N002632
United States Senate
January 17, 2002
Mr. Kenneth Feinberg
Special Master of the Sept 11th Victim Compensation Fund
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Mr. Feinberg:
We congratulate you on your appointment as Special Master of the September 11th Victim
Compensation Fund (the "Fund"), and appreciate your hard work in publishing Interim Final
Regulations governing the Fund.
Although no amount of compensation can replace a lost loved one, we believe that final rules
governing the Fund will be critical to fulfilling the intent of Congress to fairly and promptly
compensate the September 11th victims and their families. Generally, the Interim Final
Regulations follow this Congressional intent. There are three areas of the Interim Final
Regulations, however that we believe should be improved to fairly consider the individual
circumstances of each victim to determine just compensation - the compensation for non-
economic losses, the calculation of economic losses, and the standard for hearings.
Specifically, we are concerned that the Interim Final Regulations may impose an arbitrary dollar
limit on non-economic damages by inappropriately basing such damages on other federal
programs that limit payments to $250,000. The Fund's statute regarding non-economic damages
is quite clear. It defines the following elements as compensable non-economic losses under the
Fund:
[L]osses for physical and emotional pain, suffering, inconvenience, physical impairment,
mental anguish, disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of domestic service), hedonic
damages, injury to reputation, and all other nonpecuniary losses of any kind or nature.
The types of losses enumerated in this provision were chosen deliberately. Congress intended
that each be fairly considered and that victims and their families be compensated for all elements
that are applicable to them.
Concerning economic damages, we urge the Department of Justice to ensure that the calculations
of the presumed awards are based on accurate data for relevant populations. Any estimates of
likely lost income used by the Department should replicate, as closely as possible, the likely
career earnings tracks of the victims. Moreover individuals and families should be given an
opportunity to demonstrate that the Department's estimates do not accurately portray the likely
earnings path of the victim on whose behalf they are filing a claim. If this demonstrations is made,
the economic damages should be adjusted accordingly.
Finally, the Fund's hearings should include a meaningful opportunity to demonstrate that the
presumed award does not adequately compensate the victims and families or the damages they
have suffered. If this showing is made, the award should be adjusted to provide the appropriate
compensation. The Interim Final Regulations call for modification of the presumed award only
in "extraordinary circumstances." This exceedingly high burden of proof appears to unduly limit
the ability of claimants to obtain appropriate adjustments. In addition, the Interim Final
Regulations limit the duration of the hearings to generally not more than two hours.
We believe that a meaningful opportunity for a claimant to present information or evidence necessary
to a full understanding of the claim should not include proof of "extraordinary circumstances" to receive
fair compensation, and should not generally limit a hearing to an unreasonably short duration, such as
two hours.
By amending the final rules to improve these three areas, the Fund can be implemented in a way
that meets the intent of Congress to provide fair, fast, and full compensation for victims and their
families that truly reflects the losses they suffered in the horrific events of September 11th and
avoids lengthy legal actions. This is in the best interest of all concerned, and we trust that you
will revise the regulations to ensure that this Congressional intent is carried out.
We look forward to working with you to deliver fair and prompt compensation to the September
11th victims and their families.
Sincerely,
PATRICK LEAHY EDWARD KENNEDY
U.S. Senator U.S. Senator
CHARLES SCHUMER HILLARY CLINTON
U.S. Senator U.S. Senator
cc: The Honorable John Ashcroft
Attorney General