UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JOSEPH F. HOLLAND, et al.,
Plaintiffs,
v. Civil Action No. 24 - 2687 (LLA)
PAMELA JO BONDI, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs, who are both victims of the September 11 terrorist attacks and the personal
representatives of individuals killed as a result of the attacks, bring this action against Attorney
General Pamela Jo Bondi, Secretary of the Treasury Scott Bessent, Special Master of the U.S.
Victims of State Sponsored Terrorism Fund Mary Patrice Brown, the U.S. Department of Justice,
the U.S. Department of the Treasury, and the Office of Management and Budget (collectively,
“Defendants”). ECF No. 1. 1 Plaintiffs allege that Defendants violated the Administrative
Procedure Act (“APA”), 5 U.S.C. § 551 et seq., by erroneously administering the U.S. Victims of
State Sponsored Terrorism Fund. Defendants move to dismiss for lack of subject-matter
jurisdiction. ECF No. 18. For the reasons explained below, the court will grant Defendants’
motion and dismiss the complaint.
1 While Plaintiffs originally sued former Attorney General Merrick Garland and former Secretary of the Treasury Janet Yellen, Attorney General Bondi and Secretary Bessent are “automatically substituted” as their successors pursuant to Federal Rule of Civil Procedure 25(d). I. STATUTORY BACKGROUND
A. The September 11th Victim Compensation Fund
Following the September 11, 2001 terrorist attacks, Congress enacted several laws to
compensate victims and their loved ones. In 2001, it created the September 11th Victim
Compensation Fund (“VCF”), to be administered by a Special Master for the express purpose of
“provid[ing] compensation to any individual (or relatives of a deceased individual) who was
physically injured or killed as a result of the terrorist-related aircraft crashes of September 11,
2001.” Pub. L. No. 107-42, § 403, 115 Stat. 230, 237 (2001). Persons injured during the
September 11 attacks—or their personal representatives if they were deceased—could file a claim
with the Special Master. Id. § 405, 115 Stat. at 238-40. Upon determining a claimant to be
eligible, the Special Master would distribute VCF funds to the claimant. Id. § 406, 115 Stat. at 240.
The original VCF closed in June 2004. See September 11th Victim Compensation Fund,
Section 1: Eligibility Criteria and Deadlines (Aug. 5, 2025), https://perma.cc/CNW8-GQXY;
Arab v. Blinken, 600 F. Supp. 3d 59, 63 n.1 (D.D.C. 2022) (“The Court may take judicial notice
of information posted on official public websites of government agencies.”). In 2011, Congress
reopened the VCF for a period of five years, appropriated $2.775 billion to the Fund, and expanded
the pool of eligible claimants. See James Zadroga 9/11 Health and Compensation Act of 2010,
Pub. L. No. 111-347, 124 Stat. 3623, 3660-64 (2011). In 2015, Congress extended the VCF for
another five years, see James Zadroga 9/11 Victim Compensation Fund Reauthorization Act, Pub.
L. No. 114-113, 129 Stat. 2242, 3000 (2015), and in 2019, Congress extended the Fund through
fiscal year 2092, see Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez
2 Permanent Authorization of the September 11th Victim Compensation Fund Act, Pub. L.
No. 116-34, 133 Stat. 1040, 1040 (2019). 2
B. The U.S. Victims of State Sponsored Terrorism Fund
As a general matter, individuals can sue a foreign state sponsor of terrorism for injury or
death caused by certain acts of terror. See 28 U.S.C. § 1605A(a) (waiving foreign sovereign
immunity for state sponsors of terrorism if certain conditions are met). But because collecting
damages from state sponsors of terrorism is far more difficult than winning judgments against
them, Congress created the U.S. Victims of State Sponsored Terrorism Fund (“USVSSTF”) in
2015 to help plaintiffs secure compensation. See Justice for United States Victims of Sponsored
Terrorism Act, Pub. L. No. 114-113, § 404, 129 Stat. 2242, 3007 (2015) (codified at 34 U.S.C.
