Colaio v. Feinberg, 03 Civ. 0558(AKH).

Citation262 F.Supp.2d 273
Decision Date08 May 2003
Docket NumberNo. 03 Civ. 1040(AKH).,No. 03 Civ. 1129(AKH).,No. 03 Civ. 0558(AKH).,03 Civ. 0558(AKH).,03 Civ. 1040(AKH).,03 Civ. 1129(AKH).
PartiesJune COLAIO, as Administrator of the Estate of Mark J. Colaio, Deceased, Victor J. Colaio, as Administrator of the Estate of Stephen J. Colaio, Deceased, Frank John Aquilino, as Administrator of the Estate of Frank Thomas Aquilino, Deceased, Geraldine Davie, as Administrator of the Estate of Amy O'Doherty, Deceased, Joanne Lovett, as Administrator of the Estate of Brian F. Nunez, Deceased, Nancy N. Pedicini, as Administrator of the Estate of Thomas E. Pedicini, Deceased, and Maria A. Waring, as Administrator of the Estate of James A. Waring, Deceased, on behalf of themselves and all other similarly situated &#34;eligible individuals&#34; under 49 U.S.C. &#167; 40101, Plaintiffs, v. Kenneth R. FEINBERG, Special Master of the September 11<SUP>th</SUP> Victim Compensation Fund of 2001, John Ashcroft, Attorney General of the United States, and the United States Department of Justice, Defendants. Donna M. Smith, individually and as Executrix of the Estate of James Gregory Smith, and Jill I. Rosenblum, individually and as Executrix of the Estate of Andrew I. Rosenblum, Plaintiffs, v. John Ashcroft, Attorney General, United States Department Of Justice; and Kenneth R. Feinberg, Special Master, September 11<SUP>th</SUP> Victim Compensation Fund of 2001, Defendants. Cheryl Schneider, as the Executrix of the Estate of Ian Schneider, Deceased, Plaintiff, v. Kenneth R. Feinberg, John Ashcroft, and Department of Justice, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

John F. Cambria, Salans, New York City, for plaintiffs June Colaio, Victor J. Colaio, Frank John Aquilino, Geraldine Davie, JoAnne Lovett, Nancy N. Pedicini, and Maria A. Waring.

Marc S. Moller, Kreindler & Kreindler, New York City, for plaintiffs Donna M. Smith and Jill I. Rosenblum.

Jonathan C. Reiter, Law Firm of Aaron J. Broder & Jonathan C. Reiter, New York City, for plaintiff Cheryl Schneider.

Robert D. McCallum, Jr., Acting Associate Attorney General, with Peter D. Keisler, Shannen W. Coffin, Joseph H. Hunt, Craig M. Blackwell, Chad N. Boudreaux, James B. Comey, United States Attorney, for the Southern District of New York, and Andrew W. Schilling, Assistant United States Attorney, for defendants.

OPINION AND ORDER DISMISSING COMPLAINTS

HELLERSTEIN, District Judge.

More than 3,000 people died on September 11, 2001 from the terrorist-related aircraft crashes into the World Trade Center towers, the Pentagon, and the field in Shanksville, Pennsylvania. Those who died, in the airplanes and at the crash sites, were rich and poor, young and old, citizens and non-citizens, and in varied professions and occupations, united only in the unlucky coincidence of time and place.

Eleven days later, Congress and the President, reflecting the sentiments of a shocked and grieving nation, enacted the September 11th Victim Compensation Fund of 2001 ("the Fund") to provide compensation to the bereaved. Soon after, pursuant to the enacting legislation, a Special Master of the Fund was appointed, regulations were promulgated, and the Fund began to function. Now, a year-anda-half later, the deadline by which all claims must be filed, December 22, 2003, is fast approaching.

