1 20 12614 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 12:03 AM My son died in the WTC disaster. He left a wife and three young children. I have a real dilemma in answering the call for comments. It seems that the government is not a non partial observer here, but conveniently, is appointed to determine the compensation plan, and is suggesting to the families of the victims to sign over their right to appeal. This seems to be counter to all logic, I have always viewed the legal system to be, in some degree, a matter of gamesmanship, who has the best lawyer wins. And it seems that the government is advising the victims not to obtain counsel. Am I incorrect in my observation? I am seriously asking this question, not rhetorically. Shouldn't the victim's families have some idea of a dollar figure? What is the reasonable expectation? I don't think that alot of time has to be spent on form design here. There should be some straight forward method of determining who victims and families are, if we can't figure this out, then the whole process is brought to question. What is Fair Compensation? Well, there are some precedents for this question, what were the settlements in other disasters? How do they relate to this one? Somehow I believe that the trauma of this horrific event exceeds anything that we have experienced to date. It serves no purpose now to assign blame, but security measures from an Airline and Government poin of view were seriously lacking. Then there are issues with what I perceive to be the government's position on reducing any award by any collateral sources of income. My son chose to take the responsible route and funded some security measures, this was a cost that he bore, and was a factor in looking at possible alternatives to employment as it factored into his salary requirements. Now to penalize his family for his investment in insurance seems to send a message that says don't be fiscally responsible, if you sacrifice (by purchasing insurance) you will just provide justification for decreasing the amount of a settlement. Does a family suffer less because they have insurance? I can tell you this isn't the case at all. Another quandry that I have is one of trust, frankly, in the Government, to be really fair; this Airline legislation, why is no one worried about how much money is being moved to the Airlines? There seems to be so much concern about the money going to victim's families, where is this money coming from, well, of course, it comes from the citizens. But it is appropriated and managed by the Government, so the Government has this commitment to fund the victims relief, but is it in their interest to minimize the total payout? Won't it make their problem easier to find the funds if the relief to the families are minimized? So now we have a proposal to not go to court, to minimize the costs, the Government is the author of this proposal. Is this fair or self-serving? I have seen our Legal system work, it seems to be based on the adversarial system. Now we are pushing to remove this adversary process. Did the Airlines not have their lobbyists active during the legislative process? How was the dollar amount of the bailout arrived at? Was there give and take by the pro-Airline lobbyists and politicians? Was this as visible as the Victims Relief issue? There seems to be so many examples of civil cases where the original settlement offers are fractions of what our Legal System finally judged to be fair, will the Government offer be fair from the start? The Government seems to have set itself up as the agent of the Airlines in this issue. I would just like to be more confident that the proceedings will be fair. I think more information is necessary to make a decision. Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000001.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 12:21 AM Victim Compensation Fund > Dear Attorney General Ashcroft, > > The deaths on September 11th were the result of an attack on America. > Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. > Individual Comment Scottsdale, AZ September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000002.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 12:43 AM Fwd: needs immediate attention In a message dated 11/26/2001 2:26:53 PM Pacific Standard Time, RWBUG writes: > Dear Attorney General Ashcroft, > > The deaths on September 11th were the result of an attack on America. > Please do not discriminate against the unmarried partners of September 11th > victims. All unmarried partners, gay or straight, young and old and their > dependents should be eligible for compensation. > Individual Comment Attachment 1: needs immediate attention Today, Monday, November 26th, 2001 is the last day for public comment regarding the Justice Department's September 11th Victim Compensation Fund. Fundamentalist Christian groups have been lobbying hard to EXCLUDE gay and lesbian partners from receiving compensation from this fund if they lost a partner on September 11th. If I were killed on September 11th and you believe my surviving partner should be entitled to the same benefits as heterosexual couples, please email Attorney General John Ashcroft TODAY and tell him to include the unmarried partners of September 11th victims as eligible recipients of the September 11th Victim Compensation Fund. Sample text below: Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. Your name. Please send you email to the following address: victimcomp.comments@usdoj.gov Forward this message far and wide TODAY September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000003.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 1:21 AM Attachment 1: Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. Sincerely, Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000004.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 2:17 AM Compensation rights Dear Attorney General Ashcroft: The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents contribute to this country equally and have just as much right to compensation as any other American. Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000005.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 2:20 AM Justice Department's September 11th Victim Compensation Fund Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000006.