On September 22, 2001, Congress enacted Public Law 107-42, the Air Transportation Safety and System Stabilization Act. The Act was an immediate response to the perceived need to save air carriers from the possibility of devastating tort liability or the inability to secure insurance coverage for losses resulting from the terrorist attacks on the United States on September 11, 2001. The prospect of a disruption to domestic air service and the attendant economic consequences prompted a congressional response of stunning breadth and magnitude. Alongside the desire to protect a vital national industry came the additional decision to provide a compensatory regime for the victims of the terrorist attacks. Thus, in addition to compensating the air carriers, Title IV of the Act established the “September 11th Victim Compensation Fund of 2001.” The stated purpose of the Fund was to provide compensation, and a no-fault alternative to tort litigation, to any individual or personal representative of an individual who was killed or physically injured as a result of the aircraft crashes on that day. The Act provides that the Fund will be administered by a Special Master appointed by the Attorney General. On November 26, 2001, Attorney General John Ashcroft appointed Kenneth R. Feinberg as Special Master. The roughly $4 billion Fund, as part of the Act’s $15 billion dollar bailout of the airline industry, will provide for an average payout of $1.85 million to each victim’s family—an unprecedented level of federal financial assistance.
The inclusion of the September 11 Fund in a study of reparations programs requires some introductory exposition. Although the origin of the Fund may well lay in the political exigencies surrounding a perceived threat to the viability of the nation’s air carriers, there is no question that the compensation program has taken on a life of its own. In loosely categorizing this Fund within the broad outlines of a reparations program, we can identify certain critical aspects that distinguish the Fund from a damages pool or even an administrative version of civil tort recovery. It is because of the unique characteristics of the September 11 Fund that its inclusion within a comparative evaluation of international reparations efforts is justified. But we should be clear at the outset that there are as many differences as similarities. Perhaps most central, those who were injured or killed on September 11 were not singled out for harm or targeted on the basis of a salient group characteristic. Nor was it the intent of Congress to create a reparations program; as we will develop below, Congress entered the arena in a desire to provide financial security for the airline industry and backed into the victim compensation scheme as a result of the perceived unseemliness of providing compensation to companies but not individuals. Because of the imperfect fit, the Fund’s contribution to any reparations case may lie as much in a cautionary tale about the creation of elaborate administrative schemes as the mechanisms through to compensate victims—initial motivations for the program aside. Nonetheless, this Study will attempt to situate the Fund, albeit imperfectly, within the concept of reparations which will be based on five critical factors:
Compensation for harms beyond the ordinary risks associated within any specific society. Thus, reparations seek to compensate for a category of harms that are not considered part of what happens to citizens in the normal course of life in that society, no matter how unpleasant or unwarranted. Thus, reparations are distinct from programs of social insurance compensating for disease or death or economic misfortune, or even for the misfortune of being a victim of crime.
Reparations hold as their objective the creation of an after-the-fact form of social insurance for harms whose existence and scope were not anticipated as within those encountered in the normal course of life in any given society.
Reparations seek to compensate for harms that are suffered as tears in the social fabric rather than a matter of individual fate or fault. Reparations generally correspond to a perceived sense of societal failure to provide for the security of the individual citizen or a defined community within the broader society.
Reparations do not conform to any easy conception of corrective or distributive justice. The aim is to provide for compensation social reintegration of those who suffered the identified harm, and in many cases to allow the social reintegration of those who were victimized.
The source of the funds in a reparations program need not be the wrongdoer. Although many reparations programs, particularly those imposed by a militarily victorious force over the vanquished, do obligate the wrongdoers to undertake the financial burden of reparations, the object is independent of the source of the funds.
Put in the affirmative, the general outlines of a reparations program are defined by compensation outside the normal operations of the civil or criminal justice systems, compensation to victims outside general measure of social insurance, and the use of no-fault/no-trial administrative structures to award compensation for the victims. With these governing criteria, we turn to the origins, scope, and structure of the September 11 Fund.
Scope of coverage.
