'Letting Go'

For millions of Americans who watched the horrifying events of September 11 unfold on television and mourned as the death toll climbed into the thousands, the desire to help was overwhelming.

In the weeks that followed the 2001 terror attacks, millions of dollars in donations flowed into charities providing 9/11-related services, and pressure grew on Congress to provide additional compensation to those who were injured or lost loved ones.

Yet nearly two years after Congress responded by creating the September 11 Victim Compensation Fund, more than half the families eligible for compensation have yet to apply for it, despite a looming deadline of Dec. 22. Why would so many put off, or even pass up, the chance to ease their financial burdens by claiming hundreds of thousands--perhaps millions--of tax-free dollars. Kenneth Feinberg, the government-appointed lawyer who oversees the fund, finds it hard to comprehend. "Over half of the families still have not filed with the fund. They have not sued. They have done nothing," says Feinberg. "That's troublesome." Feinberg hopes to at least double the current participation in the fund by the December deadline. He knows that won't be easy. But he is setting up dozens town hall meetings over the coming months to try and convince holdouts to file. "I am going to take every last step in an effort to reach these families," he says.

Will that be enough? Many of the families say that grief is the main reason they have not taken action, especially as so many issues seem to remain unresolved--from the plans for a World Trade Center memorial to the identification of thousands of body parts that were carefully collected from the site. Many who had no body to bury put off a memorial service for months (or, in one case, nearly two years). "It is painful to file, especially for those of us who didn't get a body back," says Charles Wolf, whose wife, Katherine, was killed in the World Trade Center attack. "This is the letting go."

Fear of deportation has also kept at least 100 undocumented immigrants from filing with the fund. Only about 20 have filed, says Feinberg, despite a government regulation promising that they will not be deported. And Feinberg fears he will never convince the rest to file.

Others say they hesitated to join the fund because they knew that doing so meant relinquishing all rights to sue the airlines or building owners, and they have been waiting to see how the lawsuits already filed by dozens of families will be received by the courts. Some also have qualms with the fund formulas, which deduct life insurance and other collateral sources from the amount awarded to compensate economic losses. A small group of families sued the fund directly, arguing that the formulas for compensation are arbitrary and unfair. A judge dismissed the suit, but the decision is being appealed.

Feinberg, who has discretionary power over the compensation awards, has often awarded more than the formulas would indicate, which should alleviate some critics' concerns. The largest death claim awarded to date is $6.1 million for a high earner who did not have much insurance to deduct. And a man who survived the attacks with third-degree burns on more than 80 percent of his body was awarded the highest injury claim yet--just short of $7 million. The average amount for a death claim is $1.6 million.

There are also some who want to apply to the fund, but have been held up because they fall into a gray area. These include fiances and heterosexual or same-sex domestic partners. In addition to the regular requirements attached to the fund application, many of them have to provide documentation ranging from love letters to mortgage applications to affidavits from friends and relatives to prove that they were in a long-term committed relationship with the victim. And still, in some cases, compensation could depend on what state they reside in and how well they get along with their partner's family.

"During this time of incredible grief for me, the lack of clarity and regulations for the fund made the process even more difficult," says Keith Bradkowski, 47, a registered nurse in San Francisco, whose partner of 11 years, Jeff Collman, was a flight attendant on one of the hijacked planes. "We were committed to each other for life. But we weren't given the right to legally marry."

Lambda Legal, a national organization that provides legal and educational aid to lesbians and gays, knows of at least 22 same-sex couples who lost a partner in the 9/11 attacks. It is working closely with about a half dozen of them, including Bradkowski. "[The fund] doesn't provide clear rights for domestic partners of victims," says Jennifer Middleton, a senior staff attorney at Lambda. "To hinge something like the compensation for the loss of your life partner in such a horrible tragedy on where our clients live or their ability to come to an agreement with their in-laws is just profoundly unfair."

