‘Special master’ will consider partners on case-by-case basis
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| Sept. 11 victims’ compensation fund Special Master Kenneth Feinberg, shown here with Attorney General John Ashcroft, said he would consider individual appeals ‘on rare occasions’ if state law does not treat gay partners of victims fairly in distributing funds. (Photo by J. Scott Applewhite/AP) |
By LOU CHIBBARO JR.
The U.S. Justice Department declined requests by gay advocacy groups to add language recognizing the eligibility of domestic partners in its final regulations governing a multimillion-dollar federal compensation program for survivors of the victims of the Sept. 11 terrorist attacks.
Similar to a preliminary set of rules issued last December, the final DOJ regulations, which were released March 7, leave it up to state probate laws to decide which survivors are eligible for a federal compensation payment that could exceed $1 million or more. Except for Vermont and Hawaii, state probate laws don’t recognize domestic partners.
But in his most far-reaching statement to date, Kenneth Feinberg, the attorney named by President Bush to administer the compensation program, said he would exercise his authority to overrule state law if he believes an "injustice" would occur if a gay partner were denied compensation under the program.
"I do have a provision in the regulations that allows me, on rare occasions, to prevent an injustice by allocating the federal money regardless of what state law says," Feinberg told the Blade in a March 13 interview. "[I]f a situation cries out for fairness and justice, I will exercise that power," he said. "But I must say, I don’t see myself doing that except in the rarest of situations."
Feinberg’s latest comments appear to soften a position he took during an interview last weekend on the NBC News program "Meet the Press," in which he said he had no choice but to yield to state probate law when deciding whether a same-sex partner is eligible for compensation. Gay civil rights attorneys have said leaving the decision to state law could result in the denial of compensation for same-sex survivors of the Sept. 11 attacks unless the victims had a will naming their partners as beneficiaries of their estates.
Feinberg, whose title is listed as "special master" of the compensation program, invited interested parties to submit comments and suggestions on the regulations last December, when the DOJ issued a set of "interim" regulations. The final regulations include several changes relating to the amount of money survivors can receive but do not include changes in the provisions addressing the question of domestic partners.
Several gay civil rights and legal groups, including the New York-based Lambda Legal Defense & Education Fund, urged Feinberg and DOJ officials to add language to the regulations that would broaden the definition of survivors to include gay and lesbian couples.
The activist groups noted that under the proposed interim regulations, if a gay victim did not leave a will naming his or her partner as a beneficiary, it would be up to the victim’s relatives to decide whether the partners should receive any portion of the federal compensation money.
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| National Stonewall Democrats official Chad Johnson noted that most gay people who perished in the Sept. 11 attacks probably did not have a will or any other legal designation of a partner as the beneficiary to their estate. |
Although the rules -- and the law passed by Congress creating the program -- give the special master the final authority to decide who is eligible for compensation, the rules stress that questions of eligibility within families would be left to state law.
"The final rules cruelly place gay families in an unresolved state," said Chad Johnson, executive director of the National Stonewall Democrats, a gay political group. "While we are hopeful that Ken Feinberg will treat same-sex survivors equally, the Bush administration has missed a powerful opportunity to recognize gay families and to treat them with equal compensation and dignity."
Johnson said that, like most Americans, most of the gay victims in the Sept. 11 attacks most likely did not have wills.
Feinberg said he has met several times with officials with Lambda Legal Defense to discuss the regulations. He said he also met two weeks ago in New York with about 50 fiancés and domestic partners of victims of the Sept. 11 attacks, but he doesn't know if the partners were gay or straight.
Feinberg said adding a specific domestic partner clause in the regulations would have subjected him and the DOJ to a flurry of lawsuits from angry relatives, who would likely dispute an award to a domestic partner on grounds that it contradicts state probate law. Most state probate laws call for the estate of someone without a will to go to the surviving married spouse. If there is no spouse, the laws usually call for awarding the estate to the children, the parents, and the siblings, in that order -- depending on which of these parties is alive.
"I’m no Solomon," Feinberg said. "What can I do? First of all, I don’t know the merits of the case. What do [the gay advocates] want me to do, hold a hearing and have the gay partner and the parents come in and argue to me, ‘I’m entitled, no I’m entitled?’
"I’m distributing money under a federal program that only has a two-year life," he said. "I can’t get embroiled in these domestic family squabbles."
Feinberg, nevertheless, raised the possibility that he would overturn the wishes of the relatives of a gay victim under certain circumstances.
