W000772

Friday, November 16, 2001 6:04 PM
Victims' Compensation Fund

Mr. Kenneth L. Zwick
Director Office of Management Programs
Civil Division
United States Department of Justice
Main Building - Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Re: World Trade Center Victims Compensation Fund

Dear Mr. Zwick:

Enclosed please find suggestions concerning the Regulations for the "Victims Compensation Fund", as well as a proposed sample claim form. I prepared these materials with the assistance of other aviation practitioners and experts. We have a combined experience level of over 150 years in aviation litigation representing many different perspectives. We hope this material will be helpful.

Finally, my firm represents over thirty (30) families who lost loved ones in the World Trade Center disaster. These families feel strongly that the Regulations should require individualized consideration of the tragic circumstances faced by each of them.

Thank you for your consideration.

Very truly

yours,

Comment by Baumeister and Samuels
New York, NY

Attachment 1:
Draft Victim Compensation fund Standard Claim Form

Attachment 2:
PROPOSED REGULATIONS FOR THE VICTIMS’ COMPENSATION FUND

TABLE OF CONTENTS

I. PROPOSED REGULATIONS AND EXPLANATIONS

A. Forms to be Used in Submitting Claims

B. Information to be Included on Claim Forms

C. Eligible Claims

D. Eligibility Determinations

E. Hearing Officers

F. Hearing Procedures

G. The Award

H. Final Award

I. Attorney and Expert Witness Compensation

J. Amendment

K. Definitions

L. Payment

M. Charitable Contributions

I. PROPOSED REGULATIONS AND EXPLANATIONS

A. Forms to be Used in Submitting Claims

1. The Special Master shall develop a standard claim form that Claimants shall use when submitting claims.
2. The Claimant shall submit his or her claim using the standard claim form, which shall be available electronically, by facsimile, by mail or at the Special Master’s office.
3. Instructions for preparing the claim form shall be available electronically or manually.
4. The claim form should provide the address where claims are to be filed by email, U.S. mail, in person or by facsimile. The form should provide a street and/or post office box address and facsimile number.
5. The claim form should state that claims are deemed filed on the post marked date for claims filed by mail and on the date of receipt by the claims office for claims filed electronically, by facsimile or in person.
6. The claim form should provide contact numbers for a staffed office equipped to answer any questions at length regarding ATSSSA claims procedures. The staff shall be appointed by the Special Master to assist Claimants in filing and pursuing their claims. Such persons shall not be part of the hearing process.
7. The claim form shall be in English with a statement that a claim form in Spanish is available to a Claimant upon request.
8. The claim form should state that a Claimant need not be a U.S. citizen or resident.
9. The claim form should state the eligibility requirements for being a Claimant.
10. The claim form should advise Claimants of their 405(b)(4) rights and recommend that Claimants seek counsel. [See explanation below*]
11. The claim form should list the items of damages recoverable under the Compensation System. The form also should explain generally what is meant by various items of economic loss (which may vary among the laws of the applicable states) and the various items of non-economic loss, which the Special Master can define.
12. The claim form should advise that the Special Master’s decision will be final and not subject to judicial review.
13. The claim form should advise Claimants that submitting a claim waives their right to sue in court for damages arising from the events of September 11, 2001 once a claim is deemed filed.
14. The claim form should state the penalties for filing a fraudulent claim.
15. The claim form shall contain the following statements:
a. "A submitted claim containing complete information as requested in this claim form (including all mandatory supporting documentation) shall be considered properly filed. Only properly filed claim forms may be eligible for relief from the Fund."
b. "A claim may be amended at any time prior to the close of a Claimant’s hearing. A Claimant may amend his or her claim by changing the amount of compensation sought, elements of damages or by supplementing his or her claim with the submission of additional supporting evidence."
c. The Special Master shall complete a review, make a determination and provide written notice to the claimant not later than 120 days after the date on which a claim is filed and not later than 20 days after the date on which a determination is made by the Special Master regarding the amount of compensation due to a claimant, the Special Master shall authorize payment to such claimant.
d. A claim shall not be deemed filed until the Special Master advises the Claimant in writing that the claim forms have been accepted.
*Explanation: We believe that all Claimants should have the advice of attorneys. For many Claimants, especially spouses of deceased victims who are mothers and fathers of children, the award provided by the Special Master will have an enormous impact on the rest of their lives. Moreover, submitting a claim to the Special Master waives certain legal rights, in particular the right to commence a civil action, that a lay person may not fully understand. Finally, the Special Master’s finding is final and not subject to judicial review. For this reason, claims forms, instruction manuals, and all on-line materials should expressly recommend that Claimants seek legal advice.