The events of September 11th have spawned a program of reparations unparalleled by any other public compensation program in American history. What is it that differentiates September 11th victims from people who suffer severe harm unrelated to such acts of terror? Reparations are not a generalized form of social insurance, made available by a government to its citizens as a safety net in the event of death, unemployment, or lack of individual resources, but a form of relief offered for calamities outside the realm of a civilized world. An act of international terrorism on the scale of that which the United States experienced on September 11th goes beyond the normal risks associated with living in this democratic society. The American government, even without any acceptance of charges that it might not have not done enough to identify and prevent such devastating security breaches, felt itself compelled to act on behalf of the significant loss of life, injury, property damage and potentially crippling economic fallout that resulted from the terror of that day. The tragedy of September 11th is therefore distinguishable from street crimes, or most natural calamities. It also differs from instances of domestic terror, such as the bombing of the federal building in Oklahoma City, in that it was carried out by foreign nationals and presumably funded and coordinated overseas. The perpetrators methodically penetrated American institutions and security for an orchestrated attack on several strategic targets. The harm was imposed from outside the borders of the country by an entity whose sole purpose was to destroy American life and property.
It is because the attack on Americans symbolized an attack on America itself that lawmakers expedited passage of the Act to compensate families for wrongs committed against their deceased and injured family members.3 Since its enactment, proposals have been put forward that would expand the Fund to include other victims of international terror, independent of September 11th, namely, those involved in the 1998 bombings of American Embassies in East Africa.4
The Fund seeks to compensate victims financially for the wrongs they have suffered in a campaign of terror intended to take lives based on political or national association. Still, a notable difference between the Fund and other programs is that the source of the harm was not an authoritarian domestic regime or internal conflict. However, consistent with other models, the Fund seeks to provide a guaranteed financial settlement intended to allow families immediate economic benefits and a sense of closure to their ordeal by inducing them to seek compensation outside the civil tort system. Implicit in public discussions of the Fund, there is also a desire by lawmakers that the government is seen as doing all it can to ease the pain of those who have suffered since September 11th.
Nonetheless, we would misstate the origins of the September 11 Fund if we did not acknowledge that the original and immediate concern was the fate of the airline industry, not the victims of the terrorist attacks. It is possible to distinguish the September 11th attacks from earlier acts of terror, such as the Oklahoma City bombing, based on the foreign origin of the perpetrators of September 11th. This might serve as a salient distinction in addressing the limitation of the Fund to the recent attacks, but it would misstate the origin of the program in a congressional desire to forestall potential tort claims against the airlines for arguable negligence in the safety precautions they undertook. The Fund thus stems from complicated and often inconsistent motivations; it is for this reason that the Fund neither fits neatly within the parameters of a traditional reparations program, nor does it wholly dismiss the underlying compensatory goals of such a program.
III. THE CONGRESSIONAL RESPONSE.
Public Law 107-42, the Air Transportation Safety and System Stabilization Act (the “Act”), was introduced, debated and passed by Congress in a matter of hours the evening of September 21, 2001. Owing to the imminent economic disaster to befall the airline industry, and in turn the U.S. economy, as a result of the terrorist attacks, Congress expedited passage of the law and enacted swift remedies for the airlines and victims alike. The legislative process leading up to enactment of the Act demonstrates the speed and urgency with which members of Congress reacted to the overwhelming economic losses expected to devastate the airline industry. At 6:08 p.m. on Friday, September 21, 2001, the House Committee on Rules presented to the House of Representatives House Resolution 244 (H.R. 244) for consideration of a bill to preserve the continued viability of the United States air transportation system (H.R. 2926 Air Transportation Safety and System Stabilization Act). At 8:49 p.m., H.R. 244 passed with a vote of 285 in favor and 130 against. Immediately thereafter, consideration of H.R. 2926 commenced, introduced by Representative Don Young (R-AK). At 11:06 p.m., upon conclusion of the floor debate, H.R. 2926 passed with 356 votes in favor and 54 votes against. The companion bill in the Senate (S. 1450) was introduced by Senator Thomas Daschle (D-SD) and passed the same day with 96 votes in favor and one against. A unanimous consent agreement provided for passage of the House bill in the Senate if it remained identical to the Senate bill. Shortly before midnight on September 21st, a mere three hours after substantive discussion of the bill began, it was presented to President Bush, and signed into law as Public Law 107-42 the morning of September 22nd.
