Honorable John B. Bellinger, III, Legal Adviser, Department of State, to the Honorable

Transcription

1 FOREGN CLAMS SETTLEMENT COMMSSON OF THE UNTED STATES UNTED STATES DEPARTMENT OF JUSTCE WASHNGTON, DC n the Matter ofthe Clam of 5 U.S.C. 552(b)(6) Clam No. LlB--124 Decson No. LB--021 Clam No. LB--125 Decson No. LB--022 Clam No. LB--126 Decson No. LB~-023 Clam No. LB--127 Decson No. LB--024 Aganst the Great Socalst Peoples Lbyan Arab Jamahrya Counsel for Clamant: Paul M. Tendler, Esq. ORDER On March 21, 2013, the above-referenced clamants, 5 U.S.C. 552(b)(6) (collectvely, the "clamants"), fled two letters pettonng to reopen ther respectve clams aganst the Great Socalst Peoples Lbyan Arab Jamahrya ("Lbya") based upon mental pan and angush suffered as a result of the death of ther brother, 5 u.s.c. 552(b)(6), who was. klled on board Pan Am Flght 103 on December 21, The clamants fled ther underlyng clams pursuant to Category B of the Letter dated January 15, 2009, from the Honorable John B. Bellnger,, Legal Advser, Department of State, to the Honorable Maurco J. Tamargo, Charman, Foregn Clams Settlement Commsson, and each of the clamants was awarded $200,000 n decsons that have now become fnal. LB-11~124, LB , LB , LB

2 - 2 The clamants state n ther frst letter that they are pettonng to reopen "the ssue of ther awarded clams" because they "contend that there s a contnung and ongong nvestga~on regardng the bombng of Pan Am 103." The letter further states, Recent news reports ndcate hgh-level meetngs between the new Lbyan government and nvestgators from Scotland and the Unted Kngdom. t appears that new nformaton wll be avalable regardng ths matter. t s [the clamants] contenton that new nformaton has already been obtaned by government enttes but has not yet been made avalable to them. The clamants state n ther second letter that they are pettonng to reopen ther clams "based on nformaton that there are funds remanng." They "request that the remanng sum be dstrbuted to [them] n a far and equtable manner and all the funds collected n the settlement should be dstrbuted to the vctms." The Commssons regulatons, 45 C.F.R (), govern pettons to reopen before the Commsson. Among other requrements, the petton must be based on "newly dscovered evdence," and t must appear "that reconsderaton of the matter on the bass of that evdence would produce a dfferent decson." The frst letter does not explan what the asserted new nformaton s or how t mght affect these clams. Ths letter thus fals to establsh "that reconsderaton of the matter on the bass of the evdence would produce a dfferent decson." 1 The second letter also fals to satsfy the requrements of the Commssons pettonto-reopen regulaton. To start, t s not clear that the asserted new evdence-that there mght.be money remanng n the Lbya settlement fund-s the type of "newly dscovered evdence" that would warrant a petton to reopen. The "evdence" s not drectly relevant to 1 Moreover, secton 509.5() also requres the clamants to demonstrate t was not for "want of due dlgence that the evdence dd not come sooner" to ther knowledge. As to the "new nformaton" alleged n the frst letter, the clamants do not specfcally address ths requrement. Snce the clamants have faled to show that the new evdence would produce a dfferent c;ecson, the Commsson need not decde the "due dlgence" ssue. LB--124, LB--125, LB--126, LB--127

