W000685
Monday, November 26, 2001 6:25 PM
September 11th Victim Compensation Fund of 2001
Please find attached the comments of the Alternative Dispute Resolution Section of the Federal Bar Association.
Attachment 1:
November 26, 2001
ORIGINAL VIA E-MAIL To:
victimcomp.comments@usdoj.gov
Mr. Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Room 3140
950 Pennsylvania Avenue, NW
Washington, DC 20530
Re: September 11th Victim Compensation Fund of 2001
Dear Mr. Zwick:
On behalf of the Alternative Dispute Resolution Section (the "Section") of the Federal
Bar Association ("FBA"), we respectfully submit comments on the Proposed Rule to Implement
The September 11th Victim Compensation Fund of 2001, above referenced (hereafter the
"Proposed Rule")(*). The Section consists of attorneys and associated professionals in government
service, private practice, and industry. We seek to improve the process of resolving adversarial
conflicts that involve legal issues of federal consequence. In that regard the Section has a strong
interest in submitting public comments on pending legislation, regulations and other procedures
concerning alternative solutions to litigation of federal issues.
The Proposed Rule would implement Title IV of the Air Transportation Safety and
System Stabilization Act of 2001 (Pub. L. No. 107-42 115 Stat. 230 (the "Act"). That Title
provides for federal payments of compensation from a Victims Compensation Fund (VCF) to
eligible individuals who were physically injured or killed as a result of the terrorist-related
aircraft crashes on September 11, 2001.
The Section believes that the Act provides an excellent framework for the establishment
of a victims claims procedure or process. Moreover, the Department of Justice ("Department")
identified in the Notice of Inquiry and Advance Notice of Rulemaking virtually all the issues that
should be considered as the Department implements and administers the VCF.
All Claims Should Be Deemed "Filed" Only After Review and Certification
The Department should create a process that allows the government to review putative
claims for completeness before they are deemed "filed" because the Act does not allow hearing
examiners enough time to both verify the bone fides of a petitioner's claim and adjudicate the
merits of the claim itself.
Section 405(b)(3) of the Act states unequivocally that "not later than 120 days after that
date on which a claim is filed the Special Master...shall make a determination [on the claim]."
The Act does not define the term "claim." We concluded, however, that Congress spoke to
making determinations of a claim's merits. This conclusion comes from the guidance provided
about the nature of the proceedings. In this regard Congress directed that the Special Master
afford claimants an appropriate measure of due process that includes "the right to present
evidence, including the presentation of witnesses and documents" (Section 405(b)). We believe
that Congress viewed presenting "witnesses" and "documents" as two separate and distinct
functions because Congress chose to differentiate one from the other. If Congress wanted to
limit presentations of testimony to affidavits, Congress may well have spoke only the
presentation of documents. Consequently, it seems that Congress anticipated that the hearing
examiners would hold evidentiary hearing of some sort where live testimony could be presented.
Although 120 days covers a quarter of year not an insignificant amount of time, we
believe that Special Masters may find the period only long enough to permit a careful
examination of the merits of a claim. This certainly would be the case where a claimant
requested an evidentiary hearing or the hearing examiner found it necessary to convene a hearing
or have someone acting on his or her behalf take other steps to verify information presented by a
claimant. If a hearing examiner could stay the claim period to gather more data, nothing more
would be need. However, because Congress was silent on the matter of stays, we cannot
presume such a power was intended.
Consequently, the Attorney General should structure the process to enable the
government to ensure that a "claim" contains all essential information and materials at the time
it is deemed "filed." To this end, we recommend that the Department define the term "claim" to
mean the submission of a complete claims package.
Under our proposal, the 120-day period would begin after a government official, certified
or otherwise determined that a claimant had completely filled out a Claim Form (promulgated
pursuant to Section 405(a)(2) of the Act) and supplied such supporting materials as required to
make a prima facie showing of entitlement, i.e., a showing of eligibility with enough
particularity for submission to a hearing examiner. Having submissions reviewed for eligibility
and completeness before they become "claims" would ensure the Department's hearing
examiners have enough time to accept evidence, hear testimony, as needed, and verify the merits
of claims within the 120-day statutory limit.
We propose that people with paralegal training or otherwise qualified administer the
intake process the preliminary review of a claimant's submission. These administrative
personnel would review documents submitted and identify information that may be missing or
additional information needed to resolve the claim. Rather than rejecting submissions lacking
data, the reviewers would return submissions to claimants for supplementation with directions
for providing the additional required information. With regard to the latter, the intake personnel
should be able to provide instructions and assistance to claimants proceeding pro se and those
with special needs (non-English speakers, the disabled, etc.) We believe providing a mechanism
for assisting claimants in the preparation and submission of their claims is consistent with the
Act's emphasis on providing a simple, straightforward and inexpensive procedure.