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 8:32 AM New York Workers' Compensation offset To: Kenneth L. Zwick: I am the president of the Injured Workers' Bar Association, an organization of New York lawyers that represent claimants in propceedings before the NY Workers' Compensation Board. We are concerned about the question of whether payments from the Victim Compensation Fund will be considered third-party settlements under the provisions of Section 29 of the New York Workers' Compensation Law. As the attached analysis shows under current law we believe such payments would be considered third-party settlements subject to advance approval by the WC insurance carrier. I strongly believe that when regulations are drafted for the Victim Compensation Fund this issue be considered, and appropriate action taken to protect the victims rights to payments from NYS Workers' Compensation carriers. Thank you. Individual Comment Attachment 1: Third Party Consent and the Workers' Compensation Claims Arising out of the September 11 Terrorist Attacks Shortly after the attacks on the World Trade Center and the Pentagon the Congress passed federal legislation to address concerns about the economic impact of possible personal injury litigation arising out of the attack. Signed into law on September 22, 2001 the September 11 Victims Compensation Fund [Title IV of the Air Transportation System Stabilization Act, H.R. 29826] allows the persons who were injured in the attacks or the survivors of those killed to waive their right to file a personal injury lawsuit and in return receive a lump sum payment from the federal government. Review of the Act and such analysis as has been published so far reveals that no one has clearly addressed the possible legal effect of such a waiver on a New York State (or other state) workers' compensation claim. The American Trial Lawyers Association and the New York State Trial Lawyers Association have announced a laudable pro bono effort to assist anyone filing a claim under the federal law. A new association called Trial Lawyers Care, Inc. has been formed for this express purpose. In our view it is critical, however, that any attorney who represents or assists a person filing such a claim first investigate fully whether a workers' compensation claim has been filed or may be filed, and if so whether the workers' compensation insurance carrier will consent to the waiver of the right to sue. Regardless of whether the federal waiver program accounts for the existence of an actual or potential workers' compensation benefit by an offset or other non-duplication of benefits language, in our opinion in New York the insurance carrier's statutory rights to approve a third party settlement and recover their possible lien will be unaffected. Under §29 of the New York State Workers' Compensation Law, the workers' compensation carrier has an absolute lien on any benefits obtained in a third party action up to the limit of their liability for both indemnity and medical benefits paid. If a claimant with an actual or potential third party action seeks to settle that action by compromising their claim, they must obtain the consent of the workers' compensation carrier to do so. Should the claimant fail to obtain the carrier's consent to settle, they will be absolutely barred from receipt of any and all further workers' compensation benefits. In our view by executing the waiver of a possible third party claim, a claimant may be found to have prejudiced the lien rights of the workers' compensation carrier and may in consequence lose many thousands of dollars of workers' compensation payments over the rest of their lives. The acceptance of the waiver in this situation is basically the same as settling a regular personal injury case arising out of a compensable accident. The mere fact that the injury or death occurred from the attack at the World Trade Center or Pentagon should not change any of the obligations of the attorney representing a claimant or the rights of the workers' compensation carrier. Please note further that under Section 29 of the Workers' Compensation Law when a claimant chooses not to sue a tortfeasor, the workers' compensation carrier has a right of subrogation. This factor makes the argument all the more compelling that a claimant must obtain the consent of the compensation carrier before waiving the right to bring a lawsuit because such waiver compromises the carrier's right of subrogation. If the requirements of §29 are not complied with the consequences to the injured worker can be devastating. A surviving spouse and children could receive as much as $400 per week. In the case of a 32-year-old widow who lives another 50 years, the failure of that widow's counsel to obtain the consent of the workers' compensation carrier to the waiver can result in loss of more than $1,000,000.00 over the rest of her lifetime. We realize that some practitioners might takes the position that waiving one's right to sue to receive the federal payment is not the equivalent of settling a third party action as contemplated in §29 of the Workers' Compensation Law. Of course it is possible that in the future a court may rule that accepting the waiver was not the same as settling a person injury lawsuit, but we advise our members not to take this risk without first thoroughly protecting their client's interest. If any attorney wants to pursue the position that money paid out under a federal victims program is not the equivalent of settling a third party action, the attorney could do so by first getting the consent of the carrier to the waiver and paying or putting in trust any money that the workers' compensation carrier claims as a lien. As part of that consent agreement the attorney should include language in the consent letter that it is the attorney's position that consent does not have to be obtained and that he will litigate the matter before the Workers' Compensation Board and/or in the courts. The attorney should also obtain in the consent letter a guarantee that the carrier will pay back any lien taken as part of the consent and that the carrier will reinstate any benefits not paid because they were taking "credit against a third party recovery". This method will protect both the claimant and the attorney should a court eventually rule that