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. January 24, 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, D.C. 20530 Re: Sept. 11th Compensation Fund of 2001 Rules Dear Mr. Zwick: I am a trusts and estates attorney. This firm represents the families of a number of victims of the September 11 terrorist attacks, but I am writing in my individual capacity to comment on the Rule (the "Rule") implementing the September 11th Compensation Fund of 2001 (the "Fund") and, in particular, on the importance of distributing awards from the Fund solely in accordance with applicable State law. In the Statement by the Special Master published as a preface to the Rule, the Special Master noted that the Rule referred to state law to determine the identity of the Personal Representative, and stated, "[n]or would it be advisable for the Special Master to step in and supplant state court practice or the testamentary intent of decedents." Statement, p. 8. We agree that this approach is correct; unfortunately, the Rule departs from this salutary principle with respect to the distribution of awards. The Rule provides that "[t]he Personal Representative shall distribute the award in a manner consistent with the law of the decedents domicile or any applicable rulings made by a court of competent jurisdiction." Rule, § 104.52. But the Rule then authorizes the Special Master to modify any proposed plan for distribution of the award if the Special Master "concludes that . . . it does not appropriately compensate the victims spouse, children, or other relatives." Id. I respectfully submit that the Special Masters power to direct that an award be distributed in a manner that is not consistent with applicable State law or the rulings of a court of competent jurisdiction is grossly unfair, may be unconstitutional, and will create serious practical difficulties for Personal Representatives. Under New York State law, tort damages in respect of a deceased victim are categorized either as damages for the victims conscious pain and suffering, which are payable to the victims estate and therefore will be disposed of under the victims Will or in accordance with the rules of intestacy if the victim died without a Will, or, alternatively, as damages for wrongful death, which are payable to the victims distributees within the meaning of that term in New York Estates, Powers and Trusts Law Section 5-4.4 (i.e., generally, the persons who would inherit under the rules of intestacy). Section 405(c)(3)(B) of the Act provides that submission of a claim under the Act constitutes a waiver of the claimants right to be a party to an action for "damages sustained as a result of" the events of September 11. Section 104.21(b)(1) of the Rule states that the Special Master "may require that the claimant certify that he or she has dismissed any pending lawsuit . . . and that there is no pending lawsuit brought by a dependent, spouse, or beneficiary of the victim." Thus, the Rule contemplates that submission of a claim under the Act constitutes a waiver of all rights to seek damages arising out of the death of a victim - both for pain and suffering and for wrongful death. Any award from the Fund should be distributed among those persons who would have an interest in damages recovered as a result of the victims death under State law. Distributing an award from the Fund to either a larger or a smaller class than permitted under state law - or designating the award as either entirely pain and suffering or entirely wrongful death compensation -- would open the door to many possible disputes and complexities, and might even constitute an unconstitutional taking. Upon the death of a victim, two potentially different sets of people acquired a vested interest in the causes of action for pain and suffering (those interested in the victims estate) and for wrongful death (the victims distributees). If a victim died intestate, the persons interested in the wrongful death and pain and suffering damages would be the same in most cases. They would differ in two situations: First, if the victim was survived by a spouse and one or both parents, but no descendants, the spouse would be the only distributee for purposes of distributing the victims estate and therefore the pain and suffering damages, while the spouse and the parents would be the distributees for purposes of distributing wrongful death damages. Second, if the victims estate was insolvent, the pain and suffering damages would be an estate asset that could be reached by the creditors of the estate, while the wrongful death damages would be distributed only among the distributees. If a victim died testate, the persons interested in wrongful death damages could be quite different from the persons interested in the pain and suffering damages, since there is no constraint on the identity of the beneficiaries under the victims Will, who would generally receive the pain and suffering damages. When a Personal Representative submits a claim under the Act, the Personal Representative has effectively waived all rights to seek wrongful death damages and pain and suffering damages in exchange for receiving the no-fault award from the Fund. Thus, the award from the Fund is effectively the sole compensation for the foregone tort