W000535
Sunday, November 25, 2001 3:28 PM
Public Comment: Joint Comment by Log Cabin Republicans and
National Stonewall Democrats
BY E-MAIL
November 26, 2001
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
Dear Director Zwick:
The Log Cabin Republicans ("LCR") and The National Stonewall Democrats
("NSD") welcome the opportunity to offer joint comment in response to
the request for public comment by the Department of Justice ("DOJ") on
regulations and procedures relating to compensation of survivors of
persons killed in terrorist attacks on September 11, 2001. We at LCR
and NSD are united in seeking to do all we can to console and assist
those whose lives were forever changed by the losses suffered during the September 11th attack on our nation.
This comment focuses on the subject of claimant eligibility and
compensation addressed in Topics 5 and 6 of the Notice of Inquiry,
pertaining to sections 405(c)(2)(c) and 405(b), respectively, of the Air Transportation Safety and System Stabilization Act that establishes the September 11th Victim Compensation Fund of 2001. These provisions on claimant eligibility and nature and amount of compensation raise a
multitude of issues, five of which we address in this comment. First,
the DOJ asks whether the Special Master should require "survivors" of a
deceased victim of the tragedy to be notified of their potential
eligibility for compensation by the lost person's "personal
representative." Second, the DOJ asks whether the Special Master may
determine who is the "personal representative" of a deceased victim
among a pool of claimants and other persons. Third, the DOJ requests
comment on whether the Special Master, in a situation where there is a
dispute about the identity of the victim's personal representative,
should require adjudication and resolution of this question by an
appropriate state court or authority. Fourth, the DOJ asks whether
compensation for a victim's claimants be placed into escrow pending
resolution of adjudication as to the personal representative of a
deceased victim. Fifth, the DOJ asks for guidance on regulations to be
promulgated to determine the nature and amount of compensation to a
victim's claimants.
As a threshold matter, we believe that the DOJ, working through the
Special Master, should determine the identity of the personal
representative of a deceased victim and all eligible survivor-claimants
of a victim in a fair and equitable manner. Accordingly, we believe
that the Special Master should be vested with the responsibility to
determine the appropriate personal representative of a lost victim and
the eligible claimants of such a victim.
PERSONAL REPRESENTATIVES
Criteria for identifying personal representatives should be
fundamentally fair, equitable, and consistent, and should consider all
of the individuals who had a close relationship with the deceased
through an analysis of relevant indicia of such relationship. These
indicia would include, among others, shared residence, formation of a
civil union, registration of domestic partnership with a state or other
jurisdiction, shared bank accounts, joint membership in a health plan,
joint membership in a place of worship, joint enrollment in a club or
association, or evidence of a significant sharing of living expenses.
If there is a dispute about the identity of a personal representative of a deceased victim, an escrow procedure for compensating eligible
claimants should be established. In such a case, the Special Master
should be required to have such disputes resolved in a state court of
competent jurisdiction where the relevant state's laws reflect
substantially the same indicia, as listed above, for determining the
appropriate personal representative. However, if relevant state law is
substantially different and does not account for consideration of broad
criteria for evaluating relationships in a fair and equitable manner,
the Special Master should be provided with the authority and be required to exercise appropriate discretion to resolve such disputes using the types of relationship indicia discussed in this comment.
CLAIMANT ELIGIBILITY & COMPENSATION
Further, regardless of the procedures for determining personal
representatives, the Special Master should be required to evaluate the
eligibility of claimants in an appropriate manner. Fortunately, a fair
and equitable September 11th compensation system model already exists
for the DOJ's examination and consideration, and we urge the DOJ to
study and emulate the fundamental aspects of this model. On October 11, 2001, New York Governor George Pataki signed Executive Order 113.3,
directing the state to consider all appropriate factors in determining
an eligible dependent for purposes of compensation. The New York
executive order reads in relevant part as follows:
"Such a dependent person shall be eligible for awards upon a
showing of unilateral dependence or mutual interdependence upon such a
victim, which may be evidenced by a nexus of factors, including but not
limited to common ownership of property, common householding, shared
budgeting and the length of the relationship between such person and the victim."
With respect to the Special Master's determinations of the nature and
amount of compensation, we strongly urge the DOJ to fairly and equitably take into consideration economic and non-economic losses suffered by a victim's eligible claimants. For example, those sanctioned under New York City and New York State laws as domestic partners should continue to receive equitable treatment and consideration for economic and non-economic losses that are determined to exist by the Special Master.
Lastly, we suggest that the DOJ consider the bipartisan action of 45
members of the United States House of Representatives who, in a letter
to the United States Attorney General dated November 15, 2001, urged the
DOJ to consider the type of indicia mentioned above in promulgating
regulations for the operations of the compensation fund.
We submit this comment and respectfully ask for full consideration of
its contents. Please do not hesitate to contact us if we can be of
assistance.
Comments By
Log Cabin Republicans and National Stonewall Democrats