W000635
Monday, November 26, 2001 3:53 PM
United Airlines' comments re Notice of Inquiry re September
11th Victim Compensation Fund of 2001
Dear Mr. Zwick:
At the request of United Airlines, please find attached in both
Word and WordPerfect format United's comments in response to the
November 5, 2001 Notice of Inquiry and Advance Notice of Rulemaking
concerning the September 11th Victim Compensation Fund of 2001. Please
contact United at the following address if the comments should be
submitted in a format other than Word and WordPerfect. Thank you.
United Airlines, Inc.
Elk Grove Village, IL
--------------------------------
VIA ELECTRONIC MAIL
Kenneth L. Zwick, Director
Office of Management Programs
U.S. Department of Justice
Civil Division
Mann Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Re: Notice of Inquiry and Advance Notice of Rulemaking, September 11th Victim Compensation Fund of 2001
Dear Director Zwick:
United Airlines, Inc. submits this letter in response to the Notice seeking public comment on matters related to the implementation of the victim compensation fund program ("VCFP").
United is pleased to have the opportunity to comment on the matters raised in the Notice, particularly those procedural issues that we believe will facilitate the process in order to make it as streamlined and fair as possible to the victims and their families.
Our comments track the order of items mentioned in the Notice.
General approach, subsection (f).
Should the regulations cover matters in addition to those specified in § 407 of the Act (to provide full information about how the program will work)?
United urges that the regulations be as comprehensive and informative as reasonably possible in order to enable individual victims to make prompt and informed choices between participating in the Victim Compensation Fund Program ("VCFP") and filing a private lawsuit.
Is the number of individuals who have filed a civil suit or plan to do so in the next few months "very small"?
As of the date United submits these comments, no lawsuits have been served on United by individuals who would be eligible to participate in the VCFP. We expect that the more the regulations and forms are clear, swift and fair, the fewer private suits will be filed.
Is the statutory requirement that a claimant "withdraw" from a civil suit within 90 days of the promulgation of the new regulations intended to preclude such a claimant from refiling or rejoining a civil action
(a) if the claimant changes his or her mind? or
(b) if the Special Master determines he isn’t eligible to file a claim?
In order for the VCFP to work fairly and efficiently and in the manner that Congress intended, a claimant who elects to participate should not be permitted to change his or her mind at a later date and pursue private litigation. However, if it is determined that the claimant is not eligible to file a claim pursuant to the VCFP, the claimant should not necessarily thereby be precluded from pursuing a private lawsuit.
Topics 1 & 2: The forms and information to be used.
Should the Special Master determine that a claim has not yet been "filed" if a submission is inadequately detailed?
In order to achieve the goals of the VCFP generally, and to allow time for the Special Master to determine a fair and appropriate award on each claim, it would seem wise to start the 120-day period running only after the Special Master has determined that the application is complete, including the submission of all supporting documentation.
Should the Special Master take any specified action before deeming a claim "filed"?
The regulations should include a provision directing the Special Master to assure, before declaring that a claim has been "filed," that the Special Master has received all data, signature, and required documents, and that if any of the required material is missing, to notify the claimant in writing of the deficiencies and confirm to the claimant that the claim will not be deemed "filed" until the missing data and/or documentation has been received.
Design and content of claims forms, including readable and readily available.
In addition to procedures for electronic filing, the claim form itself should include an explanation of the eligibility requirements to be a "claimant," a description of the kinds of damages that are recoverable, an explanation of the claimant’s rights and obligations (including the waiver of right to sue, the right to amend, the applicable time periods, the procedures for oral hearings, the penalties for submission of false information, the verification under oath, etc.). The claim form should require information about the injured victim, the deceased victim, and the claimant if someone other than the victim is the claimant; the decedent’s survivors; the injured or deceased victim’s dependants and anyone else claiming under the victim’s right to recover, the injured or deceased’s victim’s education, employment, and earnings; the basis for eligibility; the physical harm to an injured victim; an itemization of each element of claimed damages; a calculation of the amount of the claim, and a listing of collateral sources and amounts. The claim form should require that it be accompanied by supporting records, including birth certificates for the injured and deceased victims and their dependants; marriage certificates for the injured or deceased victim; death certificates for deceased victims; a driver’s license, passport, visa, or green card for the injured or deceased victim and for the claimant; the three most recent years of U.S. income tax returns (or foreign equivalent); the injured or deceased victim’s medical records for treatment related to the 9-11-01 injuries, certified or attested to by one of the medical providers; a statement of circumstances surrounding the injured/deceased victim’s death or injury; all applicable life insurance policies, death benefit policies, health insurance policies, and statements of benefits to which the injured/deceased victim is entitled (other than charity); affidavits of any expert witnesses or other consultants on which the claimant relies for the submission of information to support the claim; and the sworn signature of the claimant and, if the claimant is represented by an attorney, the attorney as well.
