Class Action Alleges United States Failed to Properly Compensate 9/11 First Responders, Rescue Workers

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A proposed class action alleges the United States of America has failed to properly compensate several thousand first responders and rescue workers harmed by the 9/11 terrorist attacks.

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The 20-page lawsuit was filed in the U.S. Court of Federal Claims by a former Philadelphia firefighter who says he began suffering severe respiratory issues after performing rescue and recovery work at Ground Zero. According to the case, the plaintiff received significantly less from the September 11th Victim Compensation Fund (VCF) than he was originally entitled to due to changes in loss calculation methodology implemented over two years after the man had filed a claim with the VCF in October 2013.

“Plaintiff’s agreement with the Government did not include a monetary limitation on account of his non-cancer diagnoses,” the case summarizes, alleging the government’s imposition of a cap on non-economic damages for certain VCF claimants in 2015 after they’d already waived their right to sue civilly amounts to a “bait-and-switch.”

The complaint explains that the VCF, administered by the Department of Justice, is a federal fund that was created in 2001 immediately after the 9/11 terrorist attacks to distribute money to victims and prevent victims’ legal claims from inundating U.S. courts.

“In order to pursue VCF funds, applicants first had to waive any right to bring a civil action to recover damages suffered as a result of the 9/11 attacks,” the filing states. “In exchange, the Government agreed to consider a claimant’s VCF application and, if appropriate, issue an award based on the protocols in place when the applicant submitted their claim.”

According to the suit, the VCF established methodologies and formulas to calculate how losses would be awarded so as to allow potential applicants to make an “informed decision” before waiving their right to pursue civil actions for damages. Through the VCF, eligible individuals could receive compensation for economic losses, such as the loss of income and benefits, or for non-economic losses, which have to do with “pain, suffering, and other impacts on claimants’ wellbeing,” the filing adds.

The lawsuit explains that the VCF closed in December 2003 after issuing over $7 billion to more than 5,000 applicants but was re-opened for five additional years starting in 2011. This time, after Congress passed the James Zadroga 9/11 Health and Compensation Act of 2010, VCF eligibility was expanded to first responders, rescue workers and others who spent time in the areas of the terrorist attacks, the filing relays.

As part of the Zadroga Act, the 2001 VCF regulations were updated to reflect various changes implemented through the new legislation, the case says. For instance, the 2011 regulations stated that non-economic loss awards would be calculated by grouping medical conditions, the complaint relays.

“Individuals with cancer diagnoses would receive presumptively higher non-economic loss awards than persons without cancer,” the case reads. “However, there was no limitation on non-economic losses for non-cancer conditions.”

Then, on December 18, 2015, the James Zadroga 9/11 Victim Compensation Fund Reauthorization Act was signed into law to give applicants more time to submit VCF claims and allocate more funding for the program, the complaint states.

Importantly, the legislation also established two groups for VCF compensation purposes, the case says. Individuals in “Group A” would receive awards based on compensation calculations established by the 2011 regulations, while individuals in “Group B” would receive payments based on a new loss calculation methodology, the suit explains.

The case stresses that the plaintiff and thousands of other applicants were placed in Group B, even though they had already waived their right to pursue civil actions for damages as part of their agreement with the government before December 18, 2015.

The lawsuit says that the Zadroga Reauthorization Act made it so that individuals in Group B without a cancer diagnosis could only receive up to $90,000 for non-economic damages. Unlike Group A, members of Group B were no longer entitled to a minimum non-economic loss award of $10,000, the suit adds.

Moreover, Group B applicants “suffering from the most debilitating physical conditions” were now being prioritized, thereby reducing the compensation available to Group B claimants not suffering from the “most debilitating” conditions, the case argues.

Finally, the 2011 regulations stated that economic losses would be calculated based on annual incomes “up to but not beyond the 98th percentile of individual income in the United States,” which was approximately $368,000 in 2011, but economic loss calculations for Group B were based on a maximum of $200,000 in gross income, the filing relays.

According to the case, the changes to the Group B loss calculation methodology significantly reduced the amount of compensation that claimants with non-cancer conditions were issued:

The complaint claims that in January 2017, the plaintiff received a loss calculation letter stating that he had been awarded the maximum non-economic loss available under Group B for living non-cancer claimants, $90,000. The lawsuit points out that there was previously no cap on non-economic losses for non-cancer conditions.

“Plaintiff’s placement in Group B, and the subsequent limitation on his non-economic loss calculation, breached the terms of Plaintiff’s agreement with the Government,” the suit alleges. “Having waived his rights prior to December 18, 2015, Plaintiff was entitled to have his loss calculation performed pursuant to the 2011 VCF standards.”

The lawsuit looks to represent all 9/11 Victim Compensation Fund claimants who, in pursuing VCF compensation, waived their right to bring civil actions concerning damages related to the 9/11 attacks prior to December 18, 2015, had claims decided as part of “Group B,” and had claims for only non-cancer conditions, or had gross income at the time of their VCF claim that exceeded $200,000.

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