Although the Act received overwhelming support in Congressional debates on September 21st, its drafting history prior to passage suggests a more troubled route to the floor of Congress. While no public officials disagreed that the tragic events of September 11th required immediate government response and financial support for those directly affected, the extent and scope of that support was nonetheless the subject of considerable congressional wrangling and compromise. At its inception, the purpose of the Act’s precursor bill, H.R. 2891, A Bill to Preserve the Continued Viability of the United States Air Transportation System, was, simply, to meet the significant needs of the airline industry mounting in the wake of the terrorist attacks. It was intended purely as an economic bailout scheme, with provisions to provide loans, loan guarantees, and other compensation to carriers that suffered direct losses on September 11th. Compensation for victims killed and injured on September 11th was not an original consideration by H.R. 2891’s sponsors when initially introduced in the House.
A week before passage of the Act, on Friday, September 14th, Chairman of the House Committee on Transportation and Infrastructure Don Young (R-AK) and Representative and Ranking Member of the Committee Jim Oberstar (D-MN) introduced in the House H.R. 2891. In urging the House to pass the bill, Rep. Young declared,
[O]n September 11, 2001, the FAA grounded every air carrier in this country within a 2-hour period. This is absolutely necessary for the safety and protection of our country and our people…As private industries, they put the welfare of the American people above their own profit and their own welfare. Unfortunately, we are now facing a serious crisis that may result in a severe reduction in our air transportation system. We will be, in the very near future, facing layoffs of the airline industry, reductions in flights…The ripple effect on our economy will be enormous…The purpose of H.R. 2891 is to keep our U.S. air transportation system alive and able to serve its important functions for our country, because we shut down the industry. The bill will provide an immediate ability to the President to provide loans and other assistance to U.S. air carriers, and also to compensate those carriers who can document direct losses because of the actions of our government to protect our national security. The current crisis requires this action be taken as quickly as possible to preserve not only the financial viability of the airlines, but also to protect the general public welfare.5
Rep. Oberstar echoed the sentiments of Rep. Young in underscoring the bill’s necessity to safeguard the economy; in doing so, he also hoped to preempt concern that they were seeking passage of the bill too rapidly for thoughtful discussion and review. Rep. Oberstart declared,
What we are proposing to do tonight is to get an authorization in place so that when financial markets open on Monday, airline stocks do not tank and airlines do not go under and they shut down forever. That is what this is about. Yes, it is on short notice; no, we did not go through the hearing process. We did not have time. We consulted with all that we could in the very short period of time. We are facing an airline crisis and the airlines need some recognition that Congress will act to prevent a financial liquidation of the airline industry.6
Rep. Oberstar’s preemptive warning did not succeed in garnering support for the bill from his fellow members. Despite Rep. Oberstar and Rep. Young’s requests for unanimous consent to discharge the bill from committee and consider the measure on the floor, an objection to do so was heard and upheld.7 H.R. 2891 thus failed to pass in the House, and was consequently sent to the House Committee on Transportation and Infrastructure for hearings to review and revise the bill. On Wednesday, September 19, 2001, Chairman Young opened his Committee’s hearings with repeated calls for support of the bill.8 Such calls warned that without assistance from the Federal government, major airlines would begin layoffs and other downsizing schemes that could lead to full-scale economic crisis. Warnings that September 11th victims and their families would suffer severe financial hardship without government support remained conspicuously absent.
