N002442
January 15, 2002
Kenneth R. Feinberg, Esp., Special Master and
Kenneth L. Zwick, Director
Office Management Programs, Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Re: September 11th Victims' Compensation Fund Program
Dear Mssrs. Feinberg and Zwick:
I am the brother of . My brother, worked at on the floor of World Trade Center and perished in the attack. I have
the following comments and questions which seek to clarify the benefits and
problems with the fund program, particularly for those in the same situation as my
brother, .
Some of these comments were also presented orally to Mr. Feinberg at the
meeting arranged with the survivors.
1. My first series of questions deal with barring further suits for those
who apply for the fund.
(1) Does the act bar suits against the Al-Queda Organization
and Taliban Government as potential defendants who were
active aggressors in this connection with this attack and who
may have funds frozen by the U.S. Government? The act and
regulations should clarify this point.
(2) It appears that the constitutional ground upon which the
Federal Government can bar the victims' families from asserting
State Law claims of negligence and breach of contract after they
have accrued, in other words, ex post facto, is tenuous at best.
The constitutional basis to do so should be clarified.
(3) I note that the regulations state that there can be "no
further review or appeal" from the Special Master's
determination. See CFR, Sec. 104.33(g). This means that if one
submits the Track A written documentation or attends a Track B
hearing, once a determination is received, there is no further
avenue of appeal for the claimant. In return for this, the
claimant is waiving any right to sue in a court of law, with a jury
of their peers and the right to appeal. It is unfair to prevent
some sort of avenue of appeal for claimants. Essentially, this
lead to the result that, once a claimant has gone down that
road, they are stuck with whatever they get. You should
ameliorate this apparent unfairness.
2. The next series of questions deal with use of and possible variation
from the Presumed Economic and Non-Economic Loss Tables.
(1) If an applicant selects "Track B" in which a hearing is held,
that the applicant can submit supplemental information prior to
the hearing after receiving a Notice of Eligibility. It appears that
the regulations allow this. The regulations should provide
guidance on what kinds of supplemental information can be
given prior to the hearing.
(2) The regulations refer to submission of proof of
"extraordinary individual circumstances" but does not define
that term. The regulations should give guidance on this.
(3) There is language in the commentary which states, in words
of substance, that the wealthiest or highest paid may not
necessarily receive the highest awards because "multi-million
dollar awards out of the public coffers are not necessary to
provide them with a strong economic foundation from which to
rebuild their lives." However, consider the following scenario.
Many of those who died were not the wealthiest , but were
professionals who demonstrated substantial future earnings
potential. I would consider my brother in this category.
His earnings were in the six figures and were increasing
exponentially each year. He was also receiving recognition in
the financial press and slowly becoming a recognized analyst in
his area. Without necessarily analyzing his particular situation,
but using him as an example because many, many people who
worked at the World Trade Center and the financial firms located
there were in similar situation--young, up-and-coming high
earners, who were clearly in the situation where they would only
be earning more in future years--doesn't this present a situation
which must be taken into account in the analysis of future
earnings. In furtherance of this, I note that under the Presumed
Economic Loss Table, his widow would be entitled to
approximately $1.6 million. However, a wage earner in his
situation could earn $1.6 million in a relatively short period of
time, e.g., 3-5 years. Given the circumstance, wouldn't that
present "extraordinary or unusual individual circumstances"?
That is, the demonstration of substantial potential for future
earnings while currently earning a solid six-figure income. This
is an important question because there are so many people in
similar circumstances.
(4) What is the process, if any, for evaluation of intellectual
property which the deceased may have owned, but been unable
to capitalize on because of their premature death? For example,
trademarks owned by an individual under which an individual
was going to establishing a business?
I hope that you have found these questions useful in defining what your role will be.
Your analysis and answers to these very important questions will affect the future
lives of the individuals involved, for many years to come.
I look forward to the pleasure of a reply.
Very truly yours
Individual Comment
Chestnut Ridge, NY