By Dan Christensen, FloridaBulldog.org
In the 20 years since it began, the consolidated New York federal lawsuit brought by 9/11 victims has focused largely on allegations that the Kingdom of Saudi Arabia aided and abetted the 19 hijackers who killed nearly 3,000 people in the al Qaeda attacks of Sept. 11, 2001.
But in the last couple of years, as wrongful death claims have multiplied, the case’s immense docket has become an unwieldy monster – a thicket of 9,200 memorandums, briefs, replies, judgments, endorsements, transcripts, declarations, letters, notices, proposed orders, opinions and motions. That doesn’t count an accompanying river of multi-page exhibits.
Much that might shed new public light on the deadliest terrorist strike ever to occur on American soil remains hidden away behind a judicially consecrated curtain of secrecy deferentially erected at the government’s insistence to protect “national security.”
Today, the docket is often devoted to tracking various court actions involving two states that the court already has found liable to pay billions in 9/11 wrongful death claims: the Islamic Republic of Iran and the fundamentalist leaders of Afghanistan, the Taliban. Both were found to have provided material support to al Qaeda that aided the attacks, although much of the evidence against Iran was sealed years ago.
While significantly less culpable than Saudi Arabia is alleged to be, Iran and the Taliban nevertheless chose not to appear to answer U.S. lawsuits brought against them. So, New York U.S. District Judge George Daniels assessed billions of dollars in default judgments against them – with no end to such judgments in sight.
But state laws that define who may recover wrongful death damages were not followed. And many awards made by Daniels, who rejected applying state law, were given not to rightful heirs – widows and children who lost their breadwinners – but to non-heirs like parents and siblings of the dead who were not financially dependent on their deceased relative.
9/11 WIDOWS AND CHILDREN APPEAL
Now, with the case against Saudi Arabia still seemingly years away from trial, a handful of 9/11 widows and their children have filed an emergency writ asking the Second Circuit Court of Appeals to force Daniels to dismiss thousands of wrongful death claims against Iran and the Taliban that he previously approved for those non-heirs, many of whom didn’t even file their claims until after the statute of limitations expired in 2019.
Why? Because the court committed “clear error” by adding thousands of “immediate family members” who, beyond widows and children, are not heirs under state laws to the pool of those eligible for payouts from the limited-assets U.S. Victims of State Sponsored Terrorism Fund (USVSST), says the 30-page petition for a writ of mandamus filed by New York attorney John Schutty.
The result: “substantially” diluted recoveries by true heirs.
Another result: the special master of the USVSST announced last week that “there will be insufficient funds to authorize an additional round of payments by January 1, 2024… The USVSST Fund continues to accept applications to be considered for future payment rounds, the timing of which will depend on the availability of funds.”
“The district court should be ordered to apply state estate distribution law to the wrongful death claims,” Schutty’s petition says.
“Relief is sought through this extraordinary remedy because exceptional circumstances exist – no other adequate means exist to obtain Petitioners’ requested relief, and there has been a judicial usurpation of power that will continue to cause irreparable financial injury to the petitioners…through erroneous, non-appealable decisions by the district court,” the petition says.
STATUTES OF LIMITATION NOT ENFORCED
To make matters worse, the petition says, Daniels declined to enforce the statutes of limitations on claims against Iran and the Taliban made under the Foreign Sovereign Immunities Act (FSIA) and the Anti-Terrorism Assistance (ATA) Program – thereby allowing thousands of claims to be filed recently. Enforced limitations “would protect those authorized heirs who have fled timely claims.”
The petition accuses both Daniels and his magistrate, Sarah Netburn, whose recommendations he accepted, of rending decisions intended to “legislate from the bench by expanding the number of claimants who might recover wrongful death damages over and above what the common law (state) allows.”
“The previous entry of billions of dollars in default judgments against Iran, from which no appeal was possible…improperly allowed thousands upon thousands of non-heirs, under state law, and non-dependents, and those filing untimely claims…to obtain substantial awards,” the petition says.
“Thus, with no right of appellate review previously available in this MDL [Multi-District Litigation] – these ‘non-heirs’ were and will continue to be awarded millions of dollars in damages against Iran through 2039 (under FSIA and ATA) in direct violation of state estate administration laws, state policy and state interests,” the petition says.