Inevitably, interpretive issues have arisen, and lawsuits have been filed. In the three suits involved in this decision, the plaintiffs, who are eligible to file claims with the Victim Compensation Fund but have not yet done so, allege that the regulations promulgated by the Department of Justice and the interpretive policies of the Special Master, Kenneth R. Feinberg, are arbitrary and capricious, violate the Air Transportation Safety and System Stabilization Act, 49 U.S.C. § 40101 ("the Act"), and unconstitutionally discriminate against them. Their central allegation is that the Special Master's proposed awards fail to reflect that many who died in the World Trade Center were earning, and would have continued to earn, much more than the Special Master is prepared to recognize.

All parties have agreed to a procedure that has brought these cases on for accelerated hearing and determination on an agreed record. Having heard the parties, I now deny plaintiffs' motions for summary judgment, and grant defendants' motions for judgment on the pleadings. Fed. R.Civ.P. 12(c), 56.

I. Background
A. The September 11th Victim Compensation Fund of 2001
i. Statutory Authorization

The events of September 11, 2001 caused Congress to take immediate action to address the financial crisis in the airline industry and the losses suffered by the victims and their families. On September 22, 2001, President Bush signed into law the Air Transportation Safety and System Stabilization Act of 2001, Pub.L. No. 107-42, 115 Stat. 230 (2001) (codified at 49 U.S.C. § 40101). The Act was subsequently amended on November 19, 2001 and Jan. 23, 2002. See Pub.L. No. 107-71, 115 Stat. 631 (2001); Pub.L. No. 107-134, 115 Stat. 2435 (2002).

Title IV of the Act, captioned "Victim Compensation," creates the September 11th Victim Compensation Fund of 2001. Section 403 of the Act states that the purpose of Title IV is "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." A Special Master appointed by the Attorney General administers the Fund, see Act § 404(a), and his tasks include promulgating rules and regulations for the Fund, generating application forms for claimants, and being the sole decisionmaker with regard to individual compensation awards, see Act §§ 404(a), 405(a)(2), 405(b). The claimant may be represented by counsel, present evidence, and exercise "any other due process rights determined appropriate by the Special Master." Act § 405(b)(4). The Special Master's compensation determinations are "final and not subject to judicial review," and must be rendered within 120 days of the filing of the claim. Act § 405(b)(3).

By electing to file a claim with the Fund, a claimant waives all rights to bring a civil action regarding the September 11 crashes, except to recover collateral source obligations or to sue knowing participants in the hijacking conspiracy. See Act § 405(c)(3)(B)(i). If victims pursue the litigation route, the amounts they potentially may recover are limited, by section 408 of the Act, to the insurance coverage of the airlines, aircraft manufacturers, airport sponsors, or persons with a property interest in the World Trade Center. The United States District Court for the Southern District of New York is given exclusive jurisdiction over such lawsuits. See Act § 408(b)(3).

In order to qualify as an "eligible individual" for compensation from the Fund, the claimant must be a victim or the personal representative of a victim who: (i) was present on one of the hijacked planes or at the World Trade Center (New York, New York), the Pentagon (Arlington, Virginia), or the site of the aircraft crash at Shanksville, Pennsylvania at the time, or in the immediate aftermath, of the terrorist-related aircraft crashes of September 11, 2001; and (ii) suffered physical harm or death as a result of such an air crash. See Act § 405(c). Section 405(b)(1) provides that the Special Master shall review submitted claims according to three factors: harm to the claimant, the facts of the claim, and the individual circumstances of the claimant. The Special Master shall determine: "(A) whether the claimant is an eligible individual under subsection (c); (B) with respect to a claimant determined to be an eligible individual—(i) the extent of the harm to the claimant, including any economic and noneconomic losses; and (ii) the amount of compensation to which the claimant is entitled based on the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant." Act § 405(b)(1). The Special Master is to make his award determinations without regard to "negligence or any other theory of liability." Act § 405(b)(2). His awards are not to include amounts for punitive damages and are to be offset by amounts of collateral source compensation the claimant has received or is entitled to receive as a result of the events of September 11. Act §§ 405(b)(5) and (6). The Act makes no mention of dollar limitations on the amount of an individual claimant's compensation award.