§ 20144). Congress appropriated $1.025 billion to start the Fund, 34 U.S.C. § 20144(e)(5), and
provided that “future funding [would] come from certain forfeiture proceeds, penalties, and fines
from federal civil and criminal matters involving state sponsors of terrorism,” O’Neill v. Garland,
No. 21-CV-1288, 2022 WL 17415057, at *1 (D.D.C. Dec. 5, 2022); see 34 U.S.C. § 20144(e)(2).
Like the VCF, the USVSSTF is administered by a Special Master. 34 U.S.C.
§ 20144(b)(1)(A). The Special Master is appointed by the Attorney General and tasked with
“specifying the procedures necessary for United States persons to apply and establish eligibility
for payment.” Id. § 20144(b)(2)(A). To be eligible for moneys from the Fund, the claimant must
(1) be “a United States person,” (2) hold a valid, federal-court judgment against a state sponsor of
terrorism, and (3) comply with the statute’s relevant deadlines, although the Special Master may
2 Because the distinction between the first and second iterations of the Fund are not legally significant in this case, the court will refer to the entire program as the “VCF.”
3 “grant a claimant a reasonable extension” of any application-related deadlines. Id. § 20144(c) &
(c)(3)(B). Claimants must also “provide the Special Master with information regarding
compensation from any source other than [the USVSSTF]” resulting from an act of terrorism, such
as the VCF. Id. § 20144(b)(2)(B).
If the Special Master determines that a claimant is eligible, she “shall order payment” from
the USVSSTF to the claimant or the claimant’s estate. Id. § 20144(d)(1). After accounting for
statutorily prescribed caps on recovery and the allocation of monies in the Fund, payments are
made “on a pro rata basis, based on the amounts outstanding and unpaid on eligible claims.” Id.
§ 20144(d)(3)(A)(i). With regard to timing, the payments are distributed in rounds, with the first
having taken place in December 2016 and the most recent in December 2024. 3 Importantly, “[a]ll
decisions made by the Special Master with regard to compensation from the [USVSSTF] [are] not
subject to . . . judicial review.” Id. § 20144(b)(3). Instead, “a claimant whose claim is denied in
whole or in part . . . may request a hearing before the Special Master.” Id. § 20144(b)(4)(A). The
3 To date, there have been five rounds of distributions as follows: • December 2016, roughly $1.1 billion to 2,332 claimants, see USVSSTF, Supplemental Report from the Special Master 4-5 (Aug. 2017), https://perma.cc/GU7U-GY26; • December 2018, roughly $1.1 billion to 3,172 claimants, see USVSSTF, Report Regarding Second Distribution 2 (Feb. 2019), https://perma.cc/8YJP-NCCV; • May 2020, roughly $1.1 billion to 7,479 claimants, see USVSSTF, Report Regarding Third Distribution 3, (June 2020), https://perma.cc/3SUG-8WDK; • December 2022, roughly $100 million to 2,130 claimants, see USVSSTF, Report Regarding Fourth Distribution 3 (Jan. 2023), https://perma.cc/YCR3-WJE3; • December 2024, roughly $1 billion to 4,542 claimants, see USVSSTF, Report Regarding Fifth Distribution 4 (Jan. 2025), https://perma.cc/8CWF-KYFC. In total, more than $7 billion has been awarded to nearly 19,000 claimants from the USVSSTF. See Report Regarding Fifth Distribution, at 15. The Fund is scheduled to make its final distribution by January 2, 2039. 34 U.S.C. § 20144(e)(6).
4 Special Master shall thereafter “issue a final written decision affirming or amending the original
decision,” which is “nonreviewable.” Id.
While any eligible individual with a federal-court judgment against a state sponsor of
terrorism may submit a claim to the USVSSTF, the statute creating the Fund contains specific
provisions for victims of certain terrorist attacks, including the 1983 Beirut barracks bombing, the
1996 Khobar Towers bombing, and the September 11 attacks. As it concerns the September 11
attacks, the statute divides claimants into three legally significant categories. First, a “9/11 victim”
is an eligible claimant who was injured or killed as a result of the September 11 attacks (or the
personal representative of such a claimant if the claimant is deceased). Id. § 20144(j)(14); Pub. L.