3 - 3 the njury that clamants suffered. Buteven acceptng t as "newly dscovered evdence" for purposes of ths petton, the consderaton of ths evdence would not "produce a dfferent decson." Whenever the Commsson has decded the amount of compensaton for clams n the Lbya Clams Program, the amount of money n the Lbya settlement fund was smply not a factor. Rather, n determnng the amount that successful Category B clamants were to recover, the factors the Commsson took nto account were the State Departments recommendaton, nternatonal law prncples, and the September 11th Compensaton Funds awards for smlar losses. See, e.g., Clam of 5 u.s.c. 552(b)(6), Clam No. LB -044, Decson No. LB--001, PD at 9-10 (2009), and Clam of 5 U.S.C. 552(b)(6),Clam No. LB--125, Decson No. LB--022, FD at 4-5 (2012). Clamants decsons are now fnal, and the Commsson sees no reason to change ts approach to decdng these clams now. Because the Commsson carefully consdered all the factors t vewed as relevant n determnng clamants compensaton and because the amount of money n the Lbya settlement fund was not one of the relevant factors, "reconsderaton of the matter on the bass of the amount of money n the fund would not "produce a dfferent decson." The Commsson reterates ts sympathy for the pan and sufferng clamants have endured, and does so wth full knowledge that no amount ofmoney can truly compensate for the death of a loved one n such horrfc crcumstances. These Pettons to Reopen must be dened, however, because they fal to satsfy the requrement n the Commsson;s regulatons that consderaton of newly submtted evdence "would produce a dfferent decson." LB--124, LB--125, LB--126, LB--127

4 - 4 Accordngly, t s ORDERED that the Pettons to Reopen these clams for further consderaton be and they are hereby dened. Dated at Washngton, DC, Aprl.).7)"., 2013 and entered as the Order of the Commsson...-~,: ;,.... e;.,(l Anuj C. Desa, Commssoner "-".. L B , LB , LB--126, LB

5 FOREGN CLAMS SETTLEMENT COMMSSON OF THE UNTED STATES UNTED STATES DEPARTMENT OF JUSTCE WASHNGTON, DC ~ the Matter ofthe Clam of 5 U.S.C. 552(b)(6) Aganst the Great Socalst Peoples qbyan Arab Jamahrya ~ Counsel for Clamant: PROPOSED DECSON Clam No. LB Decson No. LB Paul M. Tendler, Esq. Ths clam aganst the Great Socalst Peoples Lbyan Arab Jamahrya ("Lbya") s, based on mental pan and angush suffered by 5 u.s c. (b)( ) as a result of th~ death of her brother, 5 u.s.c. 552 (b)( 6 ), who was klled on board Pan Am Flght 103 on December 21, Under subsecton 4(a) of Ttle of the nternatonal Clams Settlement Act of 1~49 ("CSA"), as amended, the Commsson has jursdcton to receve, examne, adjudcate, and render a fnal decson wth respect to any clam of... any natonal of the Unted States... ncluded n a category of clams aganst a foregn government whch s referred to the Commsson by the Secretary of State. 22 U.S.C. 1623(a)(l)(C) (2006). On January 15, 2009, pursuant to a delegaton of authorty from the Secretary of s Jate, the State Departments Legal Advser referred to the Commsson for adjudcaton sx categores of clams of U.S. natonals aganst Lbya. Letter from the Honorable John B Bellnger, ll Legal Advser, Department of State, to the Honorable Maurco J LB