the monies paid out under the federal program were not the equivalent of a third party action. It should go without saying that if someone proceeds with a regular lawsuit as a result of the September 11 attack then the provisions of §29 of the Workers' Compensation Law must be complied with prior to any settlement. Clients should be advised that the workers' compensation carrier may assert a lien against the proceeds of the Federal recovery and reserve the right to take an offset for the claimant's net recovery against any future claim for compensation benefits. If this is the case, then it may not be worthwhile for the claimant to give up his/her right to sue, because no benefit would actually accrue to the claimant since the Federal recovery would simply become an advance payment of compensation--deferring the carrier's obligation to make payments to the claimant for a period of several years. Unfortunately, the federal legislation establishing the September 11 Victims Compensation Fund did not explicitly deal with the issue of workers' compensation carrier liens. The legislation does contain offset language that appears to discount any federal award by actual or potential workers' compensation indemnity benefits. This is not enough, in our view, to overcome the lien rights under §29 since they attach to medical as well as indemnity benefits. Perhaps Congress will deal with this issue at some future time but for now, as attorneys advise victims or survivors, a foremost concern should be determining and properly protecting the workers' compensation benefits of the victims. For more information or to locate a qualified workers' compensation attorney from any part of New York State visit our web site at www.injuredworkersbar.org . Article researched and written by members and . Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000007.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 9:52 AM Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. I hope that in this time of sorrow, bigotry is set aside. In this time of need, Kindness only matters. Thanks. Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000008.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 10:00 AM 9/11 victims fund Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. Individual Comment Alameda, CA September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000009.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 10:28 AM Victim Compensation Attachment 1: Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. If we do not compensate everyone fairly in spite of living or loving circumstances, Osama Bin Laden and his followers would applaud this kind of discrimination. --- --- Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000010.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 10:28 AM Sept.11, 2001 Dear Attorney General Ashcroft, Te deaths on September 11th were a result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation Sincerely, Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000011.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 11:09 AM please treat all families equally Attachment 1: Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. My partner and I are raising our daughter together and if I were to have been killed in the Trade Towers on September 11, they would be suffering substantially, both emotionally and financially. Please treat all families equally. Sincerely, Individual Comment Berkeley, CA September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000012.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 11:14 AM FW: September 11th Victim Compensation Fund of 2001 TO: Kenneth L. Zwick, Director, Office of Management Programs, U.S. Department of Justice FROM: widow of Fire Department of New York RE: September 11th Victim Compensation Fund of 2001 Dear Mr. Zwick: My comments relate to the implications of the two paragraphs copied below. It is in the best interest of the victims families that compensation be disbursed on the basis of objective, equitable formulas that take into the number and ages of dependents, future educational expenses for children, and regional costs of living. The data the go into these determinations, and the presumptive awards, should definitely be communicated to the families to aid in their decisions to file. Knowledge is empowering, secrecy is demoralizing. (An unfortunate side effect is that speculation about these figures by the media tends to generates much unwanted "advice" and in some cases "envy" directed toward the families) My husband worked for the for 17 years, rising to the rank of Lieutenant of . We have two young children, and I also work full-time. My husband's salary as a civil servant was modest, and he needed to work a second job to supplement our incomes in order to live in the New York City area (we reside in the Bronx). Despite his low salary, he took great comfort in knowing that his benefits were outstanding. He paid the maximum into optional life insurance, deferred compensation retirement, and disability programs. He planned very well "for the future," with the knowledge that something adverse could happen to him. I am very concerned that compensation from "collateral sources" that my husband procured on our behalf, through the very hazardous nature of his work and good financial planning, will be subtracted from funds awarded to our family. My children are 6 and 8, and there is a long road ahead of us with unforeseeable expenses. I expect all families to be treated fairly, and not penalized for benefits they earned prior to the tragic events of September 11. Sincerely yours, Individual Comment New York, NY Extracted from Victim Compensation Fund summary: Topic #6: Nature and Amount of Compensation. Section 405(b) of the statute indicates that the Special Master shall determine the amount of compensation based on "the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant." Yet each of the perhaps thousands of determinations must be made in a very short period of time. Moreover, such determinations should be founded on consistent and clear principles that treat each claimant fairly. The Department invites comments that identify the practical means to achieve these results all within the very short time period that Congress has permitted. Among other topics, the