W000568
Monday, November 26, 2001 11:50 AM
Comments on notice of inquiry and advance notice of rulemaking
Dear Mr. Zwick,
Attached please find comments I have regarding the proposed rulemaking relating to the September 11th Victim Compensation Fund of 2001.
Sincerely,
Attachment 1:
November 25, 2001
Kenneth L. Zwick
Director, Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Via email at victimcomp.comments@usdoj.gov
Re: Comments on Notice of Inquiry and Advance Notice of Rulemaking, September 11th Victim Compensation Fund of 2001
Dear Mr. Zwick:
My husband, , was killed in the terrorist attack on the Pentagon on September 11, 2001. I have several comments regarding the published notice of inquiry and advance notice of rulemaking published in the Federal Register on November 5, 2001:
1. In general I do not object to the use of the "interim final" rules procedure, given the time constraints. However, it is not clear from the notice how such a procedure impacts the claimants who file claims based on the "interim" rules. It would seem that in using this procedure persons with similar claims could be treated differently depending on when they file a claim. I believe that there will be a strong outcry if persons are treated differently either procedurally or substantively. Similarly, in topic #6 the comment regarding noneconomic losses indicates that the Department is considering making "meaningful distinctions" between persons who died in different locations. I cannot imagine what "meaningful" distinctions could be made based on the location of the death from these terrorist acts; thus it is difficult to comment fully on this issue. However, I would suggest that the Department apply a very strict scrutiny to any distinctions it considers making between victims, particularly those based on the location of the death.
2. Topic #1 & 2 solicits comments on whether every claimant should be permitted an oral hearing. While I do not have any comments as to whether hearing officers should be used or what their qualifications should be, I do believe that there should be a procedure for an oral hearing, particularly in light of the statutory right for the claimant to present witnesses and the lack of judicial review. The presentation of witnesses presumes that an oral hearing will be held, with all of the credibility determinations that involves. In addition, for practical reasons, there may be questions that arise from the information provided by the claimant that are more expeditiously answered in an oral hearing. While it might seem that a hearing would cut into the decision-making process, it may prove to be the most expeditious manner for the Special Master to get answers to questions arising from the evidence presented in order to meet the statutorily imposed deadline for decision.
3. There is nothing in the statute to indicate that the Department has the authority to limit the types and amounts of fees that may be charged by those assisting claimants (such as lawyers, accountants, economists).
4. The use of the term "personal representative" in section 405(c)(2)(C) of the statute clearly limits the type of person who may file a claim. Therefore, all claimants should be appointed personal representatives by a court. In effect, the claimant is the estate in every case where a death resulted from the act. (In injury cases the injured party themselves would be the claimant.). This eases the burden on the Special Master in the initial questions of determination of eligibility and puts the issues of notification of other "survivors" or heirs into state court designed specifically to deal with those issues. Similarly, the personal representative would not need to get the waivers of litigation rights from other "survivors" because he/she represents only the estate and not the other "survivors".
5. The rules make it clear that the Department does not want to require the use of economic experts, however, it does not address the issue of whether it would permit such evidence to be presented by a claimant. If the Department neither allows nor requires such evidence, should the Department hire an economist to assist the special master on behalf of all claimants?
6. It does not appear from the language of the statute that charitable contributions were intended to be included in the definition of collateral source. The statute defines the term to include: life insurance, pension funds, death benefit programs, and payments by governments. While I might argue the policy decision to include any of the above as collateral sources, it is a legal stretch to include charitable contributions as a "death benefit program". In addition, it will be almost impossible to quantify the "potential future collateral source payments" if such charitable contributions are included. To a certain extent the answer to this question comes back to the issue of who the claimant is. If the claimant is required to be the personal representative, there would be less of an issue because the charitable contributions that have been disbursed have been payable not to the decedent or the estate, but to the individual family members who survived.
7. While the statute makes it clear that persons who take under the Fund are giving up their rights to judicial review of the decision, in most cases where a benefit is payable through an administrative process without judicial review, an internal appeal process is provided. I believe the Department should include some type of administrative appeal or review, even if it is limited in scope or manner, and that such review should be heard by the Attorney General.
Thank you for the opportunity to comment on these proposed rules.
Respectfully submitted,
Individual Comment