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. Congress of the United States Washington, D.C. 20515 January 28, 2002 Mr. 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 Re: Interim Regulations Promulgated December 21, 2001 for P.L. 107-42 Dear Mr. Zwick: We are writing today to offer comments and feedback on the Interim Regulations ("Regulations") governing the September 11 Victims Compensation Fund ("Fund"). While we recognize the complexity of this unprecedented undertaking, we believe the Regulations are at odds with the Air Transportation Safety and System Stabilization Act ("Act") and, in certain respects, are contrary to the intent of Congress when it established the Fund. As you know, Congress devised the Fund to provide fair economic and non-economic compensation for those persons who suffered direct physical injury or families who lost a loved one in the disaster. Congress placed no caps or limitations on individual awards or the amount of money that would be dedicated to the Fund in order to achieve these goals and offer an alternative to litigation for affected families. The Regulations, particularly the presumptive economic and non-economic awards, may provide little or, in some cases, no benefits to a large number of decedents' families. Indeed, the possibility exist that the small awards would force some families to sell their homes, pull children out of schools and drastically alter their already devastated lives. The following is a list of the primary areas in which the Regulations violate the statute, are unconstitutional or have been left so unclear as to cause most potential claimants to hesitate to file a claim with the Fund: Collateral Source Deductions: Under the Act, certain collateral sources are used as offsets to potential awards. However, the Regulations offer an ambiguous definition of collateral sources and, in some cases, define items as collateral sources above and beyond what was defined by Congress. The Regulations only list things that may constitute a collateral source (e.g., pension), but they do not provide any guidance on which type of pension constitutes a collateral source. Under the Act, a collateral source must directly replace, match or indemnify a particular loss that is compensable under the wrongful death statute before it may be considered an offset. See, e.g., Oden v. Chemung Co. Indus. Dev. Agency, 637 N.Y.S. 2d 670 (1995). Only under that definition of collateral source is the double recovery avoided (over compensation) without incurring under compensation. Without such a definition, the Regulations lead to unfair results, as follows: Employee contributed pensions and Social Security are both largely deferred income for a wage earner deducted form the pay check, lowering his/her yearly income, but repaid in retirement. Neither should be considered collateral source income. The reduction from the wage earner's income, by pension contributions, reduces the earnings at the started point for the Regulations' matrix, resulting in a lower presumptive award. It is unclear if the Regulations will adequately address the loss of pension benefits as a loss of income or reduce an award by declaring it a collateral source. The New York State legal authorities recommended that workers' compensation not be considered a collateral source because of the unpredictability associated with future life events, such as remarriage or children reaching majority, that can cause future workers' compensation to be terminated. The total amount of future compensation is difficult, if not impossible, to ascertain because it is subject to termination, reductions and reimbursement, and it should not be considered a collateral source payment. Workers' Compensation is typically a monthly annuity that is generally terminated once any third party compensates the injured party for his/her loss. There is also usually a lien on any amounts recovered requiring the recipient to repay all or a portion of the workers' compensation received prior. Here, however, 104.63 of the Regulations does not allow such a lien in specifying that awards from the Fund do not constitute a tort award to recovery form a third party. This does not, however, solve the problem that future workers' compensation will be terminated and thus should not be a collateral source. The Regulations must be amended to define collateral source as a payment which is a direct replacement or indemnification of an economic loss that is compensated under the Fund. That definition would solve the problem of how to deal with payments made to non-claimants. As the Regulations currently stand, City and State rescue workers are in danger of receiving either no recovery or perhaps only the non-economic loss award. This fails to account for the true definition and treatment of their pension as deferred income and not a collateral source. It also fails to recognize part-time jobs and second careers that most of these rescue workers had or would have had, upon retirement at ages prior to the expiration of their work life expectancy. This must be addressed. Income Loss and Income Growth Rates The Regulations improperly look backward on a 3 year average of income rather than forward. Rather than focus on the yearly income at the time of death, the starting point is reduced and the punishing reduction is repeated forward