A few of the key terms are defined in section 402. "Economic loss" is "any pecuniary loss resulting from harm (including the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial costs, and loss of business or employment opportunities) to the extent recovery for such loss is allowed under applicable State law." Act § 402(7). Section 402(9) defines "noneconomic losses" as "losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature." 1

"Collateral source" is defined in section 402(6) as "all collateral sources, including 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." The "claimant" is the "individual filing a claim for compensation under section 405(a)(1)." Act § 402(5).

Not all of the key terms contained in the Act are defined. The Act provides that claimants are entitled to compensation awards based on "the facts of the claim, and the individual circumstances of the claimant," as well as on the "extent of harm," a term which includes "any...

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10 cases
  • In re September 11 Litigation
    • United States
    • U.S. District Court — Southern District of New York
    • September 9, 2003
    ...are unavailable. I have discussed, and upheld, certain portions of the Act and regulations related to the Fund in Colaio v. Feinberg, 262 F.Supp.2d 273 (S.D.N.Y.2003), appeal filed, June 6, Approximately seventy of the injured and representatives of those who died, and ten entities which su......
  • In re W.R. Grace & Co.
    • United States
    • U.S. District Court — District of Delaware
    • June 11, 2012
    ...granted to them by the Special Master, they could request a hearing to prove entitlement to a higher amount. Colaio v. Feinberg, 262 F. Supp. 2d 273, 282 (S.D.N.Y. 2002). If claimants remained dissatisfied after the hearing, they could then opt to pursue their claims in the normal tort liti......
  • In re W.R. Grace & Co.
    • United States
    • U.S. District Court — District of Delaware
    • January 30, 2012
    ...granted to them by the Special Master, they could request a hearing to prove entitlement to a higher amount. Colaio v. Feinberg, 262 F. Supp. 2d 273, 282 (S.D.N.Y. 2002). If claimants remained dissatisfied after the hearing, they could then opt to pursue their claims in the normal tort liti......
  • In re W.R. Grace & Co.
    • United States
    • U.S. District Court — District of Delaware
    • June 27, 2012
    ...amount granted to them by the Special Master, they could request a hearing to prove entitlement to a higher amount. Colaio v. Feinberg, 262 F.Supp.2d 273, 282 (S.D.N.Y.2003). If claimants remained dissatisfied after the hearing, they could then opt to pursue their claims in the normal tort ......
  • Request a trial to view additional results
3 books & journal articles
  • Chapter § 2.02 PASSENGER SAFETY AND ACCESSIBILITY
    • United States
    • Full Court Press Travel Law
    • Invalid date
    ...of recovery is for eligible claimants to apply to the Victim Compensation Fund (VCF) for compensation awards"); Colaio v. Feinberg, 262 F. Supp. 2d 273 (S.D.N.Y. 2003) (discussion of VCF mechanics).[220] See, e.g.: Second Circuit: In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (......
  • Prometheus Unbound: The Gulf Coast Claims Facility as a Means for Resolving Mass Tort Claims?A Fund Too Far
    • United States
    • Louisiana Law Review No. 71-3, April 2011
    • April 1, 2011
    ...cutive_summary.pdf; Cooper, supra note 25. 38. See Colaio v. Feinberg, 262 F. Supp. 2d 273, 278 (S.D.N.Y. 2003) (background events giving rise to September 11th litigation); Cooper, supra note 25. 39. Cooper, supra note 25; Jim Snyder, BP Spill Claims from 50 States Confront Administrator F......
  • Chapter § 2.01 INTRODUCTION
    • United States
    • Full Court Press Travel Law
    • Invalid date
    ...of recovery is for eligible claimants to apply to the Victim Compensation Fund (VCF) for compensation awards"); Colaio v. Feinberg, 262 F. Supp. 2d 273 (S.D.N.Y. 2003) (discussion of VCF mechanics).[64] See Estabrook, "Discount Flying Enters New Era," New York Times Travel Section, p. 4 (Se......

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