B. Information to be Included on Claims Forms [Tie in with             Form]
1. The claim form, developed by the Special Master, shall request the following information:
a. name, address and telephone number of Claimant;
b. whether Claimant is an injured party or whether Claimant is filing claim on behalf of a decedent;
c. decedent’s name, address and telephone number (if applicable);
d. marital status of Claimant and, if applicable, of the decedent and all relatives on whose behalf the claim is brought;
e. social security number of Claimant and decedent;
f. date and place of birth of Claimant and decedent;
g. Claimant’s relationship to decedent (if applicable);
h. name, age and Social Security number of each of the relatives on whose behalf the claim is brought (including dependents);
i. place of employment of Claimant and, if applicable, the decedent (address, telephone number, position, name of supervisor, number of years employed);
j. educational background of Claimant and decedent (name of high school, college, graduate school and year of graduation);
k. Claimant’s factual basis for eligibility;
l. Information concerning the physical harm that the Claimant suffered or, in the case of a claim filed on behalf of a decedent, information concerning the decedent’s death;
m. amount of compensation sought;
n. itemization of economic losses suffered as a result of the September 11 events (which losses shall include loss of earnings or other benefits related to employment, medical expenses, replacement services, loss due to death, burial costs, loss of business employment opportunities, etc.);
o. itemization of non-economic losses suffered as a result of the September 11 events (which losses shall include physical and emotional pain and suffering, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium [other than loss of domestic service], hedonic damages, injury to reputation, etc.); and
p. information regarding collateral sources of compensation the Claimant has received or is entitled to receive as a result of the September 11 terrorist attacks (which shall include life insurance, pension funds, death benefit programs, payments by Federal, State or local governments, but shall not include payments received from charitable organizations).

2. The claim form shall request that the Claimant submit copies of the following documentation in support of his or her claim: [Tie into             form]
a. birth certificates (Claimant, decedent and dependents) [mandatory];
b. marriage certificate (Claimant, decedent) [mandatory];
c. death certificate (decedent) [mandatory];
d. passport, visa or green card or other appropriate identification (Claimant, decedent) [mandatory];
e. federal income tax return or W-2 for years 1999, 2000 and 2001 (Personal injury Claimant, decedent) [mandatory if available];
f. Claimant’s or decedent’s medical records (hospital and treating physicians) for treatment of injuries sustained as a result of events of September 11;
g. verified written statement of how claimant or decedent sustained injury or death as a result of events of September 11 (the statement shall include where claimant or decedent was physically located at time of injury or death, and a description of the injuries sustained, if known) [mandatory];
h. financial records (personal injury Claimant, decedent) [mandatory if tax return is not submitted]; i. life insurance policies (decedent), disability documents, workmen’s compensation benefits, Social Security payments, pension documents, death benefit programs and medical insurance policies; and
j. any other documents or statements that the Claimant believes supports his or her loss.

C. Eligible Claims
1. A claim shall be deemed properly filed and eligible for compensation if it meets the following criteria--
a. The claim is for personal injury resulting in physical harm or death. "Physical harm" shall mean any direct injury to a person and any resulting condition, disability or loss that directly and in natural sequence is caused by the injury or death. Claims for property damage, emotional distress without physical harm or death, business interruption, etc. are not eligible.
b. The claim is made by an individual who --
i. was present at the World Trade Center (New York, New York), the Pentagon (Arlington, Virginia), or the site of aircraft crash at Shanksville, Pennsylvania at the time, or in the immediate aftermath, of the terrorist related aircraft crashes of September 11, 2001; or
ii. is an individual who was a member of the flight crew or a passenger on American Airlines flight 11 or 77 or United Airlines flight 93 or 175; or
iii. is the personal representative, i.e., a person duly qualified or appointed under an applicable state law, of a person described in (i) or (ii) above as defined in these regulations; and
iv. is not an individual identified by the Attorney General to have been a participant or conspirator in the terrorist-related aircraft crashes of September 11, 2001, or a representative of such individual.
c. The claim has not previously been properly filed by a Claimant for himself or on behalf of a deceased individual.
d. The claim is filed within 2 years of the date on which these regulations are published in the Federal Register.
2. A list of claimants and those on whose behalf they are claiming shall be maintained by the Special Master. The Special Master shall maintain an indexing system which shall include the date of filing, situs of the claim, and the documents submitted in support of the claim. This information shall be kept confidential and not disclosed except for good cause shown.

