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. THE NATIONAL CENTER FOR Victims of Crime January 18, 2002 Via electronic mail, facsimile and U.S. mail 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: Comments of Interim Final Rule September 11th Victim Compensation Fund of 2001 Dear Mr. Zwick: The National Center for Victims of Crime is the nations's leading resource and advocacy organization working on behalf of crime victims. Since our inception in 1985, we have worked in partnership with thousands of service providers and criminal justice agencies throughout the country to help victims of crime rebuild their lives. In the wake of September 11, we have been working closely with victims and victim service providers to try to cope with this unprecedented tragedy. The Fund was intended to compensate September 11 victims for their economic and non-economic losses. Given the cap on the airline industry's liability and the decision to force victims to chose between civil litigation and the Fund, it was also hoped that the Fund would be an attractive alternative to civil litigation. The Interim Final Regulations do not achieve either of these goals. As a result, many victims are skeptical of the Fund, and intend to either pursue civil litigation, or at least wait to evaluate how other claimants fare before choosing their own path. There is still an opportunity to make the Fund the program Congress intended it to be. In the final regulations, we hope that you will address the following fundamental issues of fairness, due process, and Congressional intent: I. The Interim Rule Provides for Unacceptably Low Compensation Levels. In creating the Fund, Congress intended to provide full compensatory damages to all eligible victims who opt into the program. The Act defines Mr. Kenneth L. Zwick January 18, 2002 Page Two: economic loss as " any pecuniary loss resulting from harm"; the only limitation being "to the extent recovery for such loss is allowed under applicable State Law." The definition for non-economic loss contains no restrictions or artificial caps of any kind. In fact, the Act sets forth a wide variety of elements which must be considered in determining non-economic damages. The limitations set forth in the interim regulations render these statutorily mandated elements meaningless. This "one-size-fits-all" approach violates the intent of Congress. Furthermore, the Interim Rule provides for unacceptably low payments. The figure for non-economic damages is a small fraction of what these victims could anticipate recovering in a civil lawsuit. Because claimants are required to waive their right to any civil recovery, the damages awarded should be more comparable to those that would be received in a civil lawsuit. II. The Collateral Source Rule Should be Modified in Ways That Are Fully Consistent With the Act. A. To the extent that collateral sources have to be deducted, this should happen before non-economic damages are added to the award. That is to say, collateral source deductions should be from compensatory damages only, and should not be deducted from non-economic damages under any circumstances. As the regulations are currently written, many potential claimants will get nothing because of the collateral source rule. Every eligible claimant should be guaranteed some minimum award. B. It is inconsistent with the Act to deduct pensions form awards. The Act creating the Fund explicitly states that a collateral payment can only be used to reduce an award if it was "compensation the claimant has received or is entitled to receive as a result of the terrorist-related aircraft crashed of September 11, 2001." Pensions are not compensation for a loss. Rather, a pensions is a financial asset, much like a savings account or mutual fund investment. It is an asset of guaranteed retirement earnings. The only way it would be equitable to deduct pensions form an award is if future lost earnings are calculated to include retirement earnings. III. Claim Forms Should Be Modified. A. The application forms for the Fund should clearly inform claimants that they are waiving important legal rights by participating in the compensation program. In a prominent place on the forms, it should be clearly stated that: 1) by participating in the Fund, claimants are waiving important legal rights, particularly the right to file a civil Mr. Kenneth L. Zwick January 18, 2002 Page Three: lawsuit; 2) claimants are encouraged to consult with an attorney; and 3) attorneys are available to represent them free of charge. B. The forms should be changed to be less intimidating for undocumented aliens and other foreign nationals. While the regulations seem to indicate that undocumented aliens and other foreign national will be able to file claims with the Fund, the forms themselves discourage such filing by asking for a social security number and a passport number. IV. The Regulations Should Be Modified to Ensure That Claimants Receive Certain Due Process Guarantees. Due process is required for any governmental function to earn public confidence. In several ways, the due process elements of this program under the Interim Regulations fall short. A. A plaintiff should not have to demonstrate "extraordinary circumstances." to take his or her case outside of the "presumptive award methodology." This methodology defeats congressional intent, and to require such a high showing is a denial of due process. Congress intended awards to be based on individual determination. There were more than 3,000 victims in this tr4agedy; more than 3,000 unique cases with circumstances which differ in important ways form the presumptive methodology. While the charts may be an apt starting point, any showing of unique circumstances (i.e., circumstances which differ in some way from the presumption. B. ALL award determinations must be subject to some type of review. Under the current Rule, only awards determined on the basis of documentation (i.e., a Track A filing) may be reviewed. Track B filings (determinations following a hearing) are apparently not appealable or subject to review. This is not due process. Congress intended for claimants to have the ability to offer evidenced, "including the presentation of witnesses" which necessarily entails a hearing. To deny claimants who opt for a hearing any opportunities to appeal determinations they believe to be unfair is a significant failure of due process. C. The presumption that hearings will not exceed two hours is rigid and arbitrary. This presumption will make it impossible for many claimants to present their full case. The damages portion of a wrongful death lawsuit can often take several days. There should be no presumed time limit for hearings, with the only qualifications being that hearing officers can refuse to consider testimony or evidence which is deemed to be Mr. Kenneth L. Zwick January 18, 2002 Page Four: cumulative or irrelevant. The right to a hearing must be a meaningful right. V. By Making a Claim, Victims Should Not Lose Their Right to Sue Terrorist, Terrorist Organizations, or Countries Sponsoring Terrorism. Although the Special Master has publicly stated that claimants will not give up their right to sue terrorists or supporters of terrorism, the regulations should be changed to reflect this. The Fund was created as a part of the Air Transportation Safety and System Stabilization Act, which was intended, at least in par, to protect the financial stability of the domestic airline industry. The Act could not have been intended to protect the financial interests of terrorists or terrorist organizations. The regulations should leave no room to interpret the Act as prohibiting suits against terrorist, terrorist organizations, or countries who sponsor terrorism. VI. Victims Who Have Suffered Latent, But Not Evident Harm, Should be Allowed to Make Claims. There is no rational basis for distinguishing these victims from victims with more immediate, obvious injuries. The regulations addressing the time limit on filing claims should be modified to say that claims can be filed within two years of the effective date of the regulations, or within one year after the victim discovers, or reasonably could have discovered, that he or she suffered an injury, whichever period of time is longer. Similarly, otherwise eligible victims who have suffered emotional and psychological harm that has resulted in physical manifestations should be eligible to make a claim. the unreasonable. Many people were simply unable to get to their medical care providers or had more pressing concerns in the immediate aftermath of the attacks. VII. The Regulations Should Make Clear That the Money Used to Pay Awards Under the Fund Should Not be Taken Out of Federal Victims of Crime Act (VOCA) Funds. While the National Center for Victims of Crime supports the concept of compensating victims through a fund like this one, such generosity should not be at the expense of millions of other crime victims served by the state compensation and crime victim assistance programs. The VOCA funds were intended to go to the states and should be used by the states. Mr. Kenneth L. Zwick January 18, 2002 Page Five: We hope that these comments will provide useful guidance as you create final regulations which more fully comport with the Act, and more importantly, fairly compensate all eligible claimants. Thank you for your attention to these matters. Sincerely, Comment by: THE NATIONAL CENTER FOR Victims of Crime Washington, DC September 11 Email: Date The local time and date when the message was written. 2002-01-18 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 dojN002536.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. 2002-01-18