The case presents no issues of fact about the events of 9/11, only “pure questions of law, the petition says.
‘IRREPARABLE HARM’
There are an estimated 2,800 9/11 widows. Much “irreparable harm’ to them and their children has already occurred because of hefty payouts to non-heirs with judgments against Iran, the petition says. That harm is now poised to continue because Judge Daniels recently adopted yet another of Magistrate Netburn’s recommendations that non-heirs be awarded default judgments against the Taliban, the petition says.
Under the ATA, wrongful death actions against the Taliban must have been filed no later than Jan. 1, 2019. The FSIA has a 10-year statute of limitations beginning on the date giving rise to the liability. “Many of the Iran and Taliban wrongful death actions here were, however, filed long after these deadlines,” the petition says.
“Under the district court’s order, no statute of limitations ever exists as to any defendant-in-default. This leads not only to absurd and unjust results, it invites serious consequences. The district court has opened the floodgates to tens of thousands of potential plaintiffs who may now file 9/11 claims in the decades to come…at the expense of the judiciary and the plaintiffs who have filed timely claims. Surely, that cannot be correct,” the petition says.
“A level of control over the docket by this Court is desperately needed. Here, the enormous and unmanageable size of the ever-expanding docket in this MDL [Multi-District Litigation], and the district court’s failure to enforce a statute of limitations defense in favor of those plaintiffs who have filed timely claims directly implicates the institutional interests of the judiciary.
“Granting this petition will materially advance the ultimate termination of this two-decade-long litigation and resolve uncertainty that surrounds thousands of wrongful death claims asserted against Iran and the Taliban,” the petition argues. The appeals court can accomplish that “by completely ending” the litigation as to thousands of plaintiffs.
The victims’ fund, established by Congress in 2015, is endowed by appropriations and monies obtained by federal law enforcement through violations of the Trading with the Enemy Act, the International Emergency Economic Powers Act or similar offenses. Its pro rata payments on eligible claims are made until they’ve been paid in full or the fund terminates in 2039.
A WIDOW’S STORY
According to a Justice Department press release in April, the fund to date has paid victims of international terrorism and their families (including non-9/11 victims) more than $6 billion. The number of eligible claimants has grown from over 2,000 in 2017 to over 15,500 today. Of those, 12,117 claimants are 9/11 victims and their family members (heirs and non-heirs), while another 3,652 claimants involve other acts of international state-sponsored terrorism.
One of the women Schutty represents in the appeal is Lisa O’Brien. She is the widow of Timothy O’Brien, a managing director at the financial services firm Cantor Fitzgerald who on 9/11 was at work at the firm’s offices on the 105th floor of the World Trade Center’s North Tower.
Lisa O’Brien and her three children are the New York state-designated heirs of Timothy O’Brien. In a declaration filed with the appellate court, she says she was until recently unaware that her “ex-in-laws (my deceased husband’s parents and siblings)” had filed separate wrongful death suits and that they’d been awarded “substantial” damages against Iran.
“I was dismayed to learn about how large the awards were to my ex-in-laws and even more dismayed to learn how these judgments affected/reduced the distribution of money from the U.S. Victims of State Sponsored Terrorism Fund to me and my children.’’
A listing of those awards against Iran shows that in 2017. Timothy O’Brien’s parents, Bernard and Marilyn O’Brien, were each awarded solatium damages of $8.5 million. Five brothers and sisters were awarded $4.25 million each in 2019, while the same claim by a sixth sibling is pending judgment. That brings the total to $42.5 million.
In contrast, Lisa O’Brien was awarded $12.5 million and her children $8.5 million apiece in solatium damages against Iran in 2020. Total: $38 million.
Much of that money has been paid, subject to caps by the fund which limit the legal heirs to a total of $35 million for all damages. The in-laws had a total cap of $20 million.
“What is undeniable is that the recoveries of parents and siblings necessarily decrease the fund’s assets and limit what is available to heirs,” her declaration says.
In 2022, the same multi-million-dollar awards were made to the heirs and non-heirs of Timothy O’Brien against the Taliban. None of those awards has been paid out yet.
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