"[I]n an individual case, if a gay comes to me and says, ‘Look, let me show you something here, Mr. Feinberg. See these parents? They haven’t spoken to the victim in 15 years. They were alienated. They had no relationship at all. It would be an outrage for you to give them federal money. They had disowned the kid, the victim,’" Feinberg said. "Well, that may be a case where I give the money to the gay partner. And in an individual case, I’ll take a look at that.
"The last thing I want," he said, "is for the gay community to claim that Ken Feinberg discriminated against them. I am absolutely determined not to have that happen. And I will do what I can."
Feinberg interview
Washington Blade: You just mentioned that you’re concerned about a commentary piece by gay press columnist John Aravosis, which says the regulations you just issued discriminate against gay survivors of the Sept. 11 attacks.
Kenneth Feinberg: I just read it. I was so incensed by it -- not incensed, troubled by it, that I immediately responded to him, saying I have no intention of discriminating against gays. And I am doing everything in my power to make sure that does not occur in the context of this program.
Blade: Did someone alert you to the article?
Feinberg: Someone showed it to me yesterday. I immediately read it last night and responded to him today. I understand where he’s coming from. He’s not the first person that’s expressed this concern. I met with Lambda [Legal Defense and Education Fund officials] on a number of occasions. I will do everything in my power to avoid the type of discrimination that he’s concerned about. I am somewhat constrained by both the statute and the practicalities of the situation. But within those constraints I’m going to do what I can do.
Blade: At your last press conference, you said that you must, except in the rarest of situations, look to state law in deciding whether domestic partners are eligible to receive compensation. What did you mean by ‘the rarest of situations’? Does that open the door to a possible exception?
Feinberg: No. What I meant by that was that in only Vermont, I think, and/or only Hawaii, which, among the 50 states recognize gay partners as eligible under state law to receive an award -- that’s rare. But I will honor those states if that’s what they want to do. I think that’s what I meant. The other thing I might have meant -- I do have a provision in the regulations that allows me, on rare occasions, to prevent an injustice by allocating the federal money regardless of what state law says. Again, if a situation cries out for fairness and justice, I will exercise that power. But I must say, I don’t see myself doing that except in the rarest of situations.
Blade: One of the gay organizations put out a press release this week, the Stonewall Democrats, saying you may have met recently with the surviving gay partners of people who died in the World Trade Center attack.
Feinberg: I met two weeks ago with a group of about 50 fiancés and domestic partners living with the victim. Whether they were gay or not, I do not know. But I did meet with a group of fiancés and live-ins in New York. They didn’t express to me whether they were gay or not. I didn’t get into that. I just met with them to talk about their problem -- which is exactly the same. The heterosexual fiancé saying to me, ‘How are you going to prevent an injustice? My live-in boyfriend or girlfriend died without a will, no spouse, no children. I was going to marry him next week. What about me?’ What about you? What do you want? What can I do? You’re not a spouse. You’re not eligible. There was no will. You’re not eligible under the law of New York State to be in the chain of intestacy. It goes to the parents. Work it out with the parents. ‘Oh, the parents and I are at odds.’ Well, I’m no Solomon. What can I do? First of all, I don’t know the merits of the case. I’m distributing money under a federal program that only has a two-year life. I can’t get embroiled in these domestic family squabbles. By what ability do I have to work out those disagreements? Unless there is an absolutely outrageous case, I look to state law. Now, if the victim died with a will, and the will says I leave my estate to my fiancé, I leave my estate to my gay partner -- I will honor that will. I’m not looking to discriminate. It’s the opposite. I don’t want to discriminate. What do people want me to do?
Blade: Congressman Barney Frank says Congress wrote the law broadly to give discretion to the rule-making, so that you could device a fair system that takes into consideration people who live together in a loving, caring household similar to married spouses.
Feinberg: Here’s my answer to Barney. I’ve told Barney. Here’s my answer: One, the statute doesn’t say that. The statute seems to say to me, look to state law in terms of estates. Put that aside. Maybe Barney comes back and says, ‘No, I don’t read the statute that way.’ OK. Let’s say the statute gives me the power to award a portion of the award to a gay partner. How am I supposed to determine, in an individual case, the merits of the dispute? What does Barney want me to do? Hold a hearing and have the gay partner and the parents come in and argue to me, ‘I’m entitled, no I’m entitled, no I’m entitled?’ And if I do that and I award a portion to the gay partner, even though the law of the state says it all should go to the parent, now is the parent going to sue me enjoining the distribution to the gay partner? I can’t get into that. I just can’t get into that. If there’s a will, if the state recognizes the gay partner, like Vermont, I’ll honor it. If not, I think Barney and Mr. Aravosis, in his article -- I’m not saying they’re being unreasonable, I’m just saying they don’t get it. I’m only one person trying to administer a program. I can’t tie the program up in knots over this.