Representatives of all major airlines, including aerospace labor organizations and the Teamsters Union, attended the hearing. As a result, concerns voiced by representatives of the airline industry about their economic losses dominated the Committee hearing. Beyond their federally-grounded planes, the silence in airport terminals, and potential airline industry layoffs and stock tumbles, airline executives were especially anxious about exposure to liability through civil suits and obtaining insurance at affordable premiums, if at all. Leo Mullin, Chairman and CEO of Delta Airlines, addressed such concerns to the Committee, stating
I must discuss…the liability issues arising out of the tragic role cast on aviation in this attack on America. The events of September 11 are unique, with terrorists for the first time in history using a commercial aircraft as an instrument of destruction. We believe, however, that the resolution of claims arising from the act of war should be resolved by Congress enacting appropriate federal laws rather than by resorting to the widely divergent principles of state common law. If that is not the case, then while…airlines named as defendants will necessarily defend themselves in litigation, the massive response time and uncertainty as to the outcome of litigation will almost certainly frustrate an airline's ability to raise needed capital in the short term. In addition, it may well prevent airlines from purchasing necessary insurance until such time as the litigation is concluded. And what's more, some carriers are reporting drastic increases in premiums, and other carriers fear that insurance may not be available at any price…Mr. Chairman, it is absolutely critical that this issue be addressed in your legislation as it is a critical element of the overall financial impact of the tragedy on our industry.9
What little was said on behalf of the victims and their families during the Committee hearing was initiated by Representative Max A. Sandlin, Jr. (D-TX) in response to the concern over airline liability. Discussions between Rep. Sandlin, Hollis Harris, Chairman and CEO of World Airways, and Kerry Skeen, Chairman and CEO of Atlantic Coast Airlines, illustrate the secondary role that a fund to support the victims and their families played in comparison to the desire to provide financial support to the airlines.
Sandlin: Is there any advice you could have to us on how we could work together as an industry and as a Congress to provide relief to the families and the victims without further victimizing the victims?
Harris: Well, are you talking about now the victims on the ground?
Sandlin: Yes, sir.
Harris: I think the…basic insurance that we carriers have had would take care of the passengers and the victims…on the airplane, but I don't know the answer to the third party body and…property. It is so vast. I don't know exactly where you have to draw the line there.
Sandlin: Do you think some of the money that we've set aside to help the airlines, and certainly we want to help the airlines, should some of that be set aside for a claim fund by the victims? Would that be something to consider or not?
Harris: Technically, I'm sure you could put it in the bill and it could be set aside. I don't know -- I really don't know if it's workable...because of the large number of people involved…
Skeen: My comment on that, if you don't mind, would be that…those type of funds are not in the…request, as I understand it. [It] is my understanding, that those numbers were not built into Mr. Mullin [Leo Mullin, Chairman and CEO of Delta Airlines] and ATA's model.
Sandlin: I think that's correct, but I was just asking generally, without getting into dollars, if you had any ideas, and you might want to think on that and talk with us later…You said the government should absorb the liability of [the airlines]. One, do you think we have enough information right now to move on those issues or should we pause and do a little more research? [S]econdly, do you have any suggestions -- maybe some sort of creative suggestions on what we might do…to address the immediate and current needs of our families as a whole? Maybe part of the money should be set aside in a relief fund and delivered immediately…. I'm asking for some input or something that you think might be helpful to families.10
Following the Committee hearing, and the increasingly divergent opinions over the scope of compensation for the airline industry, Congressional members initiated talks on a new compromise bill. Dubious of the perceived overly generous support the Federal government was intending to bestow upon the airlines, some Democrats, echoing the concerns of Rep. Sandlin, sought complimentary measures that would ensure victim and airline employee relief.11 Some Republicans, however, maintained concern that a victim relief fund could cost the government untold sums, arguing that the liability issue should be dealt with at a later date.12
In the week following September 14th, a bipartisan emergency package emerged that would accommodate the needs of the airline industry and those of the victims and their families. Finally, late in the evening on Thursday, September 20th, following President Bush’s address to a joint meeting of Congress, Senate lawmakers and White House officials met behind closed doors to hammer out a final deal on a consensus bill to be introduced to Congress the next day.13 In exchange for capping the liability of the airlines at their insurance levels should victims or their families pursue civil actions against them, a provision for compensating victims and their families on a no-fault basis was swiftly added. Uncertainty over how the tort system would facilitate the provision of damage awards for economic and non-economic losses of victims and their families contributed to the addition of this provision that would guarantee such compensation without further burdening the airlines.
