N002652
January 18, 2002
Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
US Department of Justice
Main Building, Room 3140
950 Pennsylvania Ave
Washington DC 20530
Dear Mr. Zwick:
This is in response to the request for comments on the Interim Final Rule (Rule)
implementing Public Law 107-42.
Public law 107-42, the Air Transportation Safety and System Stabilization Act (Act), is
designed to provide Federal financial relief to the American airline industry due to losses from
management mistakes and potential losses the airlines could sustain from their negligence in
failing to maintain reasonable security standards. It provides airlines Federal grants of $5
Billion, and loan guarantees of $10 billion. More importantly it ex post facto limits damages that
airlines are faced with from their negligence on September 11th to their insurance coverage.
As part of the stabilization of the airline industry, as well as to protect other potential
business defendants, the government has agreed to a fast track system for victim compensation.
In exchange for giving up their right to sue under various Federal statues and state tort or
wrongful death laws injured claimants or personal representatives of deceased claimants acting
on behalf of the decedents will be compensated by
the Federal government. Claimants are giving up a valuable right as judgements for damages
resulting from other terror attacks have been in the $100 million range.
The purpose of the victim compensation part of the Act is to compensate those injured or
killed on September 11th (Act, Sec 403.) Unfortunately the Special Master has interpreted his
mandate as not to compensate, that is to make whole for the loss incurred, but rather to "bring
some measure of financial relief." From this misinterpretation, presumably deliberate in an
attempt to reduce Federal expenditures, flow many of the problems with the Final Rule.
The first major problem with the Rule as written is that the Rule turns the application for
compensation into a crapshoot. Both the Act and Rule (as well as ancillary documents developed
by the Special Master) are vague as to what will be considered in determining compensation as
well as "collateral compensation" (setoffs.) While a claimant has no idea what if any
compensation they will receive since economic loss is unclear as well as setoffs, the claimant by
the simple act of filing precludes other more appropriate remedies (Rule, Sec 104.21 (d).) There
is no methodology in the Rule for a claimant to obtain an accurate assessment of whether it
would be more beneficial for them to pursue other remedies then file a claim under the Act. The
Rule should be amended to include a procedure for an assessment to be given prior to a claim
being considered filed. Such an initial assessment is not precluded by the Act.
The second major problem (and related to the first) is that the Rule gives no indication of
how the Special Master decides the many issues or how issues are settled as claims are paid.
There are no prior legal decisions providing precedent. A record of decisions needs to be
created. As the Act precludes judicial review such a record would assist claimants and assure
that there is no abuse of discretion. In particular, Rule, Sec 104.31 (b) 1, should be amended to
indicate that the Claims Evaluator will notify the claimant of "... the amount of the presumed
award, the basis for the decision..."
In view of the above, Rule, Sec 104.33 (g), should be changed to read "... the final
amount of the award and a written decision of the basis of the award. This document will be
made available to the public." Damage awards and other legal matters are generally public
records. That the compensation awards and decision making are public record infringes on no
right to privacy, provides transparency, and precludes abuse and safeguards equity in the decision
process.
The third major problem is the inherent conflicts between the Act and the Rule. My
comments will be based on the perspective of a personal representative of a decedent as the
claimant as they may differ from the issues affecting an injured claimant.
The personal representative of the decedent has no legal authority over the spouse,
beneficiaries or dependents of the victim (decedent claimant.) Spouses et. al. may have separate
causes of action (e.g. intentional infliction of emotional distress, loss of consortium or
companionship) arising out of state or federal law. Rule, Sec 104.21 (b) (1), should be changed
to eliminate all after "...of the Act." The claimant is the "...personal representative of the
decedent who files the claim on behalf of the decedent." (Act, Sec 405 (c) (2) (C). ) Under Act,
405 (c) (3) (B) (i), only the "...claimant waives the right to file a civil action..." The personal
representative has no legal authority to demand that individuals other than the claimant
(dependents, spouse or beneficiary of the victim) waive their rights.
Pensions, either as economic loss or as collateral compensation are not discussed in any
detail in any of the material provided by the Special Master or in the Rule.
Almost twenty percent of those murdered by Moslem fundamentalists on September 11th
were rescue workers (firemen, police, paramedics) or military. Their pension benefits are an
essential and valuable part of their compensation as the government has long recognized that the
arduous and dangerous nature of their occupations preclude long term employment.
Neither the Rule nor the Special Master's Presumed Economic and Non-Economic Loss
Tables (Loss Tables) consider pension benefits in determining economic loss. The Act broadly
defines economic loss as "...any pecuniary loss resulting from harm (including...other benefits
resulting from employment..." (Act, Sec 402 (5).) The Rule, however, narrows economic loss to
"...loss of earnings or other benefits related to employment..." and confines itself to a table based
on the individual's earnings in the last three years (Rule, Sec 104.43 (a)) (Underlining added.)
Further, the Loss Tables are based on the anticipated working life (till age 65), whereas the
pension benefit is normally a lifetime benefit (and ceases on the death of the recipient.)