Topic # 3: Procedures for hearings and presentation of evidence
Could the Special Master stop the running of the 120-day clock?
The Act appears to impose an absolute 120-day requirement for the benefit of claimants, and so it may not allow the Special Master to toll the running of that period, at least not without the consent of the Claimant. If and to the extent the statute is determined to allow waiver of the 120-day period, United believes that a claimant should be allowed to waive this time requirement if the claimant decides that more time is necessary.
Could the Special Master dismiss an inadequate claim, and could claimant refile?
United urges the adoption of regulations and procedures that allow the Special master to take reasonable steps to secure complete and adequate claim submissions by requiring prompt notification to the claimant that the submission is not complete and adequate, and a clear and plain statement of what the claimant needs to do in order to make the submission complete and adequate. The regulations should provide that a claimant may supplement or amend his or her submission as necessary, and more than once if necessary, in order to be certain that every injured or deceased victim or their representatives are afforded the benefits and protections of the VCFP. The regulations should err on the side of allowing additional submissions and additional opportunities to assure a complete and adequate submission, with the goal of having every claimant who wishes to participate do so successfully, consistent with the 2-year requirement of the statute.
Should every claimant be granted an oral hearing, or would submission of paper be enough?
While most claims should be able to be decided on the paper, we believe that a claimant who wishes to appear before the Hearing Officer should be afforded an opportunity to do so if the Hearing Officer, in the exercise of sound discretion, deems it to be helpful. Given the volume of claims to be processed, however, and to assure that others waiting in line are not unduly delayed, such an opportunity to present oral evidence will of necessity need to be concise, focused and limited in duration. In addition, the regulations should allow the Special Master the authority to require a claimant to appear to answer questions if there are ambiguities or other issues presented by the claim form and supporting documentation.
Should the Special Master use hearing officers? If so, what qualifications and training should they have?
Yes, hearing officers are essential in order to meet both the statutory deadlines and claimants’ expectations that the VCFP will provide a more time-efficient mechanism than a private lawsuit. Because the hearing officers will be called upon to evaluate sophisticated financial/economic data, they should have a law degree from an accredited law school at a minimum, and preferably experience handling dispute resolution (e.g., retired judges, ADR neutrals).
What powers should they have (e.g., ask questions, require more information, recommend decisions to Special Master)?
The hearing officers should have all these powers, and their recommended decisions should be in writing on a standard form on which they state both the amount of the award, and the reasons for arriving at the award and other pertinent information that supports the award.
Should claimants have a right to appeal hearing officer decisions to Special Master?
United believes that claimants should have the right to appeal the hearing officer’s final decision to the Special Master, with the standard of review to be established by the DOJ. However, in order to assure that all claimants receive prompt decisions, claimants challenging the hearing officer’s decisions should do so only in writing, without an additional hearing.
Can DOJ subpoena evidence from non-parties?
The DOJ (in particular, the Special Master) can and should do so especially if evidence from a non-party is needed to prove claimant’s claim or there are indications of mistake or fraud in a written submission or oral testimony.
Should oral hearings be recorded?
The inclusion of written transcripts, tape recordings or video recordings of the hearings would provide added assurance to the claimants of impartiality, and will be helpful in the event of appeals to the Special Master.
Should oral hearings be held in a site convenient to the claimant?
United believes that the opportunity (or in some cases, requirement) to present evidence in a convenient location will make the entire VCFP more attractive to claimants.
