hearing at which he or she may assert additional individualized circumstances and argue that the presumed award methodology is inadequate to resolve his or her particular claim in a fair manner." Statement by Special Master, 67 Fed. Reg. 11,233, 11,234 (Mar. 13, 2002).
The plaintiffs have adduced no reliable evidence that the Special Master has imposed a cap. The awards distributed thus far for deceased victims have ranged from $250,000 to $6,025,931.99. There is no basis to believe that $6 million will be the maximum award if the facts and circumstances merit a higher award, and I note that, according to statistics available on the Fund website, a significant number of the awards have exceeded $3 million.
Plaintiffs complain that the Special Master has implemented the equivalent of a "de facto" cap by considering needs and resources as part of the "individual circumstances" of a claimant, refusing to publish presumptive award amounts in cases where decedents' income exceeded $231,000, and requiring claimants seeking compensation based on loss of considerably higher earnings, in some cases ten times that figure, to establish "extraordinary circumstances" to receive awards exceeding the presumptive award charts. Plaintiffs' arguments concede the absence of a fixed, pre-determined cap on recoveries. As the following discussion shows, the procedures required by the regulations and by the Special Master fairly implement the Act, are entitled to judicial respect, and do not infringe on plaintiffs' constitutional and statutory rights.
ii. Challenge to 28 C.F.R. § 104.41
Plaintiffs challenge 28 C.F.R. § 104.41, which provides that the "individual circumstances of the claimant may include the financial needs or financial resources of the claimant or the victim's dependents and beneficiaries." They argue that imposition of a "needs" test contradicts the Act, and can be used only to increase the amounts of awards, not to decrease them. The regulation, 28 C.F.R. § 104.41, is a reasonable interpretation of the Act and is entitled to deference under Chevron.
Section 405(b) of the Act establishes a three-part inquiry that the Special Master must follow in making award determinations. First, the Special Master must determine whether a claimant is an eligible individual. Act § 405(b)(1)(A). Secondly, the Special Master must determine "the extent of the harm to the claimant, including any economic and noneconomic losses." Act § 405(b)(1)(B)(i). Lastly, the Special Master determines "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)(B)(ii).
Under the first step of the Chevron analysis, I must examine whether Congress "has directly spoken to the precise question at issue" in the text of the statute. Chevron, 467 U.S. at 842-43. Although the statute neither explicitly prohibits nor authorizes the Special Master to consider need in making awards, it suggests such a criterion by the phrase "individual circumstances of the claimant," Act § 405(b)(1)(B)(ii). Because the statute is at least "silent or ambiguous with respect to the specific issue," I must then analyze "whether the agency's answer is based on a permissible construction of the statute." Id. Clearly, Congress contemplated that awards would not be equal to the sum of economic and noneconomic losses, for the Act requires the Special Master to award compensation based also on the facts of the claim and the individual circumstances of the claimant. The agency's definition of "individual circumstances" to "include the financial needs or financial resources of the claimant or the victim's dependents and beneficiaries," 28 C.F.R. § 104.41, is a plausible and reasonable construction of the phrase and does not conflict with any expressed congressional intent.
The plaintiffs assert that "individual circumstances" may be applied only to raise the amount of an award beyond the sum of a claimant's economic and noneconomic losses, not to lower it. This interpretation lacks support in the statute. Section 405(b)(1)(B)(ii) provides that awards of compensation should be "based on" a weighing of three factors, but does not provide how they should be weighed. Nothing in the Act suggests that "individual circumstances" may operate only to increase awards that might otherwise be given. The regulations provide a reasonable and permissible interpretation of the statutory criterion, and a court must give deference to such an interpretation.
Plaintiffs also argue that, for those with incomes above the 98th percentile, the Special Master has interpreted "individual circumstances" such that it overwhelms the other two factors — harm and the facts of the claim — and injects unpredictability in the awards process. They point, for example, to the Special Master's statement attached to the Interim Final Rule, where he cautioned that "a claimant should not assume that he or she will receive an award greater than the presumed award simply because the victim had an income that exceeded the income for the 98th percentile," because "the individual circumstances of the wealthiest and highest-income claimants will often indicate that multi-million dollar awards out of the public coffers are not necessary to provide them a strong economic foundation from which to rebuild their lives." 66 Fed. Reg. 66,274, 66,278 (Dec. 21, 2001). For those with incomes above the 98th percentile, the Special Master stated that they may "accept awards at the 98th percentile or seek calculation of an award based upon a more detailed record." 67 Fed. Reg. 11,233, 11,237 (Mar. 13, 2002).
The Special Master's interpretive statements fairly implement both the Act and the regulations, particularly the criterion of "financial needs and financial resources" of 28 C.F.R. § 104.41; they are reasonable, they reflect the Special Master's deep and extensive experience in mass tort litigation, and they are entitled to respect under Skidmore. The Special Master's statements fairly represent the intent of Congress, as expressed in the legislative history of the Act. Congress created the Fund, two weeks after September 11, for "ensuring the victims of September 11 get the assistance they need as they rebuild their lives." 147 Cong. Rec. H5884 (Sept. 21, 2001) (statement of Rep. Frost). Senator Leahy observed that "[t]his program is targeted to help the neediest victims and their families." 147 Cong. Rec. S9599 (Sept. 21, 2001). Senator McCain commented:
No amount of money can begin to compensate the victims
for their suffering. Nothing will make them and their
families "whole." It is not the intent of the federal
fund to do this. Nor is it the intent of the fund to
duplicate the arbitrary, wildly divergent awards that
sometimes come from our deeply flawed tort
system-awards from which up to one third or more of
the victims' award is often taken by attorneys.
The intent of the fund is to ensure that the victims
of this unprecedented, unforeseeable, and horrific
event, and their families do not suffer financial
hardship in addition to the terrible hardships they
already have been forced to endure.