Fiances and domestic partners are in similar situations. Marmily Cabrera had been with Pedro Checo for more than a decade; they had two children together. In a dozen other states, she would have been considered his common-law wife. But not in their home state of New York. Cabrera's lawyer, Helen MacFarlane, has not yet completed Cabrera's application for the fund. "If she had a marriage certificate this all would have been resolved well over a year ago," says MacFarlane, who has petitioned a Queens court to name Cabrera a legal spouse. "As it is, she will undoubtedly get much less than a regular spouse would. But she is willing to settle for less."

Others aren't--not yet anyway. Aaron Broder is representing the families of some of the highest wage-earners killed in the World Trade Center--many of whom went to the fund first, but then had second thoughts when they learned how much compensation they'd get. In one case, he says, the 45-year-old victim was making $2.5 million annually. Feinberg estimated the total compensation would be between $3.2 million and $5.3 million. Broder calls such fund formulations "a horrendous travesty."

A Manhattan federal judge ruled otherwise in May, throwing out three lawsuits that claimed the September 11 Victim Compensation Fund improperly limited awards to the families of high-income victims of the World Trade Center terrorist attacks. Broder and another law firm, Salans, have appealed against his decision, but with the deadline to join the fund approaching, their clients might decide that some compensation is better than taking their chances in court.

That's a choice that at least 70 other families who have filed lawsuits against the airlines and other domestic defendants will have to make soon, too. New York lawyer Jim Kreindler is awaiting a judge's decision on about a dozen such claims. If he dismisses the cases, says Kreindler, "it will probably start a stampede to the fund."

Sally Regenhard is one of the few who say they'll likely stick with the courts.

"We hold them [the Port Authority of New York and New Jersey] responsible for a building that was a death trap," says Regenhard, who lost her firefighter son, Christian, in the World Trade Center. A cofounder of the Skyscraper Safety Campaign, she sees the lawsuit as part of a crusade to improve both building and air-travel safety standards and prevent such an attack from occurring again. "If we had signed off on fund from day one and gone quietly away we feel there wouldn't be an awareness of some of these issues," she says.

"The fact that this is the only vehicle in which we can get some answers and hold some people accountable compels a lot of people to go the litigation route," agrees Los Angeles lawyer Paul Hedlund, whose firm is filing the majority of such 9/11-related lawsuits: 58 individual claims against the airlines and other defendants for families whose loved ones were passengers on the hijacked flights. The claimants know they're in the minority and have sympathy for those who've opted to claim from the fund. But they say they want more than money from the government. "A lot of the people want answers," says Hedlund, "not just a blind payment."

Fund participants can still sue some parties. South Carolina lawyer Ron Motley, one of the attorneys who helped negotiate the multibillion-dollar settlement with the tobacco industry, is heading up a lawsuit targeting terrorists, terrorist states and alleged supporters and sponsors of terrorism--including the royal family of Saudi Arabia. More than 4,500 victims' families and others affected directly by the 9/11 attacks have now joined the suit, says Motley. That's one way families say they can get their compensation and get their day in court too.

Feinberg will no doubt point that out when he meets this fall with many of the 1,500 families and loved ones who have yet to decide whether to file for compensation. Until recently, Charles Wolf was among them. One of most vocal critics of Feinberg and the fund, Wolf even created a Web site, fixthefund.org. But after several months of discussions with Feinberg, Wolf is convinced that the fund is, if not fixed, at least fairer than he initially thought. He surprised both Feinberg at a recent meeting when he shook Feinberg's hand and said they'd both mellowed, like wine, with age. "[Feinberg] had a change of heart, he's more understanding now," says Wolf. "And I think he is using his discretionary power more to make adjustments [to the fund's formula]."

Wolf is still recommending that families get lawyers--but this time, not to sue the airlines, government or building owners but to maneuver their way through the mounds of paperwork required for the fund application. He is now preparing an application himself for the fund. Feinberg can only hope that the other holdouts will take their cue from Wolf.