Comments on Justice Department's Rulemaking on the September 11th Victim Compensation Fund

Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue NW
Washington, D.C. 20530

Re: Comments on the Department of Justice’s Rulemaking Regarding the September 11th Victim Compensation Fund of 2001

The American Civil Liberties Union respectfully submits the following comments in response to the Department’s November 5, 2001 Notice of Inquiry and Advanced Notice of Rulemaking Re: the September 11th Victim Compensation Fund of 2001. The ACLU urges the Attorney General to make the Fund available to same-sex partners of deceased victims. Unless the Attorney General takes that step, same-sex partners will have no choice but to have the courts apply the authorizing statute’s choice of law rule to order relief under the laws of states that recognize the right of a same-sex partner to recover for the death of his or her partner.

The purpose of the September 11th Fund is to provide victims of the September 11th terrorist attacks with the ability to recover relatively quick and certain compensation from the government in exchange for a waiver of claims they might otherwise have against the airlines or other entities that may have been negligent or otherwise culpable in the hours, days, or weeks leading up to the attacks. To encourage the maximum number of potential claimants to elect compensation through the Fund instead of through the courts, the Fund must be designed to ensure that all potential claimants who could recover in court could also recover through the Fund.

One action the Department can take to encourage the maximum number of potential claimants to elect compensation through the Fund rather than through the courts is to ensure that the regulations implementing the Fund recognize same-sex partners of decedents or injured parties as potential beneficiaries of the Fund. Failure to do this could have far-reaching ripple effects: For every individual who cannot recover for his or her loss through the Fund, at least one more piece of litigation will likely result in the courts.

Same-sex partners, if excluded from the scope of the Fund, could pursue litigation based on the laws of many states, including states whose laws already do or are likely to recognize same-sex relationships. The Fund’s authorizing legislation provides that anyone electing to seek compensation in court, as opposed to through the Fund, must bring suit in the United States District Court for the Southern District of New York. See Section 408(b)(3). However, the legislation also provides that the “substantive law for decision in any such suit shall be derived from the law, including choice of law principles, of the State in which the crash occurred . . . .” Section 408(b)(2) (emphasis added).

While the crashes occurred in New York, Pennsylvania, and Virginia, the choice of law rules of those states could easily result in the application of other states’ law to the disputes. For example, the law of Massachusetts or New Jersey could apply, since the planes took off from Boston and Newark as well as Dulles. The law of Washington state could apply, since some of the planes were manufactured and fitted with inadequate cockpit doors there. And the law of a variety of other states, including California, could apply, since machines such as the x-ray machines used to examine luggage or metal detectors used to screen people prior to boarding the planes were likely manufactured in many different locales. Thus the law of at least five states, but most likely that of many more states, may ultimately determine who can sue to recover for the losses occurring on September 11th. These states include New Jersey, whose law would allow a same-sex partner to recover for the death of his or her partner, and California, which has provided the same rights through case law and statute. In addition, if same-sex partners are excluded from recovery through the Fund, they will have no choice but to pursue what we believe will be powerful state and federal constitutional attacks on any state laws that would exclude them from recovery by failing to recognize their committed relationships with the deceased.

For the foregoing reasons, the ACLU urges the Attorney General to reduce the likelihood of what could be a new flood of litigation by ensuring that same-sex partners of victims of September 11th be eligible for recovery through the Fund.

Thank you for your attention to these comments. Please do not hesitate to call us if you need any additional information regarding this matter.

Respectfully submitted,

Laura W. Murphy
Director
ACLU Washington National Office

Christopher E. Anders
Legislative Counsel
ACLU Washington National Office

Matthew A. Coles
Director
ACLU Lesbian & Gay Rights Project