D. Eligibility Determinations
1. An eligibility determination is a determination that the person filing the claim is an eligible Claimant for compensation from the September 11th Victim Compensation Fund of 2001.
2. Screening Administrators, appointed by the Attorney General, shall review all claims forms and make eligibility determinations.
3. All eligibility determinations must be made by such Screening Administrator, on the basis of a properly filed claim, within 7 days of receipt of such claim. A properly filed claim shall consist of a completed claim form and supporting documentation.
4. The Screening Administrator shall find the Claimant (i) eligible; (ii) ineligible; or (iii) that there is insufficient information presented to decide eligibility, in which case he should reject the Claimant’s claim with leave to re-file. A claim lacking sufficient information will not be considered a filed claim for purposes of the 120 day period provided for in § 405(b)(3).
5. If a Claimant is determined to be eligible, the claim shall be scheduled for a hearing, and notice of the date, time and place of the hearing shall be given to the Claimant. All notices sent by the Special Master shall be sent by both regular mail and by certified mail, return receipt requested.
6. If a Claimant is determined to be ineligible, the Claimant shall be notified in writing immediately.
7. If the Claimant chooses to appeal, Claimant must submit a request for appeal within 10 days of receipt of notice of ineligibility. If the Claimant chooses to appeal the determination of ineligibility, the Claimant shall be entitled to an oral hearing, with a hearing date to be set no later than 10 days after Claimant submits a request for an appeal. Notice of the date, time and place of that hearing shall be given to the Claimant.
8. The Screening Administrator shall determine within 7 days of the filing of a claim whether the Claimant is eligible. If the Screening Administration determines that the claim is ineligible, either because the Claimant is ineligible or the claim is lacking sufficient information to process, Claimant shall be notified in writing of such deficiency. Such notice will detail what information the Claimant has failed to provide, and will inform Claimant that he or she must provide such information within the remaining limitations period to have his or her claim considered.

Because of the short time available to process claims, Claimants should be notified as quickly as possible when they are found to be ineligible. This will allow them to quickly move through the eligibility appeal process. It is possible that many Claimants found to be ineligible will simply have made mistakes in filling out the proper forms.
The Screening Administrator should be able to decide quickly whether the claim submitted lacks sufficient information. The 120 day time period should not begin to run until a Claimant is found to have presented sufficient information to determine eligibility. The statute allows for this, as § 405(a) states that a claim "shall state the factual basis for eligibility" and thus a claim lacking such a factual basis for eligibility should be deemed as not being filed under § 405(a), a prerequisite for the running of the 120 day clock, according to § 405(b)(3).