The provision, now Title IV of the Air Transportation Safety and System Stabilization Act, otherwise known as the September 11th Victim Compensation Fund (the “Fund”), was added to H.R. 2926 under the guidance of House Democratic Leader Richard Gephardt (D-MO), House Speaker Dennis Hastert (R-IL), Representative Oberstar and Ranking Member of the House Judiciary Committee, Representative John Conyers, Jr. (D-MI). Thus H.R. 2926, the product of the House Committee on Transportation and Infrastructure hearings and other extensive bi-partisan negotiations, subsequently went on to win Congressional approval and passage into law the next day.14
The Fund, due in large part to the haste with which it was drafted and enacted into law, is thus a precarious prescription for the losses suffered by victims and their families as a result of the terrorist acts of September 11th. Included as Title IV of the Act, it nonetheless bears little connection to other provisions of the Act, reaffirming its conception as a sudden afterthought to remedies sought for the beleaguered airlines. Indeed, the Fund’s very inclusion within legislation entitled “Air Transportation Safety and Stabilization Act” bespeaks its secondary importance. Absent any preamble discussing the context and general intent of the provision, the Fund is instead encapsulated by a simple purpose briefly stated in section 403: “It is the purpose of this title to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001.”15
Further, details on the administrative procedures necessary for the Fund’s efficient and effective disbursement are scant. Although the Fund provides for a claims process to be completed by those eligible, it leaves all details of the claims forms, eligibility criteria, and methodology for determination of award amounts to the Special Master alone. The Special Master is accorded significant discretion in his power to issue all regulations to administer the Fund according to section 407. Specifically, he is authorized to promulgate all regulations with respect to:
forms to be used in submitting claims under this title [Title IV];
the information to be included in such forms;
procedures for hearing and the presentation of evidence;
procedures to assist an individual in filing and pursuing claims under this title; and
other matters determined appropriate by the Attorney General.16
By contrast, the administrative procedures the Fund itself specifies include only that claims be made before December 31, 2003, that the Special Master complete a review and make a determination of compensation no later than 120 days after the submission of a claim, that payment to the claimant be authorized no later than 20 days after a determination is made, and that claimants waive their right to file a civil action. Strikingly, under section 405 subsection (4)(c), the Fund also vests in the Special Master authority to determine the due process rights of the claimants. This power together with the rule in section 405 subsection (b)(3) that the decision of the Special Master is final and not subject to judicial review grants overwhelming and almost unprecedented authority to a single individual charged with administering a victim compensation program. Such powers exceed even those vested in the judges who would hear civil actions brought by victims and their families who opt out of the Fund.
In its haste to provide compensation to the victims and their families, Congress appears to have sacrificed clear and explicit directives on how that compensation would be provided. The resultant Fund is therefore highly susceptible to criticism and inertia given the extensive provisions that are to be drafted and executed by one man.
IV. SOURCE OF FUNDS.
The September 11th Victim Compensation Fund, subsidized entirely by the federal government through a congressional appropriation, therefore differs substantially from most of its international counterparts in that there is no connection between the source of reparations and the wrongdoers. In almost all other cases, reparations have been established by governments seeking to compensate people they have victimized through past state action (or those victimized by predecessor regimes). The well-known German, Argentine and Chilean schemes, as well as that involving Japanese-Americans interned in World War II, all share this characteristic.17 By contrast, the American government played no role in perpetrating the September 11th attacks. It did, however, possess the means, political and logistic, to potentially have minimized its vulnerability to such devastating attacks, at least in theory. It is only under this hypothetical account, in which the American government is seen as not having done enough to prevent the terror of September 11th, that the Fund’s benefits can be considered genuine reparations for wrongs committed; absent this point, the Fund is merely a compensatory and restorative scheme for lives and livelihoods lost. Therefore, the lack of direct connection between the source of compensation and the perpetrators of the attacks has several important ramifications that make the September 11th compensation scheme fundamentally different from other initiatives that fall more comfortably within the reparations rubric. In particular, the notions of justice, reconciliation and restitution, typically central goals of reparation programs, are entirely absent from the September 11th scheme.