How should scheduling conflicts be dealt with, and can a claimant forfeit the right to a hearing by delay etc.?
The appointment of sufficient hearing officers should allow flexibility in scheduling. Given the ongoing stress felt by claimants and their families, and the potential difficulties in obtaining definitive evidence, we would urge that the regulations ensure that any right to an oral hearing (though not to an award) would be forfeited only in a case of extreme and unexcused delay by the claimant.
Topic # 4 procedures to assist claimants
How can the DOJ assist claimants (e.g., office locations, toll-free phone lines, outreach meetings, newsletters, etc.)?
We urge the DOJ to do everything reasonably feasible to assist claimants and their families.
Can the Special Master limit fees charged by counsel experts, etc?
Yes. Such fees should be paid out of the compensation awards themselves, to ensure that claimants are motivated to negotiate reasonable fee arrangements and take advantage of pro bono opportunities.
What limitations should be placed on "non-attorney, non-Claimant representatives participation"?
The claimant should be allowed to have any person of his/her choice represent him/her, and to use the assistance of advisors, accountants, and experts to help prepare the forms and documents to be submitted and to offer sworn testimony. Claimants should also be allowed to offer evidence from family members and dependents.
Topic #5 Claimant eligibility
Would a DOJ regulation or a Special Master statement of policy be appropriate to clarify "eligible claimant"? What should the criteria for "eligible claimant" be? What is the appropriate scope of "present at", "physical harm" and "immediate aftermath"?
As with nearly all of the other issues presented in the Notice, additional guidance to claimants, including clarification of "eligible," will assist claimants and their families in determining to participate in the VCFP and will avoid misunderstandings, unnecessary appeals, and additional delays, as the process unfolds, and at the same time ensure that there will be only one "claim" per injured victim or deceased victim as required by the statute.
In addition to specifying the "zone of danger" as the relevant boundary, the regulations should specify that "physical harm" be more than a de minimis injury. The DOJ may also wish to address the question of claims for latent injuries that do not manifest themselves until after the 2-year period provided in the statute. United assumes that rescue workers who were present on September 11 in the "immediate aftermath" can be claimants but that those who were assigned to one of the crash sites thereafter will be covered by other compensation systems, principally their workers’ compensation statutes.
What evidence of presence, and of physical harm, should be required?
As for presence, an affidavit of the injured claimant or the death certificate of the deceased victim and an affidavit of the personal representative should suffice. As for evidence of physical harm, the physical injuries must be shown to be directly caused by the attacks of September 11, and the medical records with a certification by one of the attending physicians should be enough.
Would a DOJ regulation or Special Master statement of policy be appropriate to clarify "personal representative" issues?
Such a regulation or statement is essential to the smooth and fair administration of the VCFP, including a requirement that the personal representative notify all survivors and identify all survivors in the claim forms.
Can the Special Master determine who is the appropriate "personal representative"?
United believes that Congress did not intend for the Special Master to take on this added burden when there are well-established procedures of state probate law to accomplish this essential step. The personal representative should be appointed according to the mechanisms provided under the laws of the state or other jurisdiction in which the deceased victim was domiciled. If a deceased victim was domiciled in a state or other jurisdiction that has no such mechanism for the appointment of a personal representative, the Special Master should be empowered to appoint such a representative with the authority to resolve all claims arising from or derivative of the death of the deceased victim.
In order to prevent the multiple claims that the statute prohibits, the regulations should provide that, once the personal representative (whether appointed by the court of the victim’s domiciliary or by the Special Master) elects to use the VCFP, all persons who wish to pursue claims arising from or derivative of the death of the deceased victim are bound by that election and must pursue their claims in the VCFP through the personal representative.
Should the Special Master require court ruling/appointment of "personal representative"?
To the extent the domicile states have procedures for such local court appointments, such a requirement would assure that each deceased victim’s interests are properly represented, and would help avoid fraud and the kind of multiple claims that the statute clearly prohibits.
Should the Special Master hold off proceedings until a court decides who the personal representative is?
The claim form should include a place for the claimant to indicate who is the personal representative, and one of the required documents to be submitted as part of the claim form should be the court order appointing the representative. The regulations should specifically and clearly state, as should the claim form itself, that the claim will not be deemed "filed" until the required information and documentation of the authorized personal representative is submitted.