6 - 2 Tq,margo, Charman, Foregn Clams Settlement Commsson ("January Referral Letter"). Category B ofthe clams referred conssts of clams of U.S. natonals for mental pan and angush who are lvng close relatves of a decedent whose death formed the bass of a death clam compensated by the Department of State provded that (1) the clam was set forth as a clam for emotonal dstress, solatum, or smlar emotonal njury by the clamant named n the Pendng Ltgaton; (2) the clamant s not elgble for compensaton from the assocated wrongful death clam, and the clamant dd not receve any compensaton from the wrongful death clam; (3) the clamant has not receved any compensaton under any other part of the Clams Settlement Agreement, and does not qualfy for any other category of compensaton n ths referral; and (4) the Pendng Ltgaton aganst Lbya has been dsmssed before the clam s submtted to the Commsson. d. at ~ 4. Attachment 1 to the January Referral Letter lsts the suts comprsng the P~ndng Ltgaton. The January Referral Letter, as well as the December 11, 2008 referral letter from the State Departments Legal Advser to the Commsson ("December Referral Letter"), followed a number of offcal actons that were taken wth respect to the settlement of clams between the Unted States and Lbya. Specfcally, on August 14, 2008, the Ufted States and Lbya concluded the Clams Settlement Agreement Between the Unted States of Amerca and the Great Socalst Peoples Lbyan Arab Jamahrya ("Clams Settlement Agreement"), 2008 U.S.T. Lexs 72. On October 31, 2008, the Secretary of Stkte certfed, pursuant to the Lbyan Clams Resoluton Act ("LCRA"), Pub. L. No , 122 Stat (2008), that the Unted States Government "has receved funds pjrsuant to the clams agreement that are suffcent to ensure... payment of the settlements referred to n secton 654(b) of dvson J of the Consoldated Appropratons A(h, 2008 (Publc Law ; 121 Stat. 2342); and... far compensaton of clams of natonals of the Unted States for wrongful death or physcal njury n cases pendng on th~ date of enactmentof ths Act aganst Lbya..." January Referral Letter, supra,~ 1. LB--124

7 dn the smh e day, the Presdent ssued Executve Order No , 73 Fed. Reg. 65,965 ; (Oct. 31, :f008), whch, nter ala, espoused the clams of U.S. natonals comng wthn the terms ~ f the Clams Settlement Agreement, barred U.S. natonals from assertng or ~antan~g such clams, termnated any pendng sut wthn the terms of the Clams Settlemen~ Agreement, and drectng the Secretary of State to establsh procedures., g6vernng clams by U.S. natonals fallng wthn the terms of the Clams Settlement : Agreemen. On July 7, 2009, the Commsson publshed notce m the Federal Regster arnouncng the commencement of ths porton of the Lbya Clams Program pursuant to the CSA and the January Referral Letter. A(Jjudcat~n Program, 74 Fed. Reg. 32,193 (2009).. BAJSS OF THE PRESENT CLAM Notce of Commencement of Clams on July 1, 2010, the Commsson receved from clamants counsel a completed St,atement of Clam and accompanyng exhbts n support of the clam, ncludng her brth cert4cate and the brth certfcate of Charles T. Fsher, V. On October 27, 2010, th~ Comm~ sson receved from clamant s counsel supplemental materal, ncludng a copy of cl4mants U.S. passport. Clamant has also provded evdence of her ncluson 1 as a name~ party n the Pendng Ltgaton referred to n Attachment 1 of the January. R~ferral Ldtter, n whch she set forth a clam for emotonal dstress, solatum, or smlar njury; and lthe dsmssal ofthe Pendng Ltgaton aganst Lbya. Th~ clamant states that she s the sster of 5 u.s.c. 552 <bl( 6 l, who was klled : orl Decem~er 21, 1988 on Pan Am Flght 103, and that she had a very close relatonshp. w~th her ~rother and was deeply hurt by hs death. Clamants clam ncludes a d~claraton l by her attorney, made under penalty ofperjury, whch states that: LB--124

8 . -4 [Cl]amant] sought to partcpate n the settlement. That request was de4ed by the estate representatve as was the request for a share of any po~ on of the settlement funds. Accordngly, [clamant] has not receved anx money from the $10 mllon settlement between Charles T. Fsher V 1s estate and Lbya, nor has she receved compensaton from any other sotfce as a result of her brothers death nor has she receved compensaton from any other for her emotonal trauma and the loss of her brothers SUJ:lport an d compamons. h 1p. D$CUSSON Jursdcton Unr er subsecton 4(a) of the CSA the Commssons jursdcton here s lmted to. the cate gory of clams defned n the January Referral Letter; namely the clams of 1 nbvdualj who: (1) are U.S. natonals; (2) are lvng; (3) are close relatves of a decedent : whose death formed the bass of a death clam compensated by the Department of State; (~~ as na~bd partes, made clams for emotonal dstress, solatum, or smlar emotonal ; njury n a Pendng Ltgaton case whch has been dsmssed; and (5) are not elgble for. cj mpensatton from the wrongful death clam, have not receved any compensaton from : th wrong~ul death clam, have not receved any compensaton under any other part ofthe Clams SeT ement Agreement, and do not qualfy for any other category of compensaton pursuant t9 the January referral. January Referral Letter, s upra,~ 4. A. NaJonalt As noted above, the January Referral Letter tasked the Commsson wth adjudcat~ and certfyng sx categores of clams of Unted States natonals. n Clam. : ofl 5 u.s.c. 552 (b)( 6 ), Clam No. LB--001, Decson No. LB--001 (2009), the ; cbmmss~n held, consstent wth ts past jursprudence and generally accepted prncples o nternatonal law, that n order for the natonalty requrement to have been met, the ; clamant rrust have been a natonal of the Unted States, as that term s defned n the Ct mmssj ns authorzng statute, contnuously from the date the clam arose untl the date of th9 Clmms Settlement Agreement. To meet ths requrement the clmmant has LB--124