E. Hearing Officers
1. Hearing Officers shall be retired federal court judges, retired federal magistrate judges, or retired state court judges of courts of general jurisdiction or appellate courts. Hearing officers shall be selected from the locales where hearings are to be held and shall be in consultation with the Chief Judge of the United States District Court in the District(s) of said locations. Employees of the United States government, the airline industry or insurance industry shall not be selected as Hearing Officers.
2. Authority of Hearing Officers. Hearing Officers are authorized to:
a. Conduct formal hearings with respect to, and adjudicate claims in accordance with, these regulations and the Act;
b. Administer oaths and examine witnesses;
c. Compel the production of documents and appearance of witnesses by issuance of a subpoena;
d. Prepare documents for the signature of the parties;
e. Issue decisions and orders with respect to claims as provided in this part; and
f. Do all other things necessary to enable him or her to discharge the duties of the office.
3. A Hearing Officer may be removed by the Special Master because of incompetence, misconduct, neglect of duty or for other good cause shown.
4. No Hearing Officer shall conduct any proceedings with regard to a claim in which he or she is prejudiced or partial, or where he or she has any interest in the matter pending for decision. Upon assignment of a Hearing Officer, a Claimant may within 15 days challenge said Hearing Officer setting forth in writing the basis of said challenge. A decision to withdraw from the consideration of a claim shall be within the discretion of the Hearing Officer and reviewable by the Special Master. If the Hearing Officer withdraws, another Hearing Officer shall be designated by the Special Master to complete the adjudication of the claim in a timely manner but such withdrawal shall not extend the 120 day period within which a eligible claim shall be adjudicated.
5. No Hearing Officer shall be permitted to appear or act as a representative of a party under this part while such individual is employed as a Hearing Officer. No Hearing Officer shall be permitted at any time to appear or act as a representative in connection with any case or claim in which he or she was personally involved.
6. No Hearing Officer shall act in any claim involving a party that employed such Hearing Officer within one year before the adjudication of such claim.
7. The Attorney General shall appoint as many Hearing Officers as are necessary to review claims and make initial awards.
8. Claims will be assigned to a Hearing Officer by the Special Master;
9. All Hearing Officers serve at the pleasure of the Special Master.

Explanation: Section 405(b)(4)(B) expressly grants Claimants the right to present evidence, including the presentation of witnesses and documents. When this section is read in conjunction with section 404(3), granting the Special Master the power to employ and supervise "hearing officers," it is clear that the ATSSSA creates a right to a hearing. We believe such hearings should be conducted by retired federal judges or state judges of courts of general jurisdiction or appellate courts. The level of compensation for Hearing Officers should be set by the Special Master.

Finally, it may become necessary to remove Hearing Officers who produce arbitrary or capricious results. The power of the Special Master to do this should be absolute.

F. Hearing Procedures
1. Time of Hearings. All hearings and proceedings before the Special Master must be scheduled and completed within 120 days of the filing of the claim. The Claimant may extend said time or may waive the right to a hearing by making a written request to the Hearing Officer. Any such request must be signed by the Claimant.
2. Notice of Hearing. The Hearing Officer shall provide to the Claimant at least 10 days written notice of the time and place at which the hearing will be held.
3. Commencement of 120-day Hearing Period. The 120-day period for review and determination of a claim shall commence upon the date that the claim is deemed filed.
4. Time and Place of Hearing. Hearings shall be scheduled and held, to the extent practical, at a Federal District Court within 50 miles of the Claimant’s residence unless an alternative location is requested by the Claimant. At the request of the Claimant, the Hearing Officer shall provide for an opportunity to conduct a hearing via telephone, Internet or video conferencing.
5. Parties of Proceedings. The following persons shall be parties to the proceedings on claims: (a) the Claimant, Claimant’s attorney and any authorized representative and (b) the government acting by and through authorized personnel of the Department of Justice. Parties may waive their right to appear.
6. Burden of Proof. The burden of proving a fact alleged shall rest with the party making the allegation. The standard of proof shall be a preponderance of the evidence. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.
7. Affidavits. Written affidavits or declarations, subject to penalty for perjury, will be accepted as evidence of employment history, earnings, loss of services and survivor relationships.
8. Rules of Evidence. The Hearing Officer is not bound by common law or statutory rules of evidence, or by technical or formal rules of procedure. The Hearing Officer shall conduct the hearing in such a manner as to best ascertain the rights of the Claimant and fulfill the purposes of the Act.
9. Documentary Evidence. A Claimant may submit either the original or a clear readable copy of any document. The Hearing Officer may require the submission of an original document, if an original exists, if necessary to a decision on the claim.
10. Witness. Witnesses at the hearing shall testify under oath or affirmation. The Hearing Officer and the parties may question witnesses with respect to any matters relevant and material to any contested issue.
11. Record of Hearing. All hearings shall be open to the public and shall be mechanically or stenographically reported. All evidence upon which the Hearing Officer relies for decision shall be contained in the transcript of testimony, either directly or by appropriate reference. All medical reports, exhibits and any other pertinent document or record, either in whole or in material part, introduced as evidence, shall be marked for identification and incorporated into the record.
12. Submission of Insufficient Evidence. In the event a Claimant submits insufficient evidence regarding any matter, the Hearing Officer shall inform the Claimant what further evidence is necessary and request that such evidence be submitted within a specified reasonable time which may, upon request by the Claimant, be extended for good cause.