Topic #6 Nature and amount of compensation
What are the practical means to base awards on individual circumstances but also use consistent and clear principles that treat each claimant fairly? In particular, should schedules or statistical methods be used and, if so, should schedules or presumptive awards for classes of individuals be published?
Given the statutory time limits, the numbers of potential claims, and the purpose of the Act, it seems clear that such schedules and methods should be used, and that the standards, matrices by type of injury, and formulas should be published.
How should the Special Master use specialists/experts in economic losses to analyze such losses?
Qualifications
Data to be used
Methodologies to be employed
Required documentation
The experts should examine the three most recent years of tax returns, the employer affidavits regarding employment status and future prospects, medical bills, funeral expenses, etc., and advise the hearing examiners as to those matters.
Bearing of state law
The regulations should specify which state’s law (domicile vs. situs of crash) will apply to claimants.
How to address loss of contingent/variable/unpredictable future income?
There are experts in economic loss whom the Special Master can engage to provide consistent computation of such losses, with full explanations of the basis for each decision.
What distinctions should be drawn for noneconomic loss purposes between individuals who died in different locations? Should Special the Master draw distinctions between individuals who suffered similar injuries? Should Special the Master issue regulations determining the amount of noneconomic loss for classes of similarly situated individuals, or determine all noneconomic losses on a claim-by-claim basis?
Fair and appropriate awards to the claimants should take as their starting point a matrix by type of harm.
What facts and circumstances should be considered in determining loss?
In addition to the standard earnings, life expectancy, medical records types of facts and circumstances, United urges the Special master to consider all facts that a claimant wishes to submit as part of the claims form.
What standards should be employed in determining noneconomic loss?
Use of a matrix by element of injury should be employed for this type of claim, to assure consistency.
How should Special Master determine what constitutes a "collateral source"?
By reference to state laws, other federal statutes, and consideration of the purpose of the Act to provide full compensation to the victims.
Does the Act allow the Special Master to exclude charitable contributions?
Yes. We doubt that Congress intended to include charitable contributions as "collateral sources" that would diminish a recovery under the VCFP. The definition of "collateral sources" under § 402(4) should include all contractual and/or statutory payments (except payments made under the Act), including by way of example life and health insurance benefits, workers’ compensation death- or injury-related benefits, and payments made under other statutory schemes. Charitable contributions paid to a victim or a victim’s estate or family or heirs should not be included or otherwise counted "against" a claim under the VCFP.
Does the Act permit in kind contributions to be excluded, too?
Yes.
How could the Special Master determine whether potential future collateral source payments are included in the statutory definition?
By looking first to the language of the contract or statute, and in addition providing a place in the claim form (which the claimant will be verifying under oath) for a statement of the likelihood of such a payment.
Fraud Prevention Measures
What measures should be adopted to prevent and detect fraud?
Clear statements in the claims forms and accompanying instructions of what the DOJ expects of the claimant by way of documentary submissions, are the best way to prevent both innocent mistakes and intentional fraud. Such instruction and notification should make it clear that both the claimant and his or her attorney must verify the statements made in the submissions under oath, on penalty of perjury for false statements, and with indemnification of the federal government in the event of documented fraud, and so forth. The regulations and/or the claim form should remind claimants that submission of knowingly false information would be a violation of Federal law. The claims form should also note that the Special Master has subpoena powers and that the hearing officers and their retained experts will be authorized to question the claimant and the claimant’s attorney under oath if the hearing officer determines that such questioning is appropriate. In addition, there should be a mechanism for the DOJ to notify the federal court in the Southern District of New York of all filings; similarly, the SDNY should notify the DOJ of new case filings (in the SDNY or elsewhere).
* * * * *
On behalf of the entire United Airlines community, we thank the DOJ for the opportunity to participate in this vital step towards the recovery and healing of our nation. All of us stand ready to assist you and your colleagues in whatever ways we can to assure that the individual victims of these terrible atrocities receive fair, adequate, and swift compensation through the statutory victim’s compensation program that Congress has enacted.
Comment By:
United Airlines, Inc.
Elk Grove Township, Illinois