Department would welcome comment on whether and how schedules or statistical methodologies should be developed and used in reaching a determination for each claimant within the mandated time period. In addition, comments are welcomed on whether publication of such schedules or hypothetical or presumptive awards for classes of individuals would assist potential claimants in determining whether to file. Collateral Sources: Section 405(b)(6) provides that the Special Master shall reduce the amount of compensation by the amount of the collateral source compensation the claimant has received or is entitled to receive as a result of the terrorist-related aircraft crashes of September 11, 2001. The Department invites comments on how to determine what constitutes a "collateral source" for purposes of this provision, and other related issues. For example, the Department appreciates the strong policy reasons for excluding charitable contributions from the definition of "collateral sources" and invites comment regarding whether the Act indeed permits the Department to exclude such contributions from the definition. Similarly, the Department invites comments on whether "in kind" and/or material contributions could or should be considered collateral sources. Finally, the Department invites comments on how to determine whether potential future collateral source payments are ones that individuals are "entitled to receive" for purposes of Section 405(b)(6). e-mailed on 11/21/01 to: Kenneth L. Zwick, Director, Office of Management Programs, Civil Division, U.S. Department of Justice, Main Building, Room 3140, 950 Pennsylvania Avenue NW, Washington, DC 20530 September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000013.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 11:46 AM Comments on Title IV, H.R. 2926 To Whom It May Concern: I am a volunteer facilitator working with the New York City Bar Association on behalf of victims and survivors of the 9/11 disasters. A common question among those who are involved is how, and to what extent, compensation from the September 11th Victim Compensation Fund will be "offset" by other compensation and/or support claimants have or will receive pursuant to these tragedies. This seems to be a key issue that could greatly affect a person's decision of whether it makes sense to forego certain legal rights by participating in the Fund. For example, one possible scenario is that a claimant who chooses to participate in the fund is required to present evidence of his or her losses, as well as any other sources of compensation he or she has or will receive, prior to obtaining a judgement award from the Fund. In this instance, the amount awarded for the person's loss is directly affected by the additional compensation information. A second scenario is that a claimant who participates in the fund presents evidence of loss to obtain a judgment award, but is not required to present evidence of other compensation received until after the award is determined. Once the award is determined, the amounts the claimant has previously received are deducted from the award. In the first example, a person might be less likely to forego his or her legal rights for suit because it permits the receipt of earlier benefits to influence the extent of that person's loss. In the second example, a person's loss is determined independently without regard to the level of support previously received. This seems to be the more equitable procedure. In the end, obviously, Congress will make the ultimate determination of what the procedures will be. But, in the interim, any information is greatly appreciated. Regards, Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000014.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 11:49 AM Sept 11th Fund Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. Thank you for your consideration in this matter. Sincerely Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000015.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Public Comment Dear Mr. Zwick: You invited the public to comment on the Victims Compensation Fund. I am not just a member of the public, but one of the victim’s family members. My husband, , worked in Tower One of the World Trade Center and was killed on September 11, leaving behind me, his wife of 7 ½ years and two young sons, , age 3 (as of Nov. 8) and - only 6 days old at the time of the attack. My husband should have been home bonding with his new baby; instead, he was at work since 7 that morning. He was such a dedicated and hard-working young man. Look where it got him. I know that you have received hundreds, if not thousands of individual comments regarding the Fund; however, I’d like to emphasize a few points that are important to me and many other victims’ families. COLLATERAL SOURCES First, life insurance should NOT be deducted from any fund payments. My husband and many others were responsible estate planners and had the foresight to purchase additional life insurance in an effort to plan for their heirs. These men and women sacrificed and used their hard earned money to provide for their families. That money could have been used towards buying another car or to take a much deserved vacation; instead, our spouses chose to prepare for the future and take care of their families. Please do not lose sight of that fact. Second, money donated by our fellow Americans to the various charities for the vicitms’ families should NOT be deducted from any fund payments. These charitable contributions were generously made as a goodwill gesture and provided a form of healing for both donor and recipient – it was the only way many people across the country knew how to help their fellow brothers and sisters. What a beautiful gesture – please don’t denigrate this wonderful symbol of patriotism and love. In addition, those legally responsible for this disaster should not benefit from the charity of the American public. OPPORTUNITY TO BE HEARD Each family deserves the right to be heard on an individual basis. Every family’s situation is different and we should not be lumped into one group. Please give us the opportunity to present evidence through our own testimony and the testimony of expert witnesses. RIGHT TO APPEAL AND FORM OF PAYMENT Any and all fund payments should be distributed as one lump