W000750
Kenneth L. Zwick
Director
Office of Management Programs
U.S. Dept. Of Justice
Civil Division
Main Building, Room 3140
950 Pennsylvania Ave., N.W.,
Washington, DC 20530
RE: RESPONSE TO REQUEST TO COMMENT, SEPTEMBER 11 VICTIM
COMPENSATION FUND OF 2001
Dear Mr. Zwick:
As Attorney General of the State of Connecticut, I am writing to provide comments on
issues relating to the implementation of the Victim Compensation Fund of 2001 ("the Fund"),
established pursuant to Public Law 107-42 to provide compensation to victims and families of
the September 11 terrorist attacks. I am grateful to United States Attorney General Ashcroft for
soliciting comments on issues essential to the Fund's administration.
As a basic premise, I urge the Attorney General to be guided by Congress' overriding
intent that the victims of the September 11 attacks obtain compensation for their losses as fairly,
speedily and simply as possible. In resolving any perceived ambiguity or issue, the guiding
principle should be to provide the most complete recovery with the least pain or cost to the
victims. For most affected directly by that terrible attack and its aftermath, no amount of money
can ever provide complete compensation, but each deserves the fullest, fairest recovery in light
of each individual's circumstances.
Since victims and their representatives will be required to forego their right to file civil
actions if they file claims with the Fund, the procedures and awards must foster confidence and
credibility. The process must be fair and perceived to be so.
In this vein, I offer the following specific comments:
With regard to the nature and amount of compensation, I believe that awards should be
individualized and tailored to the facts of each case, not made mechanically according to an
inflexible schedule or grid. Consistent standards are necessary, but a balance must be struck that
provides significant, fair compensation for each victim, and still advances Congress' goal that
claims and compensation be decided expeditiously. Even as consistent standards for measuring
the nature and amount of compensation must be developed for the sake of credibility and
fairness, consideration must be given to each individual claimant's special circumstances. I do
not believe Congress intended that any standards or guidelines be rigidly applied so as to result
in uniform, non-individualized awards.
Nothing in the law prevents a claimant from putting on proof of his or her special or specific
facts and situation. On the contrary, Section 405(b)(1) expressly requires the Special Master to
determine "the amount of compensation to which the claimant is entitled based on the harm to
the claimant, the facts of the claim, and the individual circumstances of the claimant."
Subsection (4) of that section gives claimants the rights to be represented by counsel
and to present evidence in support of their claims, including the presentation of witnesses and
documents. These sections would be nullified and rendered meaningless if rigid determinations
of compensation were made in the interest of uniformity or speed, without regard to individual
circumstances. In the interest of fairness and other goals of the legislation, then, I urge that
claims be evaluated individually, with consistent standards applied to each claim.
In addition to the rights to have counsel and to present evidence, Section 405(b)(4)(C)
expressly provides that claimants shall have "any other due process rights determined
appropriate by the Special Master." I urge you to provide the opportunity for some form of oral
hearing for claimants who request one. After talking to some of the victims' families and
analyzing provisions that require claimants to forego litigation if they avail themselves of the
Fund, I believe strongly that the department should do everything possible to ensure that
claimants have the opportunity to be heard fully. There should be some forum or venue at which
a record may be made. Since there will be no cross-examination, motions or other litigation
formalities, the proceeding should take comparatively little time. Whatever the specifics, such
procedures should justify each claimant in feeling that the system has been fair, and that his or
her own unique circumstances have been considered.
Section 405(b)(6) requires the Special Master to "reduce the amount of compensation...
by the amount of the collateral source compensation the claimant has received or is entitled to
receive as a result of the terrorist-related aircraft crashes of September 11, 2001." Section
402(4) defines "collateral source" as "all collateral sources, including life insurance, pension
funds, death benefit programs, and payments by Federal, State, or local governments related to
the terrorist-related aircraft crashes of September 11, 2001." This definition does not mention
payments that victims or their families may receive from charitable funds. I urge you to
interpret the scope of this statutory language narrowly in view of the fundamental purpose of
charitable gifts, which is to provide voluntary benefits separate and apart from any government
obligations or entitlements, and the overriding purpose of the Act, which is to provide full and
fair compensation. Such an interpretation, clearly consistent with the spirit and letter of this
measure, would exclude most if not all charitable benefits from consideration in setting
compensation from the Fund.
You have also sought comments about the content of the claim forms and procedures for
incomplete claims or those lacking supporting documentation. I encourage you to develop a
claim form that is not only easy to understand and use, but one that is sufficiently detailed so as
to apprise claimants of what will be necessary to have their claims administered. In the long run,
this will avoid unnecessary delay, and will give potential claimants a perspective with which to
decide whether to file a claim with the Fund or to proceed with litigation. I also urge you to
give persons filing incomplete forms an opportunity to provide the missing information within a
reasonable time frame, or to present a reasonable substitute for documentation if the required
information is impossible to obtain. For many victims, the trauma and grief of the terrorist
attacks, and the personal turmoil in their aftermath, may make completing these forms and
compiling evidence a daunting task. While certainly some documentation is necessary to
support each claim, I urge you to adopt a flexible approach in determining what evidence is
required.
I thank you for the opportunity to offer these comments and offer you any assistance I
can provide in carrying out this vital task.
Very truly yours,
Office of The Attorney General