causes of action. I submit that it is fundamentally unfair to distribute the award to anyone other than the persons whose rights were waived in order to obtain the award. Although there does not appear to be any case on point, it appears that an enforced waiver of State law tort actions without requiring distribution of the award in accordance with State law to those persons whose rights were waived could be rise to the level of an unconstitutional taking. Distribution in accordance with State law will not always produce a perfect, or even a necessarily just, result. This is equally true with respect to the multitude of actions brought in State courts to recover damages when a victim is killed in a vehicular accident. The law does not, however, allow a judge in a negligence case to disregard State law to produce a result that the judge considers more "appropriate." While the circumstances of the deaths of the victims of the September 11 attacks were horrific, this goes to the question of the amount of an appropriate award. It is not a reason to depart from principles developed through extensive judicial and legislative experience as to the best way, in general, to distribute compensation available with respect to the death of a victim, especially in the context of a special, unappealable administrative procedure with limited ability to present and develop evidence. The Special Master has expressed the view that he would exercise the power to reallocate an award if a victim had made a Will leaving his or her entire estate to charity, since the taxpayers did not intend the Fund to enrich charity. First, based on anecdotal experience, it appears that the vast majority of the victims died intestate, and that the vast majority of the victims who left Wills did so in order to provide for their families in ways that most people would instantly recognize as "appropriate." Therefore, this is not likely to be a frequent occurrence. If it does occur, in my experience, testators cut their relatives out of Wills only after very serious consideration and to implement very strongly held beliefs. Failing to respect those beliefs would be a very profound betrayal of such victims. Second, to the extent that such a situation might arise, I simply believe that upholding the overall fairness and consistency of the administration of the Fund is more important - especially as an example of the strength of a society built on respect for impartial administration of legal principles- than protecting the fisc against the off chance that a small portion of the Fund may go to charity in accordance with the wishes of a deceased victim. Finally, giving the Special Master the power to direct that an award be distributed in a manner inconsistent with State law will place the Personal Representative in a position of intolerable conflict in those cases where the Special Master exercises this power. If a victim left a Will that bequeathed the entire estate to charity, and if the Special Masters practice is to prohibit distribution to charity in those circumstances, the Personal Representative will be between the proverbial rock and hard place. If the Personal Representative submits a claim to the Fund, the Personal Representative will be depriving the charity of its interest in pain and suffering damages, and the charity can sue the Personal Representative for breaching its fiduciary duty to the charity. If the Personal Representative bows to the charitys desires and does not submit a claim, it is exposed to a comparable lawsuit from the distributees who would presumably be entitled to receive the entire award from the Fund in these circumstances. In contrast, if an award is to be distributed strictly in accordance with State law, the Personal Representative can bring a proceeding, on notice to the persons entitled to share in the award, and obtain a court order specifying how the award is to be distributed, avoiding the risks outlined above. I urge, accordingly, that Rule § 104.52 be clarified as not authorizing departures from State law (or, if applicable, foreign law) with respect to the distribution of awards. Respectfully Submitted, Individual Comment ____________________________________________ 1 The Supreme Court has recognized several kinds of intangible interests to be property for purposes of the takings clause of the Fifth Amendment. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)(trade secrets may be subject of compensable taking); Armstrong v. United States, 364 U.S. 40 (1960)(state law materialmens lien); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935)(real estate lien); Lynch v. United States, 292 U.S. 571 (1934) (contract rights). 2 In all cases, the Personal Representative is potentially liable to be second-guessed about the question of whether it is better to sue or to submit a claim. There is no way for the Rule to decrease this risk, but there is no reason for the Rule to aggravate it by exposing the Personal Representative to additional risk based on the Special Masters discretion to re-allocate an award. September 11 Email: Date The local time and date when the message was written. 2002-01-24 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 dojP000068.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. 2002-01-24