In May, Sheila Birnbaum ’65 took on what could be the toughest task of her career: serving as the Department of Justice’s special master for the reopened September 11th Victim Compensation Fund, which has provided $2.8 billion to compensate Ground Zero workers and New York City residents who suffered debilitating health problems, or to compensate the families of those who died as a result of the 9/11 attacks.
In announcing her selection, U.S. Attorney General Eric Holder cited Birnbaum’s “extensive experience, credibility, and unique insight.” She does have singular expertise, having been the courtappointed mediator for the 95 families who opted out of the original 9/11 fund and were headed to court against the airlines and security firms. Add her 40-plus years of expertly resolving complex torts and Birnbaum is distinctly well suited to this role.
Even so, Kenneth Feinberg ’70, the current administrator for the Gulf Coast Claims Facility who served as special master of the original 9/11 fund, says the job is even more daunting this time. “She really has her work cut out for her,” he says.
For starters, Birnbaum has to design the rules and procedures governing the distribution of money to claimants, who are likely to number in the thousands, with the payout process scheduled to take five years. Much harder will be the task of determining a link between exposure to toxic dust and debris from Ground Zero and the respiratory problems and other illnesses that those who lived or worked around the site have suffered. Finally, unlike with the original fund, which gave Feinberg an unlimited pool of money to draw from, he points out that this time Congress authorized a set amount, which must cover administrative expenses, too. With a cap on the money she’s able to distribute, Birnbaum will have to deal with the inevitable perception by claimants that “she’s taking from Peter to pay Paul,” he says. “She’s confronting a much more difficult set of problems than I faced.”
Birnbaum said when the announcement was made that she wants the process to be “fair, transparent, and easy to navigate.” To that end, just a little more than a month after being named to the role, she released proposed regulations that broadened the geographic boundaries within which New York City residents can make claims and closed the door on coverage for mental illnesses such as post-traumatic stress disorder. True to form, Birnbaum waited for a scientific review by the National Institute for Occupational Safety and Health before indicating in July that there was too little scientific evidence linking cancer to the Ground Zero dust and wreckage to allow for cancer coverage. The public has been given 45 days to comment on the proposal; Birnbaum will release final regulations in September; and the fund officially opens its doors on October 3, 2011.
Birnbaum reportedly wasn’t the first choice of the 9/11 workers or downtown residents, but she has since won critical praise. On the day her appointment as special master was announced, Birnbaum met with a vocal representative of Ground Zero workers, John Feal. The former construction supervisor had lobbied for another candidate but publicly supported Birnbaum after their face-to-face discussion. “It was a surprisingly pleasant meeting which got into the issues and I’m happy with the outcome,” Feal told the Wall Street Journal. “I think this is somebody I can work with.” One person who would not be surprised that Feal was won over is Alvin Hellerstein, the federal judge who appointed Birnbaum as the mediator who settled all but three of the last 95 wrongful death and personal injury suits from 9/11, for a total of $500 million. As he noted in his March 2009 final report: “She allowed each of the plaintiffs’ families to express their loss and the quality of the lives lost on September 11… . She gained plaintiffs’ confidence. Without her assistance, most of these cases, in my opinion, would not have settled.”
Recently, Hellerstein said Birnbaum’s empathy as well as her ability to make 9/11 family members comfortable was crucial to that outcome. “They had to know that they weren’t selling out their loved ones cheaply,” says Hellerstein, recalling how emotionally draining the process was.
Clearly, all of Birnbaum’s talents for bringing closure to huge, complicated—and often emotionally charged—litigation matters will come to bear. “If anyone can do this, Sheila can,” says Feinberg. “I can’t think of anyone more qualified to do the job.”