A handful are taking their chances and filing lawsuits instead against the airlines, the owners of the World Trade Center and the government. But the majority have done nothing. Kenneth Feinberg, the government-appointed special master of the Victim Compensation Fund, is hoping to convince them to file with the fund–and soon. The deadline for filing is less than four months away. NEWSWEEK’s Jennifer Barrett spoke with Feinberg about why so many families have yet to file and what he can do to change their minds before it’s too late. Excerpts:
NEWSWEEK: Is the Victim Compensation Fund working?
Kenneth Feinberg: I think it has worked out splendidly. I don’t think you’ll find many critics of the program. The proof can be found in the number of applications to the fund. There have been approximately 2,600 individual applications to date. About 1,400 are death claims and about 1,200 are injury claims. Contrast that with the number of lawsuits against the airlines or the World Trade Center–I think there have been about 69 lawsuits total, and in the last six months, less than half a dozen have been filed. Many are coming to the fund as an alternative to protracted litigation. That’s the good news.
What’s the bad news?
Over half of the families still have not filed with the fund. They have not sued. They have done nothing. That’s troublesome, because the statute that created the fund mandates that the fund end on Dec. 22, 2003. Anybody who does not file a claim by then is barred from participating in the program. There is nothing I can do about that. Only Congress could change it, and I don’t envision Congress extending the date. So my primary task between now and Dec. 22 is to convince as many people as I can–even if they are in grief or in fear–to come into the fund. It is the best, most effective alternative to litigation. And I’ll do my best to convince them.
More than half the eligible families have not yet filed death claims for their loved ones. Why do you think that is?
The primary reason is grief. I have visited individual families and told them they could get $2 million or more tax free, and their reaction is sobbing. They tell me to just leave the application. They say they can’t put numbers on their loved one’s life. They can’t cope. The second reason is fear. There are about 100 undocumented family members who are afraid that if they file, they will be deported. Only about 20 have filed, even though the attorney general and the INS [Immigration and Naturalization Service, since restructured as the Department of Homeland Security’s Bureau of Citizenship and Immigration Services] have issued a regulation promising that they will not be deported. No action will be taken against them for filing with the fund. But it is not easy to convince these undocumented families that they are immune to deportation. Then there is the natural human nature that says we still have time. We are too busy working now, or taking our vacation. There are still months to go.
Will any exceptions be made for those who miss the Dec. 22 deadline?
If they at least file the claim form, we’ll let them file–even if they supplement the claim later. But it is dangerous to wait. If people file late, we will have to make certain assumptions about their claim. We will still be in business after Dec. 22 processing claims, but only until June 15 of next year.
Did any of the claimants file a lawsuit before changing their mind and joining the fund instead?
About a half a dozen have filed a lawsuit then dropped it and urged admission into the program. About 50 to 65 people seem to be going forward with the lawsuits, but I would not be surprised to see more of them come into fund. There are also hundreds who have sued Osama bin Laden and the Saudis and the Sudanese. You can elect both–you can sue [outside parties] and join the fund. But you cannot promote a lawsuit against the World Trade Center or the airlines or Massport or the Port Authority and participate in the program.
Do you think you can convince the remaining majority of families to file with the fund before the deadline?
I have publicly stated that by the end of the program 90 percent of eligible claimants will have filed. It doesn’t look that way right this second as we approach the second-anniversary date, but in October and November and December, we should see a real spike in claims. Over 45 percent of families have filed. We should more than double that.
What are you doing to convince families to join the fund?
Starting the first week of September, I am going around the country and meeting with families in groups and town hall meetings and individually and reminding them of the deadline and urging them to file–and offering help in filing. I am going to take every last step in an effort to reach these families. Hopefully they will recognize it is important to move on without in any way diminishing the memory of those lost on 9/11. This fund can help them help them and their children get on with life. It is important they take advantage of it.
How were many families have you met?
Virtually 90 percent of the families. I don’t think there are many that can claim they didn’t know about the program at this point. We’ve printed up information in English, Chinese, Spanish and other languages to reach foreign families. There were 450 foreign nationals from 61 foreign countries who died in the attack. We’ve enlisted the State Department and the Red Cross.
How many claims have been settled to date?
