N002392
January 16, 2002
Kenneth L. Zwick,
Director, Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, NW
Washington, D.C. 20350
Re: Interim Final Rule, September 11th Victim Compensation Fund of 2001,
28CFR Part 104, CIV 104P. AG Order No. RIN:1105-AA79
COMMENT ON THE INTERIM FINAL RULE
The undersigned submits the following comments concerning the Interim Final
Rule issued on December 21, 2001. I am hopeful that these comments will be helpful in
assisting the Department in making the process fair and equitable for all the victims'
families.
Introduction
In the immediate aftermath of the tragic attack upon our nation on September 11th
Congress enacted the above referenced legislation to compensate the relatives of the
victims of that brutal attack. The interim rules issued by the Special Master on December
20th fail to satisfy the letter or the spirit of the legislation which was enacted.
It is my understanding that Congress encacted this unprecedented legislation as a
means of aiding the families of the murdered victims by, in some small way,
compensating them for the tremendous losses of their loved ones; as well as protecting the
airline industry from huge losses and bankruptcy, thereby insuring their very survival.
The legislation authorized payment for economic and non-economic loss.
Economic loss was defined as "any pecuniary loss...including the loss of earnings..to
the extent recovery for such loss is allowed under applicable State law."(Sec. 401(5)).
Non-economic loss was defined to include among other things "physical and emotional
pain, suffering...metal anguish...and loss of consortium." (Sec.402(5)).
The sole offsets to the payment for economic and non-economic loss were the
"collateral sources" specified in Sec 402(4). These included "life insurance, pension funds
... and payments by Federal State or local governments related to the attacks of September
11th."These were clearly intended to be the only offsets.
PAIN AND SUFFERING
In his proposed rules, however, the Special Master has imposed offsets which are in
no way authorized by the statue. Specifically, he imposes arbitrary income limits and
restricts pain and suffering awards to $250,000-no matter what the extent of the pain and
suffering may have been. Such a cap is unrealistically low when compared with awards in
cases involving airplane accidents, which awards are usually at least ten times that amount
A review of the "911" tapes of calls coming from the top floors of Tower One would
certainly indicate that those victims were surely aware of their hopeless situation and
suffered a horrible death. Thus, the award for actual pain and suffering must be increased
to recognize this fact.
These victims did not knowingly put themselves at risk and in harms' way and to
treat their pain and suffering differently from other airplane accident cases is patently
unfair and unreasonable.
Therefore, at the outset, the Rule should follow Congress' clear intent in enacting
the Law providing for the Victims' Compensation Fund. As presented the Rule creates
inconsistencies and results which were not envisioned or intended by Congress. For
example, collateral source payment deductions from the stated minimum payments could,
in effect, wipe out even such minimum. Furthermore, the proposed Rule provides that the
value of education programs for victims' children and spouses would be deductible, as
collateral source payments, the present value of the stream of payments to spouses from
Workers' Compensation is deductible based upon the age of the surviving spouse even
though such spouse may not receive the entire compensation award if he or she remarries.
This coupled with the ability for the Worker's Compensation carriers to seek
reimbursement from recipients who have been paid from the fund leads to an utterly
inconsistent result.
I believe that a fairer and more just and realistic award for pain and suffering across
the board with NO deductions would clearly be more consistent with the Act and
congressional intent.
Perhaps the easiest and most just and equitable procedure would be to calculate the
awards utilizing for pain and suffering for each victim without any deductions for
collateral source payment and a sum for economic losses with deductions for collateral
source payments reducing this portion of the award.
INCOME
The starting income increment under the interim rule ignores the most current
years' income, 2001. This is awfully harsh to ignore the income level(on an annualized
basis) of the victim in the year in which he/she was murdered. The omission of 2001
annualized income(particularly of younger workers) has the effect of reducing the income
projection dramatically, thus penalizing those who had demonstrated clear evidence of
significant career advancement.
Thus, earnings for 2001 on an annualized basis should be included in any
computations. For example, if a person had earnings of $100,000 as of August 31, 2001,
his/her earnings on an annualized basis would be $150,000 for 2001, which would then be
the earnings figure to use when calculating an award for economic.
CONCLUSION
When an already unrealistically low value attributed to pain and suffering is
considered with the low starting point for the economic loss category of the proposed
compensation, and after the calculated award is reduced by the collateral source payments
received by many families, the published average award of $1,600,000 becomes a sham.
Thus the practical effect of these caps is to drastically reduce the award from what
the statute intended. Relatives of the victims who were in the financial services sector or in
the public service sector-such as police officers and firefighters-will suffer a particularly
adverse effect. This is not only contrary to the legislation but also entirely unfair.
The financial services victims were killed precisely because of the jobs they held.
They personified American business and commerce. That is why they worked in the World
Trade Center and that is why our enemies targeted them. The police and firefighters were
killed carrying out the most successful rescue operation in the history of the united States.
It is bad enough that these good people were victimized by bin Laden. We cannot allow
their relatives to be victimized again. As Mayor Giuliani stated in his farewell address: "we
have an obligation to the people who did die...Their families need to be protected just as
if they had been alive, financially and in every other way that we can help assist their
families...There should be no compromise about that ever..."
The Victims Compensation Fund was created as a part of a comprehensive
legislative package which bailed out the airline industry and imposed restrictions on the
right of the victims' relatives to recover from the airlines in court. The Fund was
established to protect the rights of the victims' relatives. The Special Master cannot take it
on himself restrict those rights.
Additionally, at the time the legislation was enacted, the amount of fatalities was
expected to be between 6,000 and 10,000. The final number will be less than 3,5000. This
will result in a significant reduction in the expected expenditures and makes the Special
Master's false economies even less defensible.
Consequently, the interim rules must be amended and redefined to the extent that
income caps be removed when computing economic loss and that each victim's case be
addressed separately when computing the non-economic loss attributable to pain and
suffering. Justice demands no less.
The Special Master is urged to revise the Rule accordingly.
Very truly yours.
Individual Comment
BROOKLYN, NY