9 - 5 provded copes of her brth certfcate and U.S. passport. Based on ths evdence, the 5 U.S.C. 552(b)(6) Commsson fnds that the clamant was a U.S. natonal at the tme was klled on December 21, 1988, and that she has been a U.S. natonal contnuously tnereafter ncludng on the effectve date of the Clams Settlement Agreement. B. Clamant Must Have Been Lvng at the Tme of the January Referral Letter The January Referral Letter states that Category B shall consst of clams of U.S. n4tonals for mental pan and angush "who are lvng" close relatves of a decedent w)10se death formed the bass of a death clam compensated by the Department of State. The Commsson notes that the January Referral Letter planly refers to clamants "who a(e lvng" and not "who are, or were, lvng." n lght of ths fact, the Commsson held n Clam of 5 U.S C. 552(b)(6) Clam No. LB--044, Decson No. LB--001 (2;010), that n order to qualfy for compensaton under Category B, a clamant must have bclen lvng as of the date of the January Referral Letter as well as at the tme of the ncdent whch served as the bass of the Pendng Ltgaton and caused the mental pan and angush. The Commsson fnds that clamant has satsfed ths requrement, as evdenced by her brth certfcate and her notarzed declaraton n support of her Stf1tement ofclam dated June 23,2010. C. Clamant Must Be a Close Relatve of the Decedent The January Referral Letter also states that Category B shall consst of clams of UJS. natonals for mental pan and angush who are lvng "close relatves" of a decedent whose death formed the bass of a death clam compensated by the Department of State. 1 5 U.S.C. 552(b)(6) T~e Commsson held n Clam of supra, that, for the l~ted purpose of Category B of ths clams program, the term "close relatves" 1 1he Commsson takes notce that the death of 5 U.S. C. 552(b)(6) formed the bass of a death clam compensated by the Department of State. LB--124

10 - 6 comprses the relatves of a decedent who are wthn one step of mmedacy to the decedent, namely spouses, chldren, parents and sblngs. The Commsson fnds that the clf;tmant has establshed that she s a close relatve of the decedent, as evdenced by cl~mants brth certfcate whch, n conjuncton wth the decedents brth certfcate, demonstrates that the clamant and the decedent had the same parents and that they were sster and brother. D. Pendng Ltgaton and ts Dsmssal To be elgble for compensaton under Category B of the clams referred to the Cpmmsson, the clamant must also be a named party who made a clam for emotonal dstress, solatum, or smlar emotonal njury n a Pendng Ltgaton case lsted n Attachment 1 to the January Referral Letter and must provde evdence that the Pendng Ltgaton aganst Lbya has been dsmssed. January Referral Letter, supra, ~ 4. The cl~mant has provded a copy of the Frst Amended Complant n Fsher v. Great Socalst Peoples Lbyan Arab Jamahrya, 04-cv-2055, fled n the Unted States Dtstrct Court for the Dstrct of Columba, whch names her as a party and states a clam for ntentonal nflcton of emotonal dstress. Addtonally, the clamant has provded the Dstrct Courts May 7, 2009 Order dsmssng wth prejudce the ltgaton, whch nbluded clamants clam, as evdence ofthe dsmssal ofths Pendng Ltgaton. Based or ths evdence, the Commsson fnds that the clamant was a named party who made a clam for emotonal dstress, solatum, or smlar emotonal njury n the Pendng Ltgaton and that the Pendng Ltgaton has been properly dsmssed. LB--124