each and every year through retirement. In most cases, this results in a large understatement of the decedent's true earnings. This unfairly devalues the loss. It is unclear how fringe benefits paid by the employer, such as health care and pension contributions will be considered. Normally economists consider these benefits to be additional income at a rate of approximately 20-25% of the employee's W-2 income. Many families will be without health insurance as a result of the wage earner's death and will be forced to obtain coverage. As far as pensions are concerned, the Regulations currently note that some premiums paid by employers will be considered, but offers little guidance beyond that. Income growth rates of government and military employees are inappropriate to determine growth rates of workers in the private sector. The Regulations do not account for the much higher income growth rates that the decedents would have enjoyed based on promotions, inflation and historical growth in the private sector. This information is publicly available and past income growth rates and industry parallels are also available on a case by case basis. Alternatively, if a uniform growth rate is more desirable, even if skewed, a higher rate is more appropriate than the 4.2% to 6.6% growth range the regulations currently envision, accounting for only an unrealistic .7 to 3% growth after inflation due to merit, performance or promotions. The Regulations deduct taxes form the gross income based on today's tax rates. Tax rates change on a regular basis and courts and economists are reluctant to predict what tax rate would apply 10 or 20 years from now. No one can dispute that tax on gross income is also reduced by deductions, exemptions, deferred income, losses and other non-taxable income. It is not clear if this is being taken into account when reducing the award for taxes. Furthermore, if New York law is the applicable law for economic loss, it appears the regulations violate New York law because New York law prohibits deduction or consideration of income taxes. Coleman v. NYCTA, 37 NY2d 137, 371 NYS2D 663 (1975); NY Pattern Jury Instructions 2:280. The Regulations disregard earnings in the top two percentile of income and thus constitute a cap on damages. New York law on economic loss is clear in prohibiting caps and this is in direct violation of the New York Constitution. New York Const. Art 1, 516 prohibits any limitation on the amount of wrongful death recovery. Section 408 of the Act defines economic loss according to applicable state law. Yet the Regulations violate that law and violate the New York Constitution. Non-Economic Loss While it is difficult to place a value on non-economic loss or compare one family's loss of a loved one to another's, or the suffering of a decedent before death, offering $250,000 plus $50,000 per spouse and child grossly undervalues this category of injuries based on verdicts and settlements throughout the United States. Once again, the Regulations, in placing a cap on this loss, violate New York law. Furthermore, non-economic loss is separate and distinct from economic loss and should not be reduced by collateral source income, taxes or reduced to present value. In an effort to meet the goals established by Congress, we believe the Special Master should review the current cap on non-economic damages with an eye towards raising the limit. A higher amount is not only fair and supported by law, but would encourage, if not ensure, the vast majority of families to opt for the Fund rather than to pursue litigation. The non-economic loss award in the Fund is a creature of the federal law, unaffiliated with any state law for its substance. Accordingly, we would encourage the Special Master to reevaluate and clarify the claimants eligible to receive compensation under the Fund. See Dixon v. Serodino, Inc.,331 F.2d 668 (6th Cir. 1964); Petition of United States, 418 F.2d 264 (1st Cir. 1969); Spiller v. Lowe, 466 F.2d 903 (8th Cir. 1972); Green v. Ross, 338 F. Supp. 365 (S.D. Fla. 1972); Stissi v. Interstate and Ocean Transp. Co. of Phil., 590 F.Supp. 1043 (E.D.N.Y. 1984); Thompson v. Offshore Co, 440 F.Supp. 752 (S.D. Tex. 1977); Boswell v. Bludworth Bond Shipyard, 854 F.Supp. 461 (S.D. Tex 1994) In addition, when Congress passed the Act establishing this Fund, up to 10,000 Americans were presumed to have lost their lives due to the events of September 11th. Today, thankfully, that number has been reduced to under 3,000. In light of this and all of the above, it is obvious that increasing the current cap on non-economic loss will not have a financial impact beyond what was anticipated or intended when we created this Fund in September of last year. We want to thank you in advance for your attention to this important matter. We look forward to hearing form you soon. Sincerely, Comments by: Vito J. Fossella Peter King Carolyn McCarthy Frank Pallone Jr. Chris Smith Nita Lowey Steve Israel Felix Grucci Jose Serrano Major Owens Frank Wolf Nydia Velazquez Edolphus Town Carolyn Maloney Gary Ackerman James Maloney Rosa DeLauro Benjamin Gilman Tom Reynolds cc: Kenneth Feinberg September 11 Email: Date The local time and date when the message was written. 2002-01-28 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 dojP000324.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. 2002-01-28