Claims Packages Should Contain Information Sufficient to Establish a Prima Facie Case of
Entitlement
The Act provides enough guidance about what should be submitted where it places
limitations on the bases for the payments from the Fund. The Claim Form should be fashioned
so it requires from claimants enough data and with enough specificity to establish a prima facie
case regarding:
1. His or her eligibility to file the claim and to receive compensation;
2. The extent of harm suffered, including any economic and noneconomic losses;
and
3. The amount of collateral compensation received or to which the claimant is
entitled.
The claimant should be required to sign the Claim Form and affirm the accuracy of the
information presented under penalty of perjury. It is the combined experience of the Task Force
that having claims notarized seldom increases the trustworthiness of the information. The
directions for affixing a signature should explain the consequences of such an affirmation. The
process should require that claimants append to their form all information that supports their
claim. The Attorney General should establish and publish rules for the authentication of
documentary evidence and for the content of supporting affidavits. If the claimant intends to rely
upon witnesses to establish portions of the claim, these witnesses should be identified in an
appendix to the Claim Form.
The Attorney General may want to stipulate the nature of documentary support the
government will consider adequate to make a prima facie claim. The rules might require that a
claim submitted for a deceased person be accompanied by a certified copy of a will that names
the claimant as the person's executor. Certified copies of tax returns might be required to
establish the income stream for a claimant. However, when creating the documentary
requirements for claims, the Attorney General should keep them to a minimum in order to
minimize the expense and time needed to submit a complete claim. In addition, we believe that
the Attorney General should establish and publish rules detailing what forms of documentation
the government will accept to establish the key elements of a claim. The notice inviting
comments suggested that requirements for a claim may need to vary depending on the type of
claim submitted (e.g., claims on behalf of decedents vs. claims by survivors). We suggest that
sworn statements or affidavits from unrelated third parties should be permitted where needed to
establish facts that cannot otherwise be documented because the necessary records were
destroyed in the attacks.
Qualifications of Hearing Officers and Scope of Authority
The great number of September 11th victims portend the filing of many claims and an
attendant need for a great many qualified hearing officers. We suggest that the Department
choose as hearing officers lawyers with experience or training in economics and labor
economics, and litigation. Also, the hearing officer corps should be limited to attorneys admitted
to practice for at least 10 and, possibly, 15 years. We believe that selecting counsel experienced
in mediation or arbitration would help further the cause of completing claim determinations
within the 120-day period. The ADR Section of the FBA would gladly assist the Attorney
General in locating lawyers possessing these qualifications.
We feel that Congress intended that hearing officers have the power to compel evidence.
This power can be inferred from §404(2)(2), §405(b)(4)(c), and §407.
The internal review board, or boards, could include retired federal and state judges,
especially retired appellate judges. Review boards should consist of at least two members for
each decision ofa hearing officer, or recommended decision of a hearing officer. They would
conclude their work on a claim by submitting , in addition to the hearing officer's determination,
the review board's written recommendation for submission to the Special Master for a final
decision.
Insuring The Integrity Of Claims Processing
We believe that the Attorney General may wish to augment the claims process having
another official help the hearing officers that the Special Master appoints. This official would
review all claims, and assist in assessing the nature and weight of the information contained in
the claims by verifying the information. Given the tight time frames for adjudication, we believe
that an additional official, such as a deputy to the hearing examiner, would enhance the
likelihood that claims will be given their due while preserving the fairness of the process and
protecting the taxpayer from inadvertent payments of unverified claims. Senator Daschle and
Representative Gephardt in comments that they submitted on October 25, 2001 suggested that a
representative of the Department perform this function. They suggested that the Department's
representative be present to comment on the evidence and ask questions to ensure that a complete
evidentiary case (and not one that favored the claimant only) be presented to the Special Master.
Whether hired from the Department or elsewhere, the person should have a background in
economic, insurance-like claims and a familiarity with the common law rules of evidence. With
respect to the latter, the person should be qualified to help the hearing officer decide the degree
of trustworthiness to be accorded submitted evidence. We urge that the Department define that
individual's role in such a way that the process stays as non-adversarial as possible.
Consider As Collateral Funds From All Sources
The ADR Section suggests that every payment a claimant may have received or may
receive from any source be considered as an off-set in determining how much the claimant
should be entitled to under the VCP. This interpretation we believe is consistent with the statute,
the generally accepted rules of statutory construction, and the intent of Congress. Moreover,
despite the arguably strong policy reasons for excluding charitable contributions from the
definition of collateral sources, the Section recommends against such an exclusion. This
exclusion is not only contrary to the text of the statute, but may be contrary to the intent of the
charitable organization in providing the contribution. Equally important, such an exclusion could
have the effect of penalizing those victims who have not been fortunate enough to receive
charity.
