
I am writing today to request action on behalf of the family members of the
victims of the violent terrorist attacks of September 11, 2001. These
attacks were perpetrated not only against our sisters and brothers,
daughters and sons, mothers and fathers, wives and husbands, but against
the United States of America and against freedom itself.
I lost my dear sister, , on that beautiful fall day.
was 35 years old and my only sibling. She was a vibrant, beautiful member
of the human race who lifted up all who knew her. Her laughter still rings
in our ears; her smile still burns in our memories. Our personal loss is as
brutal as it is immeasurable. lived in ,
worked in New York (at the World Trade Center), and spent most of her life
in where she was memorialized on Saturday, October 27 and
where we will bury her remains if they are ever found. Not only was a
joyful, loving person, she also contributed significantly to the economy of
our nation and the world.
I am seriously concerned about the Department of Justice's (DOJ) "Interim
Final Regulations Governing Payments Under the September 11th Victims'
Compensation Fund." I urge you to consider my objections listed below and
to revise the regulations to more fairly fulfill the intention of the
Victims' Compensation Fund.
I have four concerns:
The intent of the legislation that established this Victims'
Compensation Fund ("the Fund"). Was it intended as a charitable gift to
the families to prevent their destitution, or as I contend, was it was
established to acknowledge general liability (at least on the part of
the airlines) and to fairly compensate the families for their losses?
If the Fund was intended to compensate families, then it should do so
fairly and accurately, not arbitrarily and erroneously as the
regulations are currently written.
Financial "offsets" for victims who had the responsibility and foresight
to provide death benefits to their families are unfair and unjust.
Finally, I am concerned about the transparency of the regulations and
the supporting calculations, asking families to sign away rights without
knowing the full financial impact of such action.
1. THE INTENT OF THE VICTIMS' COMPENSATION FUND
Several editorials and newspaper articles lately have intimated the Fund
was not designed to replace the tort system, that is therefore represents
some sort of charity. However, by naming this a Compensation Fund and
attaching it the $15 billion airline bailout, Congress has acknowledged
that there is liability in the unnecessary deaths of over 3,000 victims and
the unnecessary pain and suffering of their families.
If it is true that there was no way to prevent this attack, that every
party acted responsibly, and that no blame can be assigned (at least
partially) in these deaths, then the Fund is charitable, and we the
families should be grateful. If that is the case, we do not need to have a
say in how the Fund is distributed, but by the same token, we should not
have to sign away our right to future litigation. I believe that several
parties, not just the airlines have some liability in what happened on
September 11. Our family members died because of a well-executed plan that
had been in the making for years. Many of these terrorists were in the
country illegally (does the INS bear some liability?); they overtook
several jets leaving from several airports (do the airliners or the
airports or the airport security officers bear some liability?). The FBI
had prior knowledge of potential terrorists taking flying lessons but only
learning how to fly the plane, not how to land (does the FBI bear some
liability?). The buildings collapsed on many of our loved ones. Many
families and others believe no one in Tower 2 should have died (does the NY
Port Authority bear some liability for not evacuating Tower 2 immediately
or worse by encouraging employees to return to their offices?). Could the
buildings have been built with greater enforcement, perhaps not collapsing
and sparing the lives of those below the points of impact (do the owners
and/or builders and engineers of the World Trade Center bear some
liability?)? I hope we find out the answers to these questions someday, but
I am not optimistic.
I find it difficult to believe that the intent of the Fund was to provide
relief to the families to prevent OUR destitution. No one was lobbying on
our behalf on September 12. But the airlines and the insurance companies,
they were on Capitol Hill on September 12. And were they rushing to see
what they could do improve airline safety? To prevent something like this
from ever happening again? No. They were on the Hill covering their
liabilities. And Congress responded ? protecting industry and government
from destitution, not the families. I believe this Fund was enacted to
protect the airlines, the owners and builders of the Trade Center, the US
government and the legal system. It had nothing to do with providing for
the "poor families". Furthermore, by capping any liability of the airlines
to the amount of their insurance, Congress has effectively forced the Fund
on the families as the only means of compensation. 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 has taken away our
rights to have a judge and jury hear our cases and determine in a court of
law whether or not there is liability and to what financial degree. So
judge and jury are now embodied in Special Master Kenneth Feinberg and his
regulations governing the distribution of payments from the Fund.