We’ve disposed of about 1,000 through award payments or dismissal–if we find it’s ineligible or it’s a lapsed claim filing.
Can you give an example of why a claim would be dismissed?
Someone claimed physical injury and it turns out they weren’t even in the vicinity that day, or they suffered mental injury but not physical. Or, in some cases, a family of a deceased claimant filed in a year ago but then they let it lapse and didn’t follow up with the additional information required.
Have you had many fraudulent claims?
There have been less than a dozen questionable claims. We are very, very careful about that. If it is the slightest bit questionable we send it over to the fraud division of the Department of Justice.
How much money has been distributed so far?
About $650 million.
How long does the claim process take on average?
Once you file a claim and give us all the back-up material, we can process it within 30 to 40 days. But very often individual claimants will file partial claims and not provide the back-up information we need, like tax forms. So it will sit for months. Once we have the basic information to corroborate the claim, it doesn’t take long.
What’s the average claim payment now?
The average in death claims is about $1.6 million. They range from $250,000 to as high as $6.1 million. The lower numbers reflect a situation where the victim had a great deal of life insurance or other collateral sources of income [which are deducted from the fund payment]. Injury claims range from as low as $500 to one case in which a burn victim suffered third-degree burns over 85 percent of his body. He got just short of $7 million. I met him and his family. We awarded him that amount based on the pain and suffering he went through. He had a three-to-five-month hospitalization and hundreds of painful skin grafts–to think of what this individual went through and survived.
Some families have claimed that the formulations used in the fund are unfair. But so far, judges have upheld the legality of the fund and said the regulations are “lawful and valid.” Do you agree?
Absolutely. The court, in a ringing defense of the program, summarily dismissed those lawsuits. The fund is working appropriately and in consistency with its mandate. I feel the fund has been vindicated. For those who think it is arbitrary, I remind them that everything is relative. If you want to see arbitrary, go forward with litigation. You could be waiting over a period of maybe 10 years to litigate the claim.
There are some loved ones who fall into gray areas, like gay and lesbian life partners of terror-attack victims. Will they be compensated through the fund?
They have been compensated in cases where the deceased left a will where they designated the fiance or the same-sex partner as the beneficiary. If there is no will, then we look to the law of the state where the decedent resided and follow that state’s law. Where it recognizes fiance or domestic partners we do–where it doesn’t, we don’t.
Are you concerned that it might seem a bit unfair to base this decision upon what state they lived in–especially in cases of gay partners who did not have an option get married?
It’s tough, yes. But what we do is attempt to work out a reasonable settlement between the fiance [or partner] and the biological parents or whatever family is entitled to take the money. In almost every case, we have worked out a satisfactory settlement.
There were some cases in which you didn’t?
There have been one or two where we haven’t been able to and we told the parties to go to a surrogate court and fight it out there. But that’s very rare.
Have the families’ reactions to the fund changed as you’ve spent time with them?
I think most families are grateful for the fund. Most families appreciate the difficulty in computing awards. I have been heartened by the reaction of most families who are grateful for the award. Some continue to be sort of overwhelmed by the task of putting numbers to a lost loved one, but I think they realize that this is a necessary aspect of getting the funds from the government.
There are no misconceptions now about the fund. I think they have been explained away and the reason there is much less acrimony than when it was first promulgated and established by Congress is because most misconceptions have been explained away not so much by word but by deed–by the issuance of checks. That’s why everyone has a lower decibel level about the fund now.
What you would tell those families who have not yet filed?
I would say to the families that I can’t begin to appreciate fully what you have gone through–nobody can who hasn’t experienced it. But I implore you to move forward with your lives and the lives of your loved ones, especially children, and take advantage of this unprecedented program of generosity and compassion. I know it’s hard. I know it’s difficult, but it would be compounding the tragedy if because of grief or fear you let the program deadline lapse without coming into the fund.
What will you do once the fund closes next summer?
I will quietly return to private practice where I can bill clients. I am doing this job pro bono without pay or compensation. Until then, I’m going to be working overtime to get everyone into the fund.
Do you have any regrets about being special master of the fund?
When the attorney general asks you to do something, you do it. But it is an extremely gratifying experience. I would do it again.
