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Senators Seek Changes In Sept. 11 Victim Fund Rules
[Four U.S. Senators are asking the overseer of the
Sept. 11th Victim Compensation Fund to improve the rules governing the
fund, to give the victims and their families more flexibility and to
ensure that each individual case is considered fairly. The public
comment period on the interim regulations ends Jan. 21. The Families
of September 11, an organization of victims' families, has organized a
rally in New York City Thursday evening in a show of support for
similar changes. Sens. Leahy, Kennedy, Schumer, and Clinton wrote a
letter to Special Master Kenneth Feinberg asking that the "fund
be implemented in a way that meets the intent of Congress to provide
fair, fast, and full compensation for the victims and their families
that truly reflects the losses they suffered in the horrific events of
September 11th and avoids lengthy legal actions." The senators
are concerned that the rules may unfairly cap damages in certain
situations and may not give victims a fair opportunity for them to
present evidence about their individual circumstances. The senators'
letter to Feinberg follows:]
January 17, 2002
Mr. Kenneth R. Feinberg
Special Master of the September 11th Victim Compensation Fund
Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Dear Mr. Feinberg:
We congratulate you on your appointment as Special
Master of the September 11th Victim Compensation Fund (the
"Fund"), and appreciate your hard work in publishing Interim
Final Regulations governing the Fund.
Although no amount of compensation can replace a
lost loved one, we believe the final rules governing the Fund will be
critical to fulfilling the intent of Congress to fairly and promptly
compensate the September 11th victims and their families. Generally,
the Interim Final Regulations follow this Congressional intent. There
are three areas of the Interim Final Regulations, however, that we
believe should be improved to fairly consider the individual
circumstances of each victim to determine just compensation – the
compensation for non-economic losses, the calculation of economic
losses, and the standards for hearings.
Specifically, we are concerned that the Interim
Final Regulations may impose an arbitrary dollar limit on non-economic
damages by inappropriately basing such damages on other federal
programs that limit payments to $250,000. The Fund's statute regarding
non-economic damages is quite clear. It defines the following elements
as compensable non-economic losses under the Fund:
[L]osses for physical and emotional pain,
suffering, inconvenience, 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, and all other
nonpecuniary losses of any kind or nature.
The types of losses enumerated in this provision
were chosen deliberately. Congress intended that each be fairly
considered and that victims and their families be compensated for all
elements that are applicable to them.
Concerning economic damages, we urge the Department
of Justice to ensure that the calculations of the presumed awards are
based on accurate data for relevant populations. Any estimates of
likely lost income used by the Department should replicate, as closely
as possible, the likely career earnings tracks of the victims.
Moreover, individuals and families should be given an opportunity to
demonstrate that the Department's estimates do not accurately portray
the likely earnings path of the victim on whose behalf they are filing
a claim. If this demonstration is made, the economic damages should be
adjusted accordingly.
Finally, the Fund's hearings should include a
meaningful opportunity to demonstrate that the presumed award does not
adequately compensate the victims and families for the damages they
have suffered. If this showing is made, the award should be adjusted
to provide the appropriate compensation. The Interim Final Regulations
call for modification of the presumed award only in
"extraordinary circumstances." This exceedingly high burden
of proof appears to unduly limit the ability of claimants to obtain
appropriate adjustments. In addition, the Interim Final Regulations
limit the duration of hearings to generally not more than two hours.
We believe that a meaningful opportunity for a
claimant to present information or evidence necessary to a full
understanding of the claim should not include proof of
"extraordinary circumstances" to receive fair compensation,
and should not generally limit a hearing to an unreasonably short
duration, such as two hours.
By amending the final rules to improve these three
areas, the Fund can be implemented in a way that meets the intent of
Congress to provide fair, fast, and full compensation for victims and
their families that truly reflects the losses they suffered in the
horrific events of September 11th and avoids lengthy legal actions.
This is in the best interests of all concerned, and we trust that you
will revise the regulations to ensure that this Congressional intent
is carried out.
We look forward to working with you to deliver fair
and prompt compensation to the September 11th victims and their
families.
Sincerely,
Patrick Leahy, U.S. Senator
Edward Kennedy, U.S. Senator
Charles Schumer, U.S. Senator
Hillary Clinton, U.S. Senator |