Blade: Did you get any pressure from the White House or the attorney general not to add domestic partners to the program?
Feinberg: None. None. There’s never been any pressure applied to me on this issue. None. It has nothing to do with gays or discrimination against gays. At no point was there ever the slightest mention to me, "We don’t want to recognize gays." Everybody agreed what we do want to do is streamline the program the best way we can to distribute the money the quickest way we can, and that is by relying, primarily, on what the state says should be the order of distribution in the absence of a will. And that’s exactly what we’ve done. Aravosis says you’re giving illegal aliens money and you’re not giving gays money. That’s just not true. Illegal aliens are eligible to take money under my program if the state allows it. And the state does. So we’ll pay the illegal aliens. If the state says an illegal alien can’t take the money, we won’t pay it. I’m not favoring aliens over gays. That’s what I tried to explain to him. I don’t know. Maybe I’m falling on deaf ears. And I must say, in the individual case, if a gay comes to me and says, ‘Look, let me show you something here, Mr. Feinberg. See these parents? They haven’t spoken to the victim in 15 years. They were alienated. They had no relationship at all. It would be an outrage for you to give them federal money. They had disowned the kid, the victim.’ Well, that may be a case where I give the money to the gay partner. That may be. And in an individual case, I’ll take a look at that.
Blade: So ultimately, you do have discretion?
Feinberg: I have some discretion. But I must say, I do not want to start willy-nilly making these decisions in every state -- gay here, no gay there, gay here, no gay there. I’m not going to get into that. I’ll get sued everywhere. It will tie the program up in knots. I can’t do that.
Blade: Wouldn’t they sue in an individual case rather than all the others?
Feinberg: Yes. But what if instead of an individual case, I do it in 40 cases? Now I’m going to get sued in 40 different places, where I award money to gays in 40 different states? Now, if a gay comes forward and shows me that the parent is just totally ridiculous, I’m not going to spend the federal money in a way that just is unjust. I just don’t to get into nitpicking over these issues. The other thing that gays ought to do -- they ought to come and see me and demonstrate why the economic loss suffered by the death of the victim is increased by their dependency, by their contribution to the gay relationship, so that I can award an amount more than I would otherwise award if they didn’t come forward. Then the gay can go to the state courts and say, ‘Look, here’s Mr. Feinberg’s award. He was going to award $1.3 million. But because of my contribution to the arrangement, the relationship, he’s awarding $1.8 million -- an extra $500,000.’ At least that is my own just enrichment. Maybe that argument may fly in state court. I don’t know. But that’s another way to do it.
Blade: Couldn’t you just give the gay partner the extra $500,000?
Feinberg: No. That’s the question. Maybe. But is that going to leave me open to a lot of litigation by, let’s say, the parents, who say, ‘You cut a check for $1.8 million. Under the law of Virginia, that $1.8 goes to the estate. Without a will, that’s us. That’s what the law says, that’s us.’ I know, I know, but that extra $500,000 … is only because of the gay. ‘Yeah -- but that’s not the way we look at it.’ Bop, bop, bop -- we’re going to court with the gay.
Blade: You said you received responses from the public that were pro and con concerning the domestic partner questions. Were the opponents particularly vitriolic?
Feinberg: I don’t recall how many I got pro and con. Most were pro. Vitriolic? You know, everything is relative. What’s vitriolic? With this fund, everybody is vitriolic. But they weren’t particularly embarrassing to the degree of vitriol.
Blade: Do you know how many domestic partners there are who are coming forward for compensation?
Feinberg: Very few. That’s a very good question. My understanding is, from Lambda, that the number of disputes, like we’re talking about, involving gay partners, as far as they know, is relatively modest -- 20, 30? I don’t recall. But I do recall it was a relatively modest number. So that’s another reason I’m hoping that on an individual basis, we may be able to do something here. Because the last thing I want, the last thing, is for the gay community to claim that Ken Feinberg discriminated against them. I am absolutely determined not to have that happen. And I will do what I can.
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