sum which we will be able to invest in a manner suggested by our professional financial advisors. In addition, we should also have the opportunity to appeal a decision which we think to be unjust. The payment we receive from the fund will significantly affect us for the rest of our lives. By choosing to forgo separate litigation against the airlines, we are placing our lives in the hands of the special magistrate who should not have powers greater than a trial level judge, whose decisions are appealable. YEARS TO BE CONSIDERED Individuals of my husband’s age would be required to work until at least age 68 in order to receive full Social Security benefits. Moreover, since most individuals are no longer covered by defined benefit plans by their employers, it is necessary for them to work longer in order to save the funds necessary to provide an adequate income in their retirement. Accordingly, it is important that the award be determined by the earnings of the deceased over his entire working life to age 68 as it would have been had he survived. Mr. Zwick, thank you for giving us the opportunity to be heard. We are living through the most horrific time of our lives and this at least gives us some form of comort, or control over our future – the ability to have some input on a bill that will affect us for the rest of our lives. Please remember us and our young families during these next few weeks. Sincerely, Individual Comment Oceanport, NJ September 11 Email: Date The local time and date when the message was written. 2001-11-30 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000016.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-30 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 12:24 PM Disgraceful Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. Hatred should not be factored into this incredible tragedy in any way shape or form. Please be fair and loving to all surviving American families suffering during these volatile times. Sincerely Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000017.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 12:46 PM Justice Department's September 11th Victim Compensation Fund Dear Attorney General Ashcroft, The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of September 11th victims. All unmarried partners, gay or straight, young and old and their dependents should be eligible for compensation. Individual Comment San Francisco, California September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000018.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 12:43 PM Government Funding for Victims of Sept. 11 Dear Attorney General Ashcroft, I hear somewhere that this is late in the day for us to send comments, but surely you will consider all comments with a spirit of compassion. This is particularly obvious since some of the heroes of the day were gay and some of the people working in the Twin Towers were gay or lesbian. The deaths on September 11th were the result of an attack on America. Please do not discriminate against the unmarried partners of these victims. All unmarried partners, gay or straight, young and old, and their dependents should be eligible for compensation. Individual Comment Hermosa Beach, CA September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000019.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. Tuesday, November 27, 2001 1:00 PM Attachment 1: Comments on September 11 Victims Compensation Program The Comments of the Association of the Bar of the City of New York are attached. Attachment 2: November 26, 2001 VIA FACSIMILE (301-519-5956) Kenneth L. Zwick. Director Office of Management Programs U.S. Department of Justice Civil Division Main Building, Room 3140 950 Pennsylvania Avenue, NW Washington, DC 20530 Re: September 11 Victim Compensation Program Dear Mr. Zwick: The Association of the Bar of the City of New York, the City most affected by the September 11 terrorist attacks, welcomes the opportunity to respond to the Request for Public Comment, published on November 5, 2001, relating to the above program established to "provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001." We recognize the enormity of your challenge in fashioning rules to implement this complex but vitally necessary procedure. The Request for Public Comment raises a number of important issues. However, given the abbreviated response time, our comments will be limited to (1) claimant eligibility; (2) procedures for determining the amount of compensation to be awarded; and (3) procedures for hearing and presentation of evidence. We will also comment on issues that may arise by virtue of the possible applicability of New York law under the regulations. The comments presented below are informed by the general approach and policy set forth in the Request for Public Comment, which emphasizes that: "[w]ithout having information about how the compensation program works,. . . individuals might not be able to assess whether the compensation program is a viable alternative to continuing their litigation," and consequently, "potential claimants have an interest in knowing as soon as possible how the program is likely to operate in their circumstances." (Comment, p. 8). The regulations promulgated to administer the compensation program should adopt procedures that enable any individual considering participation in the program to determine his/her eligibility and to understand at least the approximate range of his/her potential award before waiving any litigation rights.