11 - 7 E. Clamant Must Not be Otherwse Elgble For, and Must Not Have Receved, Compensaton To fall wthn Category B of the clams referred to the Commsson, the clamant must also be nelgble for compensaton from the wrongful death dam, must not have rdceved any compensaton from the wrongful death clam, must not have receved any compensaton under any other part of the Clams Settlement Agreement, and must not q~alfy for any other category of compensaton pursuant to the January Referral Letter. January Referral Letter, supra,~ 4. Clamant has represented to the Commsson, under penalty of perjury, that she has not receved, and that she s not elgble to receve, asde frbm under Category B, compensaton from the Department of State or from the Cpmmsson, pursuant to ether the December Referral Letter or the January Referral Letter. Clamant has also submtted n support of her sworn clam a declaraton by her attorney, also made under penalty of perjury, whch states that clamant "has not receved arly money from the $10 mllon settlement between 5 u.s.c. ssz(b)( 6 ) estate and Lbya, nor has she receved compensaton from any other source as a result of her b~others : death nor has she receved compensaton from any other source for her emotonal trauma and the loss of her brothers support and companonshp." On ths b~ss, the Commsson fnds that the clamant was not elgble for compensaton from the ~ongful death clam, dd not receve any compensaton from the wrongful death clam, dd not receve any compensaton under any other part of the Clams Settlement Agreement, and does not qualfy for any other category of compensaton under the Ja;lmary Referral Letter. Accordngly, the Commsson fnds that ths clam s wthn the Commssons jursdcton and that the clamant has satsfed the elements requred for compensaton p~rsuant to Category B of the January Referral Letter. LB--124

12 . ; COMPENSATON - 8 Havng concluded that the present clam s wthn the Commssons jursdcton and s compensable, the Commsson must next determne the approprate amount of compensaton. A. Amount n Clam ofs u.s.c. 552(b)(6) supra, the Commsson, wthout settng precedent for other categores or other clams programs, held that the recommended fxed award of $200,000 s the approprate amount of compensaton for elgble clamants u4der Category B of the January Referral Letter. djtermnes that the clamant 5 u.s.c. 552 <b>< 6 > $200,000. Accordngly, the Commsson s enttled heren to an award of B. nterest As regards nterest, n Clam of 5 u.s.c. 552 <b>< 6 > supra after consderaton 1 of prncples of nternatonal law and precedent decsons, the Commsson held that cqmpensable tort clams n ths clams program are not enttled to nterest as part of the awards made theren. d. Therefore, the award of $200,000 made heren consttutes the entrety of the compensaton that the clamant s enttled to n the present clam. LB--124

13 V. CONCLUSON - 9 Accordngly, the Commsson enters the followng award, whch wll be certfed to the Secretary of Treasury for payment under sectons 7 and 8 of the CSA. 22 U.S.C AWARD Clamants u.s.c. 552(bJ(6J s enttled to an award n the amount of Two H/Jndred Thousand Dollars ($200,000.00). D~ted at Washngton, DC, and entered as the Proposed Decson of the Commsson. APR Comlltls,ttn,,... on NOTCE: Pursuant to the Regulatons of the Commsson, any objectons must be fled wthn 15 days after servce or recept of notce of ths Proposed Decson. Absent objecton, ths decson wll be entered as the Fnal Decson of the Commsson upon the expraton of 30 days after such servce or recept of notce, unless the Commsson otherwse orders. FCSC Regulatons, 45 C.F.R (e), (g) (2010). LB--124