The Rule and Loss Tables severely distorts to their detriment the actual economic loss
sustained by rescue worker and military decedent claimants. For example, a military retiree
working at the Pentagon would receive both civil service pay and a military pension. On the day
of death, both his pay and pension ceased. There is no pension benefit for the spouse of a
military retiree. The military retiree decedent claimant's economic loss is his lifetime pension
plus loss wages. Based on the Rule and Loss Tables, however, the only economic loss is the loss
civil service wages, a mere pittance of the actual economic loss.
Many of the rescue workers had vested pensions; others had anticipatory rights to
pensions. Valuation is not an issue as Courts have long dealt with such valuations in damage
awards and divorce cases.
Pensions as economic loss need to be addressed in the Loss Tables and Rule. The words
in Rule, Sec 104.43 (a), stating "related to employment" should be changed to read "resulting
from employment." All after that should be totally revised to include consideration of pensions
as economic loss. The Loss Tables need to be revised to include lifetime pension benefits.
Non economic loss is based on the decedent claimants loss, not damages suffered by
others who have there own separate causes of action. Why, therefore, does a decedent claimant
with a spouse and dependents receive more? The non economic loss of all decedent claimants is
hard to measure; the value of their life experiences should be the same for all. Rule, Sec 104.44,
should be changed to read "The presumed non economic losses for all decedents shall be
$250,000" (or whatever amount may be more appropriate.) All after should be deleted.
The issue of what payments are collateral sources considered as collateral compensation
is not clarified by the Rule, Loss Tables and the Special Master's Frequently Asked Questions
(FAQ). A review of the responses to date to the Rule indicates this is a major sore point.
Perhaps if the Special Master issued his Death Compensation Form clarification as to his intent
would be forthcoming.
The Act identifies collateral sources. It also specifically states that compensation
received by the claimant is reduced by the collateral source compensation "...the claimant has
received or is entitled to receive as a result of the terrorist-related crashes..." (Act, Sec 405 (b)
(6).) The Rule, Sec 104.47 (a), however, deletes that portion of the above that states collateral
compensation are payments to the claimant. The Rule should be changed to read "...reduced by
all collateral source compensation the claimant has received or entitled to receive, including..."
This would conform to the Act.
Failure to designate who is the recipient of collateral sources considered may result in
grave miscarriages. For example, a partnership may have a substantial policy on a decedent
claimant. That payment goes to the partnership, not to the decedent's survivors. To reduce
compensation to the claimants estate for this policy would be unconscionable.
The tenor of the comments from the Special Master, though not stated directly, is that
benefits paid to others than the claimant will be deducted from the compensation award. Yet
exceptions are made. The FAQ at 1.11 indicates that the Special Master will not subtract from
the award amount collateral sources where "...the contribution to the plan were deductions from
the the victim's compensation." Does this mean all plans where the contribution was from
compensation? For example, a military retiree's pension ceases on his death; there is no benefit
for the spouse. If the retiree so chooses, however, the retiree could contribute 14% of his
monthly retirement compensation to purchase a Survivors Benefit Plan that pays a surviving
spouse 55% of the retiree's retirement benefit. This is a voluntary plan purchased by the retiree.
Other retirement plans may have similar survivor benefit provisions. None of these plans make
payments to the claimant or the claimant's estate or the personal representative of the decedent
acting on behalf of the decedent as claimant. The Rule should be rewritten to eliminate all the
ambiguity regarding the issue of collateral compensation particularly in light of the lack of
judicial review and the amount of discretion provided the Special Master.
The fundamental flaw with the Rule is the discrepancy between the Act as written and the
special masters intent to limit compensation. This was not the congressional intent. When the
Act was enacted the Government was aware that its prior lack of action made the Moslem
fundamentalist attack on the United States so successful.
The United States was under constant attack by Moslem fundamentalist beginning with
their bombing on the World Trade Center in 1993. In response all our government did was issue
proclamations, make speeches, and fire a couple of missals in the air, landing God knows where.
The government's impotence supported the Moslem fundamentalist perception that America was
morally weak.
President Clinton reinforced this perception by his own degenerate personal behavior as
well as his often publicly proven tendency to lie to achieve his ends. Retaining Clinton in office
made us a joke to the world. It also bolstered the perception in this country that laws need not be
enforced if inconvenient, making the terror attacks easier to carry out.
Needless to say Clinton was not totally alone in being responsible for his eight years in
office. Our members of Congress from both parties failed to demand Clinton take responsible
action. Mesmerized by greed and the good times that globalization was supposedly
accomplishing; no one wanted to force Clinton to take real action that would require hard
decisions.
When Congress passed this Act it was their attempt to assuage their conscience for their
failure to protect the citizens of this country. A liberal interpretation as to what is just
compensation under the Act is required.
Thank you for your consideration. I realize many of these comments have been made
before, however, the vagueness of the proposed rule and the lack of response to the prior
comments by others compel me to respond as I have.
Sincerely,
Individual Comment
San Francisco, Ca