*1 1. Claimant Eligibility The Act's stated purpose is "to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001." Act, §403. Claimants include individuals (excluding participants in the attacks) who were present "at the time, or in the immediate aftermath, of the terrorist-related aircraft crashes" and who "suffered physical harm or death as a result. . . ." Id. at §405(c)(2)(A). In the case of a decedent, "the personal representative of the decedent" is the person who is eligible to file the claim. Id. at §405(c)(2)(C). The Act further provides that "[n]ot more than one claim may be submitted. . . by an individual or on behalf of a deceased individual." Id. at §405(c)(3)(A). The Act does not contain a definition of the term "personal representative". Consistent with the Act, the executor or administrator of a deceased individual, duly appointed under state or other applicable law, should be the only individual authorized to file claims on behalf of the decedent, absent a showing that obtaining such a court appointment in a timely manner is not feasible. This approach enables potential claimants to determine their eligibility to file claims with certainty before opting into the program (which is of paramount importance due to the statutory waiver of civil litigation rights), and avoids embroiling the Special Master in disputes among competing, self-appointed representatives of the decedent. For the same reasons, and again subject to exception for good cause shown, all awards should be made to this court-appointed representative and thereby subject to the supervision of the appointing court with respect to distributions of the award to the decedent's relatives. Escrow payments can be used, as suggested in the Request for Public Comment, if an executor or administrator is not appointed by a court of competent jurisdiction within the time provided by the Act for the filing of claims. The regulations should provide a method for proceeding under the Act in those situations where it would not otherwise be necessary for a personal representative to be appointed, such as, for example, where all property was held in joint names. In such situations where only adults are involved, they could provide for the decedent's distributees and the personal representative named in the will (if any) to designate one or more persons to act for them, and that person or those persons could be the personal representative for purposes of the Act. In situations where the personal representative and the distributees cannot agree as to whether to execute the waiver required to proceed under the Act (see p. 5, below), the regulations probably have to prevent either side from so proceeding, absent a ruling to the contrary by a state court. 2. Nature and Amount of Compensation The Act requires claimants to state "the amount of compensation sought" on the claim form, and it requires that all claimants must waive their rights to file or participate in civil litigation for damages sustained as a result of the terrorist attacks. Act, §§ 405(a)(1), 405(c)(3)(B). Consequently, individuals considering whether to participate in the statutory compensation program must be able to calculate the amount of potential awards, at least within an approximate range, in order to make reasoned, informed decisions about whether to opt into the program or to pursue litigation. To achieve this objective, the regulations should establish a grid that calculates awards, to the extent feasible, through the use of formulas that give similar amounts to claimants similarly situated. This approach will enable potential claimants properly to evaluate their options before filing a claim. It will also expedite the process, assuring that awards are determined within the designated 120-day statutory period, obviating in most cases any need for extensive hearings and evidentiary submissions. It will also promote both the fact as well as the perception of fairness, minimizing the risk of arbitrary award distinctions between similarly situated claimants. There are practical and statutory limits to the completeness and rigidity of such a grid, however. It is not possible to represent fairly, in advance of any filings or hearings, all possible variations in the "harm to the claimant, the facts of the claim, and" -- especially -- "the individual circumstances of the claimant," which the Act requires be the bases of the "amount of compensation to which the claimant is entitled." Act, § 405(b)(1)(B)(ii). Nor would a rigid prohibition on variations in awards, based on the claimants' respective circumstances, be consistent with the value America places on the unique dignity and worth of each individual. We should not treat the thousands of victims of the terrorists as faceless and fungible, unworthy of particularized decision-making. Thus the grid should provide presumptive parameters for awards, but should not preclude the Special Master from varying awards within those parameters (or even outside the parameters, in extraordinary cases) to reflect "the individual circumstances of the claimant." Similarly, while a well developed grid should minimize the number and length of evidentiary hearings, thus helping achieve the Act's purpose of affording prompt compensation, it cannot preclude the right of a claimant under the Act "to present evidence, including the presentation of witnesses and documents. . . ." Act, § 405(b)(4)(B). The Act provides for awards to individuals who suffered "physical injury" as a result of the September 11 terrorist-related aircraft crashes. Act, § 405(c)(2)(A)(ii). No bright-line test (e.g., "serious injury") should be applied once the threshold of "physical injury" is established, though the degree and permanency of the injury necessarily should be a significant factor in determining the award amount. With respect to latent injuries, should such an injury manifest itself between the time a claim is filed and the award issued, we believe that the claimant should be permitted to amend the claim to assert such injury. The Act provides no express guidance as to the size of awards, and plainly the regulations must address this subject in order to establish an award grid. By pointing to "applicable State law" in defining the types of recoverable "economic loss," Act, § 405(5), Congress has pointed to one logical source for the Special Master's decision-making. Compare Act, § 408(b)(2), providing, in the context of the federal cause of action against air carriers, that the substantive law for decision "shall be derived from the law, including choice of law principles, of the State in which the crash occurred. . . ." However, there is not a direct correlation between the purposes and provisions of the Act and the operation of New York law as it would apply to lawsuits for injuries or deaths in analogous circumstances. Accordingly, while the Special Master may be able to make some use of state case law in formulating awards, the regulations cannot adopt state law whole cloth. In fact, the regulations need to address some issues that otherwise will arise by reason of the application of the New York law governing