G. The Award
1. Form and Contents of Decisions. Claim decisions shall be in writing and shall contain the names of the parties, the names of all beneficiaries of the decision, any finding of fact or conclusion of law, including the choice of law, the compensation due each claimant or beneficiary of a claim, any amounts being deducted as a collateral source, together with the reasons therefore. Collateral source deductions shall only be made from the award to the beneficiary receiving the collateral source. Decisions shall be based on the record before the Hearing Officer.
2. Issuance of Decision. All decisions shall be made not later than 20 days after the termination of the hearing and a copy of the written decision shall be promptly furnished to the Claimant and any attorney representative as expeditiously as possible. Upon request or agreement of the Claimant, the hearing can be continued to a time certain.
3. Review of Hearing Officer Decisions. Within ten days of the date of a decision the Claimant may request review of the decision by the Special Master. Such a request shall not extend the 120 day period without the consent of the Claimant. The review shall be conducted by the Special Master based on the record before the Hearing Officer.
a. A decision of the Hearing Officer shall be reviewed de novo by the Special Master.
b. There shall be no further review.
4. The initial award should not be limited to the amount of relief requested by the Claimant if the Hearing Officer believes the Claimant is entitled to a greater award. This will guard against the inequity of a pro se (or poorly represented) Claimant not receiving the compensation to which he or she is entitled.
5. Economic losses are to be determined by the Hearing Officer based upon the relevant information presented by the Claimant. Claimant shall have the option of selecting the law of the domicile or the situs of the accident. [See explanation below*]
6. Non-economic losses are not to be determined in accordance with any particular state law. Section 402(7) does not refer to "applicable state law." Moreover, § 402(7) presents a comprehensive list of non-economic losses which may be recovered. Few, if any, states allow for all of the non-economic damages which are specifically allowed by this statute. Therefore, using state law to determine non-economic damages will almost certainly conflict with the express language of the statute. [See explanation below*]
7. Some standard will still be needed to guide the determination of non-economic losses, specifically standards of proof (i.e., "preponderance of the evidence" and "reasonable certainty"), and some of the specific categories of damages will need to be defined in the regulations. § 404(a)(2) allows the Special Master to promulgate all procedural and substantive rules for the administration of this title.

*Explanation: As the Attorney General stated in the recent Notice of Proposed Rulemaking under § 405(b)(1)(B)(ii) the determination of the amount of compensation, for Economic loss and Noneconomic loss, payable to each Claimant shall be based ". . . on the harm to the Claimant, the facts of the claim, and the individual circumstances of the Claimant." Therefore, the amount of any award to any person entitled to receive compensation from the Fund shall be determined on an individualized basis.

H. Final Award
1. The final award shall be determined by the Special Master.

*Explanation: The Special Master is charged by § 405(b)(3) to "make a determination." Therefore, the final award must be signed by the Special Master.

I. Attorney and Expert Witness Compensation
A claimant need not be represented by an attorney to file a claim under the Act.
1. If the claimant desires to be represented, then the attorney selected by the claimant must be a member in good standing of the bar of the highest court of a state.
2. Attorneys on behalf of claimants shall attest that he/she is a member in good standing of the bar of the highest court of a state and is authorized to represent the claimant.
3. It shall be the ethical obligation of any attorney who represents a victim of the September 11th terrorist attacks to advise said person(s) of the compensation available under the Act and the availability of any pro bono program.

J. Amendment
1. These regulations may be amended in accordance with the Administrative Procedure Act, 5 U.S.C. 553.
2. No amendment shall prejudice the rights of Claimants who have previously filed claims or received awards from the Special Master.