2. THE REGULATIONS GOVERNING DISBURSEMENTS OF THE FUND ARE FLAWED
This brings us to my second concern. If we agree that the intent of the
Victims' Compensation Fund is to acknowledge some degree of liability, to
protect industry and the American economy as well as the legal system from
thousands of law suits, and to compensate victims and their families fully
and fairly for their actual economic and non-economic damages, then we must
change the regulations governing the Fund payments to more accurately
reflect the intention mandated by the Congress in establishing the Fund. If
the regulations are the only means to ensure that the intent of the Fund is
carried out, then all aspects of the regulations must be transparent and
must be subject to the recommendations of experts in the relevant areas.
I contend that the Department of Justice (DOJ) has ignored the mandate of
congress to fully and fairly compensate and instead has written arbitrary
regulations that will result in compensation levels far below the losses
actual 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. I
will detail my major concerns with the regulations as pertains to the
calculation of non-economic and economic compensation.
Non-economic Damages: DOJ's formula allows for non-economic awards at only
one-tenth the level paid in comparable cases, even though Congress
explicitly enumerated a broader range of non-economic damages than could be
recovered in any single jurisdiction. DOJ's formula for non-economic
damages is $250,000 for the person killed and $50,000 for the spouse and
each dependent. In a wide variety of air crash and terrorism cases,
however, judges, juries, and mediators commonly have provided non-economic
damage awards well into the seven-figure range. In headline cases, juries
have even award millions of dollars for burns resulting from spilled coffee
and other significantly less severe injuries than those suffered on
September 11 . This arbitrary cap is derived from compensation made to
servicemen and women who die in the line of duty. I do not believe this is
in any way comparable to the death of private citizens who did not "sign
up" for the calculated risk of directly facing an enemy of the United
States. Finally, this non-economic figure should not have anything to do
with "valuing" a human life. It should be about compensating for
unnecessary death, unnecessary pain and suffering, and the other damages
delineated by Congress in conjunction with an average of current awards for
similar damages.
Economic Damages: With respect to DOJ's method of calculating economic
damages, there are several serious flaws in the methodology. Independent
economists, including the National Association of Forensic Economists at
their annual meeting on January 4 of this year, have forwarded their
recommendations to Special Master Kenneth Feinberg. Mr. Feinberg, it seems,
has neither solicited nor heeded the advice of economists who work with
life earnings estimates on a daily basis. The errors in the calculations
are better addressed by the economists' statements, but they include such
issues as the use of outdated and inapplicable worklife and life-cycle
earnings data. In particular, the calculations used to project women's and
minorities' earnings are based on data from 1979 and 1980. (As a working
woman, I know first hand that my career track is wildly different today
than 20+ years ago.) Because this methodology 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, DOJ greatly underestimates
promotions and other increases in earnings for the victims of September 11.
The interim final regulations also arbitrarily cap 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.
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 farce of the right to a hearing provided by the
statute.
3. FINANCIAL OFFSETS ARE UNFAIR
My third concern regards financial offsets to the total damages awarded. I
believe that all offsets unfairly penalize victims who demonstrated their
responsibility to their families by providing life insurance benefits for
them. At the very least, death benefits that the victims and their
companies paid for should not be included, even if Workers' Compensation
benefits are included.
4. PLEA FOR TRANSPARENCY IN THE CALCULATION OF DAMAGES
Finally, the regulations and calculations must be transparent and
sanctioned by independent experts. The victims and their families must be
able to determine the specific amount of financial compensation the Fund
will grant before signing away their rights to future litigation. It is
ludicrous to require families to submit to a process where the outcome,
their very financial future, is murky at best and unjust at worst.
DOJ must 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, many
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. I do not believe these are the outcomes Congress
intended.
Finally, please keep in mind the sentiments of New York Governor Pataki
who, when addressing the victims' families on January 17, 2002, reiterated
what I have been saying for weeks about the Victims' Compensation Fund. I,
my mother, any family member would give back every penny of what we might
get from this Fund, what we might have received as gifts from our fellow
brother and sister American citizens for one more day, one more hour with
our loved ones. I, personally, would give all this and more to have my
back for one more of her smiles and one last embrace.
Thank you for giving this matter your immediate attention.
Respectfully yours,
Individual Comment
Randolph, NJ