Justice is an abstract notion, but invariably it comprises both an effort to render a victim of wrongdoing whole and the punishment of the wrongdoer. For example, a burglary case is not considered resolved when the victim receives an insurance payment covering his loss. Through payments to victims by wrongdoing states or their successors, most reparation programs inherently seek to provide their beneficiaries with a sense that justice is being carried out. Such payments typically are accompanied and justified by expressions of remorse by the state for the past wrongdoing, with the explicit or implicit goal of providing victims with closure and a secondary goal, again often tacit, to attempt to preclude any recurrence. However, conspicuously absent from the congressional debates regarding the September 11th Fund is the suggestion that it was intended to give a sense of justice to the victims of the attacks; nor have any of the September 11th victims’ groups or individual victims made any public statement that the reparations will give them such a sense. To the extent that providing solace to victims is an objective of reparations programs, this calls into question the likely incorporation of the American effort into the general framework of reparations.
Closely related to the notion of justice is that of reconciliation. Most reparation programs are intended to mitigate or eliminate the resentment and desire for vengeance instilled in victims of massive human rights abuses, so as to reduce the potential of an ongoing cycle of violence and allow a country to put the wrongdoing in the past. For example, implicit in the Argentine and Chilean reparation schemes was a desire by the respective governments to ease the bitter political divisions that had ravaged those countries.18 By contrast, President Bush and Congress in no way sought to reconcile the beneficiaries of the Fund to their attackers. To the contrary, through its repeated public pledges to capture or kill those deemed responsible for the attacks, its military campaign in Afghanistan and other actions, the American government has demonstrated its commitment to vigilantly pursue the September 11th perpetrators.
Restitution is another common component of reparation programs. For example, a December 1999 agreement provided in principle that German companies that profited from slave labor during World War II would pay $5.1 billion in compensation to the victims of such practices.19 The government of New Zealand established a process through which land confiscated by the British in the nineteenth century may be returned to the Maori.20 Such examples are informed by the notion that those who benefit from systematic human rights abuses (or their successors) should disgorge their ill-gotten gains to the victims of the abuses. Whether or not anyone can be said to have profited unjustly from the September 11th attacks, there is no question that restitutionary principles are not found within the Act or the Fund.
The minimal legislative history related to the creation of the Fund suggests that its purpose was quite limited in comparison to the rationales behind most reparation programs for human rights abuses. The purpose of the Fund was simply to provide monetary compensation to victims and their survivors for their losses, so as to reduce consequent economic hardship. In this sense the September 11th scheme more closely resembles emergency relief funds for victims of natural disasters than it does reparations programs addressing human rights abuses.
It is worth noting that unlike in the cases of prior reparation schemes, the wrongdoers in the September 11th attacks are not viable sources of reparation funds. Al Qaeda is an international terrorist network, whose suspected financial backers have had assets frozen and rendered inaccessible. The Taliban government that most directly harbored and supported it no longer exists, and its successor lacks the resources to fund reparations.
V. Mode of compensation.
Typically, reparations are handled on an administrative basis that assumes the fungibility of the human experience under the conditions being repaired. In coming to terms with his country’s “Dirty War,” Argentine President Menem signed a decree providing that persons who had suffered detention by virtue of acts of military tribunals during the years 1976-83 would be eligible for reparations. Compensation would be based on the number of days in detention, plus a fraction of the length of detention commensurate to injury sustained as a result.21 Such calculations do not try to make a fine-grained analysis of the nature of the individual experience. In other words, they do not try to replicate the award of individualized legal damages under a tort system. The September 11th Fund is curious in that it seeks to induce individuals away from the tort system. As stated in the Act’s “final rule,” promulgated on March 13, 2002, the Fund “provides an alternative to the significant risk, expense, and delay inherent in civil litigation by offering victims and their families an opportunity to receive swift, inexpensive, and predictable resolution of claims.”22 As a consequence, its most difficult and most controversial aspects are the determinations of individual desert that Special Master Feinberg must make.