the estates of decedents and their survivors. We now summarize some of those issues. Section 403 of the Act states that the purpose of the Act is to provide compensation to persons injured and to relatives of those who were killed as a result of the September 11, 2001 terrorist related aircraft crashes. Compensation may be awarded for both economic loss and noneconomic loss. Section 402(5) of the Act defines economic loss as "any pecuniary loss resulting from harm ... to the extent recovery for such loss is allowed under applicable State law". It is not restricted to loss suffered by a "claimant". However Section 405(b)(1) of the Act requires the Special Master to determine the amount of compensation to which a claimant is entitled based upon the harm "to the claimant." Reading Sections 402(3), 405(a)(1) and 405 (c)(2)(A) of the Act leads to the conclusion that, in the case of decedent victim, the claimant is the decedent. The regulations must therefore determine whether only damages recoverable by the decedent (or the decedent's estate) under New York law are recoverable under the Act or whether it is also possible to recover damages that New York law would allow to the family of the decedent. We urge the latter approach. Under New York law a decedent (or, more properly a decedent's estate) can only recover in a personal injury action under section 11-3.3 of the Estates, Powers and Trusts Law (the "EPTL") for damage, such as pain and suffering, medical expenses, etc, suffered by the decedent prior to death. No recovery may be had under that section for post-death damages, other than funeral expenses. Any recovery under that section accrues to the decedent's estate and passes with his other property under his will or, if he has no will, to his intestate distributees. The right to recover for post-death damages, such as loss of future earnings, must be asserted in a wrongful death action under EPTL 5-4.1 - 5-4.6. This is an action brought on behalf of the decedent's distributees by the decedent's personal representative. Any recovery belongs to those of the distributees who suffered damage by reason of the decedent's death, and not to the decedent's estate. The measure of damages is the loss suffered by the distributees, and not the loss suffered by the decedent. If a personal representative fails to bring a wrongful death action, the distributees can have an administrator appointed by the court to bring the action on their behalf. The action belongs to the distributees and the personal representative who brings it on their behalf acts, in effect, as an agent or trustee for them. The regulations should clearly provide that damages recoverable in a wrongful death action in New York will be awarded (even though, technically, they are not compensation for harm to the claimant, i.e. the decedent). This result is faithful to the express purpose of the Act "to provide compensation to . . . relatives of a deceased individual" killed in the attack. Act, § 403. The regulations also should provide for the Special Master to identify the basis for the grant of the various portions of the award so that the local probate court can determine the portions properly allocable to the distributees and to the decedent's estate. (Parenthetically, the portion allocable to the distributees as recoverable in a wrongful death action would not be subject to estate tax.) The regulations also should deal with the problem of the dual rights created by New York law, in the content of the waiver requirement of Section 405(c)(3)(B) of the Act. Since the right to the wrongful death action is vested in the decedent's distributees, while the right to the pain and suffering action is vested in the decedent's estate, it would seem that a waiver by the distributees who would be entitled to bring the wrongful death action as well as by the personal representative should generally be required. Where one or more of the distributees is a minor who does not have a court appointed guardian, the regulations could adopt virtual representation concepts, such as those of section 315 of the Surrogate's Court Procedure Act of the State of New York, or permit waiver on the minor's behalf by a natural guardian, such a parent. Every effort should be made to avoid the need to have a guardian appointed by a court for this purpose. Since any award would be payable to a personal representative (and where minors are involved, a court appointed personal representative should be required), the minor's rights would be safeguarded by the local court which appointed the representative. In a wrongful death action, recovery by the distributees of a firefighter or police officer can be barred by the so-called "fireman's rule", which prohibits recovery when otherwise actionable negligence resulted in a hazard that the firefighter or officer was employed to confront and the death resulted from that hazard. (The same rule prevents a living fire or police officer from recovering for injuries in such a situation.) Application of the fireman's rule is not appropriate under the Act, since the rule is a defense to a negligence action, and under Section 405(b)(2) of the Act negligence is not to be considered. The regulations should provide that the fireman's rule will not bar a recovery under that Act. Contributory negligence also should not be considered. The Act appears to require, by its definition of economic loss, that distinctions in the awards to claimants be drawn in part based on the differing levels of, inter alia, their "earnings and other benefits related to employment. . . ." Some distinctions between claimants may also be appropriate with respect to "non-economic losses," such as for pain and suffering. But we suggest that there should be no distinctions in the pain and suffering component of awards to decedents. The amount of compensation for pain and suffering should not turn on such factors, for example, as whether a decedent was or was not able to reach his family by phone after a crash or hijacking, and was thought on this or some other basis to have suffered or not suffered an instant death or a prolonged anticipation of death. Such distinctions among the deceased victims would neither appeal to our sense of fairness nor respect the dignity of the victims. Here is one situation, then, in which we