In its request for comments, the Department noted that strong policy reasons exist for
excluding charitable contributions from the definition of "collateral sources." Some of those
who already submitted comments raised another argument. They say that charitable
contributions are legally different in character than the payments authorized by the Act. They say
that the specific examples in section 402(4) are contractual or statutory entitlements and that,
consequently, charity payments should not be included as offsets.
However, we believe that a fair reading of all the language and a consideration of the
statutory intent suggests that the term "all" was meat to encompasses or include every collateral
source or the totality of collateral sources. Such a statutory reading is consistent with the way the
term "all" is generally defined and is thus consistent with the plain meaning of the term. See,
Webster's Ninth New Collegiate Dictionary, Merriam-Webster Inc., Springfield, MA, 1985, at
70 71. Turning to the dictionary is consistent with the well established proposition that when
construing and applying statutes one should accord terms their "plain meaning." In this case
following the general rule comports with the definition that Congress supplied. Section 402(4)
of the Act states that "collateral source" means "all collateral sources including life insurance,
pension funds " The plain meaning of "all" does not change, nor should one read into the
statute any unique meaning of this term simply because the statute does not specifically include
or exclude charitable contributions. We believe that when Congress enumerated certain
collateral sources, it intended that those items serve as examples only. Had Congress wished to
limit the types of collateral sources to those listed, Congress would have so stated. This
interpretation is consistent with the tenor of the statute. Congress stated that "all" collateral
sources "shall" be treated as offsets to the amount of compensation set by a Special Master.
Many legal commentators regard the term "shall" as the strongest legislative directive. It seems,
therefore, that Congress wanted to limit the government's liability. For the foregoing, we believe
that VCF funds should serve to supplement other sources of compensation.
Furthermore, it would be arbitrary to allow those who receive charity, be it substantial or
otherwise, to also receive full-compensation from the VCF while others receive only fund
payments because they are without charity. Finally, it might be contrary to the rationale behind
charitable giving to interpret the statute in a manner that would allow those victims who receive
charity to keep those funds in addition to their VCF payments. Those making charitable
contributions usually do so because they perceive that the victims have added economic burdens
that might not otherwise be met. Said another way, charitable givers might not have volunteered
their aid had they known that the victims would be fully compensated by public monies. Our
interpretation would recognize as total compensation all the money received by a claimant from
all sources to make the victim, or victim's relatives whole precisely the result Congress intended.
The Period Between Filing Comments And The Effective Date of the Regulations.
The Attorney General in his Notice of Inquiry and Advance Notice of Rulemaking stated
asked for guidance on when the VCF should become effective. The Section suggests that the
Attorney General consider pushing the effective date at least 60-days afte December 21, 2001 to
allow the Department and the Special Master as much time as possible to create the claims
apparatus the Act envisions.
Enough time should be set aside to handle the great amount of work that will be required
to prepare for entertaining and determining claims. Congress created in the Act a blueprint for an
somewhat complex claims process. The Attorney General needs to choose a Special Master.
The Department must realign existing staff to administer the claims process or contract for the
needed personnel. The Attorney General and the Special Master must identify and hire qualified
lawyers to act as hearing examiners. The Claim Form must be designed and printed. The
procedure for filing claims must be reduced to writing and published in a manner expected to
reach all potentially eligible individuals. The list runs long. In addition, the determination of a
claim will be the exclusive remedy for the thousands that elect the procedure. Consequently, we
believe it incumbent that the Department take care to create as close to an ideal process as
possible. Although some individuals already filed civil actions or have irrevocably committed to
doing so soon, truncating the time available to create the process simply to provide those people
with an alternative to litigation should not take precedence over the careful creation of the claims
process.
* * *
The Section appreciates this opportunity to comment on the Proposed Rule. If you have
questions concerning our comments, please contact Richard Theis at (202) 307-0116.
Respectfully submitted,
FBA Alternative Dispute Resolution Section by:
(*) The Federal Bar Association is an association of attorneys who practice in various areas of law relating to the Federal Government. The Alternative Dispute Resolution Section of the Federal Bar Association, which consists of attorneys engaged in the resolution of legal differences without resort to litigation or in conjunction with, and as an alternative to, litigation is authorized by the Constitution of the Federal Bar Association to submit public comments on pending legislation, regulations, and procedures concerning alternative solutions in lieu of the litigation of federal issues. These comments have been prepared by The September 11th Claims Process Task Force of the Alternative Disputes Resolution Section, with the direction and approval of Section leadership. The views expressed in these comments reflect the position of The September 11th Claims Process Task Force. They have not been considered or ratified by the Federal Bar Association as a whole, or by any Federal agency or other organization with which Section members are associated through their employment or otherwise. The comments reflect the views of the Task Force members in their individual capacity and not that of their employers.