The Act provides that the Special Master issue the rules no later than 90 days after its enactment. On December 21, 2001, the Department of Justice and the Special Master’s Office released the “interim final rule” governing the Fund.23 The interim final rule, effective immediately as law, allowed for the submission of claims to begin and, more importantly, granted a 30-day public comment period. Upon publication of the interim final rule, the Special Master’s Office was inundated with thousands of e-mails, letters and calls commenting on the relative justice of the Fund’s distribution. The public comment period presented a unique addition to a reparations program because it specifically asked people to come forward with thoughts on how their individual experiences could best be compensated and accommodated. It deliberately sought contributions to the development of a final rule that would be attractive enough to lure individuals away from the tort system. This comment process resulted in some changes to the interim final rule as evidenced in the release of the final rule on March 13, 2002.
The comments that flooded the Department of Justice website represented opinions from a cross-section of society, including those directly and indirectly affected by the tragedy.24 The comments also reflected a deep divide in perspectives as to the purpose of the Fund itself. Those who supported the Fund and its distributional scheme supported it as a symbol of national healing, providing families of innocent victims with the means for their continued existence without having to revisit the tragedy year after year in protracted civil lawsuits. Others criticized its unsuccessful attempt to replicate the tort system and mirror past jury awards in airline litigation, citing the areas of compensation that are not equivalent to damages eligible in court. Still others criticized its overall approach to reparation, declaring that if any money is to be distributed, it should be distributed equally to all. These critics viewed the loss suffered by each family as indistinguishable and argued that quantifying awards based on income levels effectively declares a dishwasher’s life less valuable than that of a stockbroker. One commentator on the website stated “rich people do not deserve more because they are rich.” Special Master Feinberg has defended the Fund’s hybrid of quasi-reparation program and quasi-tort scheme as the most effective means of delivering a fair and equitable sum to each eligible claimant.
Of concern to most who commented was the level of compensation, given the required forbearance of civil litigation that could feasibly award higher damages than those provided for by the interim final rule. Others perceived the cold calculus of the award as forcing them to view the deceased instrumentally, much the same way courts handle wrongful death suits. Following common legal practice, the equation the Fund uses to calculate loss is based primarily on economic loss derived from an individual’s earning potential in life. It is in this manner that the Fund strays from other reparations programs, where the intent is to make victims psychologically whole irrespective of financial circumstances. The Fund values different lives differently, and refuses to weigh, individually, other non-economic harms, such as lost household services or pain and suffering (even in court, the latter harms would be compensated in a manner designed for “make whole” reparation).
The award calculation prior to the final rule was a product of explicit economic variables, with specific value allocations for each, including collateral offsets. First, tables of income projections, based on “expected remaining years of workforce participation,” multiplied by average yearly salary for the years 1998-2000, qualified by wage growth rates, estimated presumptive awards. For example, according to one projection, the spouse of a victim who earned $225,000 per year, caring for two young children, would be eligible for $3.8 million in compensation prior to offsets.25 Next, in addition to the economic calculation, the family would be eligible for a one-time, flat, award of $250,000 for non-economic damages plus $50,000 for each dependent (including the spouse). Subsequently, the award would be offset by compensation received from other sources, such as life insurance, pension benefits, social security and workers’ compensation. Additional offsets included the victim’s share of household expenditures or consumption as a percentage of income as well as a factor to account for risk of unemployment, all presented with assigned numerical values. Critics have referred to this as Special Master Feinberg’s “Robin Hood Strategy” given its resemblance to the adage of taking from the rich to benefit the poor.26 The collateral offsets remove from the calculus any supplemental financial sources that could conceivably add up to a windfall for some families if they were awarded a sizeable compensation package in addition to other insurance benefits. The offsets thus effectively equalize the differences in the awards.
Beyond opinions on the merits of the Fund as a reparations program, comments on the interim rule included concerns about the specific methods of award calculation. They raised issues regarding the fact that the Special Master’s schedules, tables and charts identified presumed economic determinations that were discriminatory against women and minorities. The projections, commentators argued, were based on outdated statistics of predominantly male workers and underestimated the advances made by women towards greater participation in the workforce, in addition to their longer life expectancy. Some comments suggested that income growth rates were too low, or that consumption rates were too high. Other comments raised concerns that domestic partners, heterosexual and homosexual, were being discriminated against because the rules rely on applicable state law to determine one’s eligibility as a personal representative. To the extent that a state does not recognize gay partners or fiancés as comprising domestic partnership, those individuals will not be eligible to claim compensation.
