W000371
Saturday, November 17, 2001 10:45 AM
comments on the regulations for the victim compensation fund
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. 20530
Dear Mr. Zwick:
Thank you for the opportunity to comment in advance of the rulemaking now ongoing with respect to the September 11 Victim Compensation Fund of 2001. I am an attorney in private practice in New Jersey. I represent one family of a citizen murdered at the World Trade Center and thus have followed the passage of the law and the commentary thus far with respect to the regulations which will implement the Law. There are several areas of concern which I submit should be addressed.
First, it was clearly the intent of Congress and the President to establish a fund which would fully economically compensate those victims and families directly affected by the attack. The regulations must make clear that economic loss will be treated as it would in any lawsuit- that is, complete recovery for that item of loss must be made to those who choose to forego their right to litigate and to subrogate their civil right (at least with respect to all tortfeasors other than the terrorist murderers). Thus to place any cap, announced or unannounced in the regulations would be to thwart the intent of the legislation and to create challenges to awards and to the law's constitutionality. It is only fair to give the "personal representative" the ability to be assured that a decision to enter the fund, with all its implications for the government (avoiding long expensive and contentious litigation, clogging of the civil courts and national discord over the treatment of the victims and their families as well as the subrogation rights the government has preserved) and for citizens, will not be undermined or result in litigation for a choice ill made. Additionally, as many "personal representatives" will be seeking and getting legal advice (both 'free' and paid for) the regulations must be clear enough that competent advice regarding the weighty decision can be made and can stand in the light of hindsight, which is surely to occur if the Fund is not viewed as providing complete and fair compensation.
Second, with respect to non-economic loss, it is being repeatedly promised by Congressional members and legal "experts" that the intent of that portion of the Act refers to not only the decedent or the injured party but the survivors as well. As I am sure you are aware, different state laws could create differing claims in this regard. Thus this item must be treated in a liberal fashion without disparate treatment depending on where one lives. Whatever the final shape of the regulations, it must be clear what is available and what is being given up, in exchange for the submission of a claim to the Fund.
Because the law dictates that other compensation be deducted from awards, it must be made clear that the cost of obtaining whatever is considered 'other compensation', including at least premiums paid for life insurance be deducted from calculations before any award is reduced. Additionally, "other compensation" must be adequately defined and limited to items such as actual pay received from employers and not charity received or governmental entitlements paid.
I urge you to include some form of appellate review of any decision of a Hearing Officer by the Special Master at least in the final regulations. There is a perception that because some of the losses to be covered will be large, there may be a hesitancy to award complete relief. But clearly the intent of the Fund is to do so and your regulations must make clear that nothing other than that result will obtain. Additionally, the assertion that economists are not necessary to file a claim is not in the best interests of those claimants without to ability to present the issues inherent in an economic loss presentation. Finally,affording those who wish it a hearing with testimony is essential for the appearance of fairness, actual fairness, and the potential for providing some limited form of closure for our fellow citizens most directly and brutally affected by this tragic event.
Thank you for your attention and consideration.
Individual Comment
Cranford, NJ