recommend as a matter of policy that the grid establish a fixed or generous amount, not subject to variation. The Act requires the Special Master to reduce the amount of any award "by the amount of the collateral source compensation the claimant has received or is entitled to receive" as a result of the terrorist attacks. Act, § 405(b)(6). This section does not specify whether charitable contributions received by claimants should be treated as collateral source compensation. We urge that charitable contributions not be treated as collateral source compensation, consistent with New York law. We understand that this point has been fully briefed for you in the joint comments submitted by the Governor and Attorney General of New York State and the Mayor of the City of New York. The regulations also should clarify that collateral source compensation received by persons other than the claimant (i.e., the decedent's estate) will not reduce awards. For example, reductions for life insurance and death benefits should be restricted to insurance and benefits that are payable to the decedent's estate, rather than to a spouse or other survivors. A different reading would treat unfairly between survivors of a decedent who invested in a life insurance policy, the proceeds of which would go to reduce an award, and a decedent who invested in stock, the value of which would not go to reduce an award. If, contrary to our recommendation, the regulations are written to require a reduction of awards for collateral compensation to persons other than the decedent's estate, then the regulations should distinguish between benefits that are payable to those entitled to receive an award and benefits that are payable to others. For example, an award to a surviving spouse under the Act should not be reduced by the proceeds of a life insurance policy that are payable to a sibling who is not one of the decedent's distributees. The regulations should further provide that the claim of a domestic partner of a deceased should have the same weight as that of a spouse, to the extent permitted by applicable law. In addition, a domestic partner should be entitled to serve as a personal representative under the Act. 3. Procedures for Hearing and Presentation of Evidence As stated above, adoption of the aforementioned approach would permit resolution of many claims on written submissions, reducing the need for evidentiary hearings before the Special Master, though preserving the statutory right of a claimant to a hearing and the right to present witnesses, if the claimant so requests. Hearing officers may utilize different means of speeding the hearing process, such as by requiring, in appropriate cases, direct testimony to be submitted in writing and cross-examination to be limited to instances in which credibility has to be determined. Claimants who cannot afford counsel should be referred to attorneys who have registered with local bar associations or trial lawyers associations to represent such claimants on a pro bono basis. The Special Master should provide for claimants to be able to consult with accountants or other experts as necessary to prepare a claim. While pro bono counsel should be available to claimants, claimants should be free to retain counsel of their own choice. Any attorney appearing on behalf of claimants before the Special Master should obtain from their clients, as part of their retention, an acknowledgement that the claimant has been advised that it is not necessary to retain counsel in order to make a claim or appear before the Special Master and that there are bar associations providing free legal counsel, a list of which can be obtained from the Special Master's office. The attorney must also fully disclose, in writing, the amount or means of calculating attorney's fees and disbursements and who is to provide capital outlays anticipated in advance of an award. Finally, the regulations should provide that fees be reasonable as recognized by professional rules of ethics. The information and evidence required to state a claim should be plainly stated in the form to be developed for the program. The form should be available in English, Spanish and other languages needed by more than a nominal number of claimants. The evidence required to support a claim should not exclude potential claimants by reason of citizenship or residency status in the United States. Hearing officers should review each claim form to determine whether it is complete before submitting it to the Special Master. Until the form is determined to be complete and is so submitted, the claim should not be deemed "filed" for the purpose of triggering the Special Master's 120 day decision period (Act, § 403(b)(3)), or waiving the claimant's right to sue in court (Act, § 405(e)(2)(B)(i)). No claim should be denied with prejudice on the basis of an incomplete form. In addition, should the Special Master determine at any phase of the proceeding that a claimant is not eligible for purposes of § 405(c) of the Act, the claimant should have the right to opt out of the procedure, thereby permitting the claimant to pursue litigation. Claimants should be permitted to designate venue, and there should be hearing tribunals established in, New York City, Washington, D.C., Boston and Los Angeles. * * * The Request for Public Comment notes that the regulations to be issued by December 21 could be promulgated as "internal final" rules, making possible an additional round of public comment concerning whether such regulations should be amended. The Association strongly supports this procedure, and looks forward to submitting further comments in response to these regulations once issued. In addition, committees of this bar association would be happy to provide further assistance as you develop and implement these rules. Very truly yours, ____________________ *1 In response to an inquiry in the Request, we are advised that to date four claims have been filed in the Southern District of New York seeking damages arising out of the September 11 terrorist attack. Comments of: Association of the Bar of the City of New York September 11 Email: Date The local time and date when the message was written. 2001-11-27 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojA000020.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-11-27