K. Definitions
For purposes of these regulations and as used in the Act, except where otherwise provided, the following definitions shall apply:
1. Spouse. The term, "spouse", shall mean the person who is deemed by the laws of the state in which the claimant resides to be legally married to the claimant at the time of his or her death; or is deemed to be the claimant’s spouse under the laws of the state in which the claimant resided that would apply in determining the devolution of the claimant’s intestate personal property or would have the right of a spouse to share in the claimant’s intestate personal property under such laws.
2. Child. The term "child", shall mean any natural or adopted child of the claimant or decedent on whose behalf a claim is brought under the Act.
3. Minor Child. The term, "minor child", as used in these regulations, shall refer to any child who is no more than 18 years old, or no more than 23 years old where such child is enrolled full time as a student in a secondary or post-secondary educational institution.
4. Decedent. The term, "decedent", shall mean a person who has been declared by law or appropriate legal authority to be deceased.
5. Decedent Claimant. The term, "decedent claimant", shall mean a decedent person on whose behalf a claim is brought under the Act.
6. Dependent. The term, "dependent", as used in these regulations shall mean any person who received or reasonably would receive in the future services or support from the decedent or injured person.
7. Personal Representative of the Decedent. For the purposes of filing a claim under the Act, "personal representative of the decedent" shall mean a person duly qualified or appointed under an applicable state law.
8. Immediate Aftermath. The term, "immediate aftermath", shall mean the period commencing at the time of the crash of each of the air carriers in the September 11th attack, or the period commencing at the time of the collapse of any building that occurred on the same date as a result of such crash and terminating 48 hours thereafter, and shall be extended beyond such period only to include efforts by authorized persons to rescue persons or recover human remains from the site of the collapse of any such building or crash.
9. Physical Harm. The term, "physical harm", shall mean any direct injury to a person and any resulting condition, disability or loss that directly and in natural sequence is caused by the injury.
10. Present At. The term, "present at", shall mean being within the described physical location, within any building at the described physical location, or in such proximity of any described physical location so that a person suffered physical harm due to impact from any part of an aircraft or building within a described physical location.
11. Collateral Source. The term "collateral source" shall include payments to the Claimant from sources of compensation or benefits, including life insurance, pension funds, death benefit programs, and payments by Federal, State or local governments as a result of the terrorist-related aircraft crashes on September 11, 2001. It shall not include any grants or gifts given, or expected to be given, to the Claimant as a result of the terrorist-related aircraft crashes on September 11, 2001, from any non-profit, religious or other charitable 501 (c)(3) organization.
12. "collateral source compensation . . . has received or is entitled to receive". For the purposes of determining the amount by which to reduce a Claimant’s or beneficiary’s compensation due to collateral source compensation, the Special Master shall consider collateral source payments received by the Claimant or personal representative of decedent and collateral source payments that are reasonably certain to be due Claimant or personal representative of decedent in the future. A collateral source shall reduce the amount of economic compensation awarded to the individual who received or is entitled to receive the collateral source payment. Reasonably certain means collateral source payments as to which there is either a statutory or contractual right or fully vested interest at the time of the final determination.
13. Structured settlement. The term "structured settlement" means future periodic payments paid through an annuity contract, policy or similar instrument.

L. Payment
The Special Master may, in his discretion, pay the award either to the Claimant, or to the person(s) on whose behalf the Claimant has filed the claim. The Claimants may elect to receive all or a portion of the compensation in either a lump sum or in a structured settlement. The Special Master shall be entitled to require releases or other documentation including indemnities, if he deems appropriate and necessary.

M. Charitable Contributions shall not be considered Collateral Sources for the purposes of the Act.
Including charitable contributions as collateral sources would be contrary to statute because they are not in the same class of payments as the examples of collateral sources listed in the statute (See § 402(4) ). The examples of collateral sources in the statute are all payments or assets that belong to the decedent by statute or contract. Charitable donations are not of the same character. It also would be contrary to the spirit of charitable giving to include charitable contributions within the definition of collateral sources to defeat or lessen a person’s claim.
Under 404(a)(2)(B)(iii), a claim form must include "information regarding collateral sources of compensation the Claimant has received or is entitled to receive as a result of crashes." While a Claimant might have already received some charitable compensation, much of his compensation may come after the Claimant completes the Special Master process or during the Special Master process. Furthermore, Claimant is not "entitled" to receive that money. For these reasons, the regulations should make clear that charitable contributions are not considered a collateral source.

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