Divvying up of 9/11 aid leaves few happy

As the special master of the September 11 Victims Compensation Fund, Kenneth Feinberg knows a lot about the anguish of bereaved families. He also knows that he can never make all of them happy.

Ever since the fund's interim rules were announced, they have been called too stingy, too generous, unfair to high-income families, unfair to low-income families, unfair to uniformed rescue workers, and unfair to those who lost family members in the Oklahoma City bombing or US Embassy terrorist attacks.

The fund's managers are still working towards a Jan. 21 deadline of agreeing upon a final set of rules and formulas to determine how to distribute federal funds among the families of Sept. 11 victims. But already the fund managers are discovering that, in trying to allocate who gets what and how much, they're having to grapple with a multifacted moral conundrum worthy of Solomon: How much is a life worth?

"I don't think this program can in any way, shape, or form correct all of life's inequities," says Mr. Feinberg. "I hope that it will solve some of them and minimize others."

While, it's a common adage that one can't put a price on life, courts do it all the time. But in this case it's the federal government, rather than federal judges, who will determine how the compensation money will be distributed.

While individual circumstances are likely to be factored into determining how the money is ultimately divvied up, victims' groups, New York Attorney General Eliot Spitzer, and several US senators have already been critical of the fund's proposed rules. In particular, they're worried that the $250,000 "pain and suffering" payment, which every family will automatically receive, might be too low. Adding to the dispute is a proposal that life insurance and pensions be deducted from the award, and that an earnings cap of $231,000 be used to calculate lost wages. On Thursday, the groups held a public rally in Manhattan to urge Mr. Feinberg to change the rules.

Critics note that Congress's airline bailout bill, which called for amends to Sept. 11 victims, also came paired with a cap on airlines' liability in lawsuits resulting from the tragedy. The protection is of concern to some.

"They said they wanted to treat everyone equally," says Stephen Push, whose wife was a passenger on American Airlines Flight 77, "and I think they're accomplishing that - they're shortchanging everyone." The way Mr. Push, who serves as treasurer of Families of September 11, reads the statute, the fund should pay families the same amount they would see from a successful tort case. If the final procedures don't offer significant changes, he says, his group may consider suing the Department of Justice.

But others call the fund generous. It makes costly and lengthy litigation unnecessary, and they point out that it is both unusual for such victims to be reimbursed to this extent and unlikely that a lawsuit would have been successful even without the liability cap.

"There is an important sense in which it is arbitrary to compensate these people while not compensating other victims," says Peter Shuck, a Yale law school professor and tort expert. "There is a sense in which no amount would ever be enough, but if we look at how these losses are indeed compensated ..., it seems these particular victims have little cause for complaint."

Even some of the fund's supporters concede that the $250,000 noneconomic (or "pain and suffering") payment might be unusually low. It's the most democratic part of the compensation - each victim, regardless of class, salary, or age, is entitled to the same amount. But in a typical courtroom, families might get eight or 10 times that amount for pain and suffering. "We think the [noneconomic] numbers are terrible, abhorrent, vastly insufficient," says David Golomb, chairman of the New York State Trial Lawyers Association (NYSTLA) 9/11 Pro Bono Committee.

But he considers the rules in other respects to be "quite fair, even generous," particularly in the light of New York's highly restrictive wrongful death law.

The aspect of the plan earning perhaps the most praise is the speed with which it will be carried out. Feinberg has promised that all awards will be made within 120 days of filing a claim. Families will also have free legal representation.

Some of the criticisms may simply involve misunderstandings. Victims have complained that many families may receive nothing, once pension and insurance payments are deducted. "[New York City firefighters] don't get a decent salary," says Jack Lynch, a Bronx resident whose son, Michael, was a member of Engine 40. "Benefits is one of the things they're compensated with. Now they're going to offset their benefits - it's like they're penalizing them twice."

But Feinberg has said several times since publishing the rules that he won't allow any family to walk away with nothing. "Even if the offsets would be zero," he says, "in my discretion, we will see what can be done."

Another sticking point has been the so-called "salary caps." At present, charts of presumptive awards exclude the top 2 percent of wage earners (those earning $231,000 or more). Feinberg says he's open to looking at individual circumstances, however, and he avoids the word "cap." Mr. Golumb of NYSTLA, who speaks regularly with Feinberg, also says he has been assured that victims with high incomes will receive higher awards than those published. "[The family] isn't going to get 20 or 25 million, but the awards will be substantially more than people are computing now," he says.

While families of high-earning victims complain that they won't be awarded enough, another group of critics questions the whole premise of basing awards on salary. "There's a basic issue ... of whether we want to restore people to some minimal level of well-being or restore them to the situation they would have been in had the accident not occurred," says Schuck. "In this case I probably would have opted for a minimal level of recovery for everybody, rather than try to replace what the tort system would have compensated in terms of income differential. But any one of these standards is vulnerable to attack as being less fair."

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