However, most of the comments seemed to be devoted to the calculations of the collateral offsets. The Act mandates that the total amount of compensation be reduced by the amount of money received through collateral sources, defined as “life insurance, pension funds, death benefit programs, and payments by Federal, State, or local governments related to the terrorist-related aircraft crashes of September 11, 2001,” that the victim or family has received or is entitled to receive. Many commentators claimed that deducting collateral compensation from the final award penalizes those individuals who bought life insurance or invested wisely to provide for their families. Moreover, the personal representative, from whose award the collateral proceeds would be deducted, may not necessarily be the beneficiary of the deceased’s life insurance or pension but would be penalized nonetheless. The potential for offsetting contributions made to victims and their families by charitable organizations was also raised as an inappropriate interference in private financial arrangements. Similar criticism met the suggestion that pension funds, 401(k) plans, and IRAs be offset; those benefits, critics argued, are essentially personal savings plans and should not be introduced into the calculus of economic loss. Partly as a result of the vague language of the Act and the resulting confusion over what would and would not fall within its definition of a collateral source, an overwhelming number of comments consistently raised the unfairness of any such collateral offsets.
Families of public safety officers killed in the line of duty on September 11th suggested that offsets affecting their compensation would be especially unjust, given the sacrifice made by the officers in risking their lives to protect those of their fellow citizens. Consequently, attempts to distinguish between civilian victims and public safety officers for purposes of calculating compensation amounts and collateral offsets have engendered debate and disagreement among families of victims. Speaking on behalf of public safety officers killed as a result of the attacks, some commentators emphasized that these men and women earn generous collateral benefits precisely because they place themselves in dangerous conditions such as those that cost them their lives on September 11th.27 Such commentators felt that the benefits should therefore not be denied. By contrast, families of civilian victims urged Special Master Feinberg to treat all victims equally when making decisions regarding economic loss calculations. Administrative decisions, they argued, should not be applied according to the victim’s line of work.
Congress, however, initiated the practice of granting public safety officers and their families particular, and priority, attention with respect to compensation, when it passed Public Law 107-37, entitled “Public Safety Officer Benefits Act,” on September 18, 2001—four days before establishing the Fund to compensate all other victims of the terrorist attacks. The stated purpose of the bill was “To provide for the expedited payment of certain benefits for a public safety officer who was killed or suffered a catastrophic injury as a direct and proximate result of a personal injury sustained in the line of duty in connection with the terrorist attacks of September 11, 2001.”28 Impassioned discussions of the bill reiterated the acts of heroism and bravery on the part of the firefighters, police officers, and other rescue workers who rushed to the scene of the attacks on September 11th.29 Families of fallen officers have looked upon this bill as the strongest support of their position that collateral resources not offset any compensation they receive through the Fund. The offsets, they claim, would be contrary to the congressional goal of swift payment of death benefits to which they are uniquely entitled.
Finally, an area that has also raised a significant amount of questions has been the fixed non-economic loss awards of $250,000 and $50,000 per dependent. Those who disagreed with the income-basis of award calculation argued that the fixed non-economic awards should have been higher to compensate for the differences in income levels. Others claimed that the figures were simply too low to adequately compensate for the emotional hardship they have endured since September 11th. Discontent regarding the amount of compensation soon grew into disagreement among the families over how to calculate increases in the figures commensurate with the grief suffered. Some recommended basing non-economic loss awards on whether or not the victim was able to communicate with the outside world prior to his or her death (and thus able to say goodbye), or, in the case of World Trade Center victims, whether the victim was trapped above the impact area as opposed to those located physically below it. Ultimately, most public complainants were only able to agree upon the fact that they disapproved of the approach proposed by the Special Master to compensate for non-economic losses.