No. 107-42, § 405(c)(2), 115 Stat. at 239-40. Second, a “9/11 spouse” or “9/11 dependent” is an
eligible claimant who is the spouse or dependent of a 9/11 victim. 34 U.S.C. § 20144(j)(11), (13);
Pub. L. No. 107-42, § 405(c)(2), 115 Stat. at 239-40. Third, a “9/11 family member” is any
immediate family member of a 9/11 victim who is not a 9/11 spouse or 9/11 dependent. 34 U.S.C.
§ 20144(j)(12); Pub. L. No. 107-42, § 405(c)(2), 115 Stat. at 239-40. Regardless of status, no
claimant may receive more than $20 million, id. § 20144(d)(3)(A)(ii)(I), and 9/11 victims,
spouses, and dependents from the same family may not cumulatively receive more than
$35 million, id. § 20144(d)(3)(A)(ii)(III). Additionally, since 2019, related 9/11 family members
who are not 9/11 victims, spouses, or dependents may not cumulatively receive more than
$20 million. Id. § 20144(d)(3)(A)(ii)(IV).
At the USVSSTF’s inception, otherwise-eligible 9/11-related claimants who had already
received an award or award determination from the VCF could not receive additional
compensation from the USVSSTF. See Pub. L. No. 114-113, § 404(d)(3)(ii)(III), 129 Stat. at 3010
(stating that “the amount of compensation to which [a 9/11-related claimant] was determined to
5 be entitled under [the VCF] shall be considered controlling for the purposes of [the USVSSTF]”
(emphasis added)). In practice, this meant that many 9/11 victims, spouses, and dependents were
precluded from receiving USVSSTF funds because they had already received an award through
the VCF. See U.S. Gov’t Accountability Off., USVSSTF: Estimated Lump Sum Catch-Up
Payments 5 (Aug. 11, 2021), https://perma.cc/6X23-22C5 (“Comptroller General’s Report”).
Conversely, 9/11 family members (i.e., immediate family members other than spouses and
dependents of 9/11 victims) generally were able to draw from the USVSSTF because they were
less likely to have been eligible for payments from the VCF. Id.
In 2019, Congress removed the limitation on VCF awardees’ participation in the
USVSSTF, “opening the door for otherwise eligible claimants who had participated in the . . . VCF
to bring claims to the [USVSSTF].” O’Neill, 2022 WL 17415057, at *2; United States Victims of
State Sponsored Terrorism Fund Clarification Act (“Clarification Act”), Pub. L. No. 116-69,
§ 1701, 133 Stat. 1134, 1140 (2019). Congress gave these claimants until February 19, 2020 to
submit applications and directed the Special Master to issue awards by May 19, 2020 (with actual
payment to occur in the next distribution round). See Pub. L. No. 116-69, § 1701(b)(1)(B)(ii), 133
Stat. at 1140 (providing that individuals newly eligible to file claims with the USVSSTF “shall
have 90 days from the [November 21, 2019] date of enactment of [the Clarification] Act to submit
an application for payment”); id. at 1142(providing that the Special Master “shall authorize third-
round payments [between] 90 days[] and . . . 180 days[] after the date of enactment of
the . . . Clarification Act”). Congress also specified that, for all future distributions, funds had to
be evenly split between 9/11-related claimants and non-9/11-related claimants, i.e., victims of
other acts of terrorism. Id. § 1701(b)(1)(C), 133 Stat. at 1141.
6 In December 2020, Congress amended the statute again by authorizing lump sum
“catch-up” payments for 9/11-victims, spouses, and dependents. Consolidated Appropriations Act
of 2021, Pub. L. No. 116-260, § 1705(b), 134 Stat. 1182, 3293-94 (2020). These payments were
designed to ensure that the 9/11 victims, spouses, and dependents who had previously been
excluded from participating in the USVSSTF because of their participation in the VCF would
receive an equal share of payments as 9/11 family members who had not participated in the VCF.
Id. Congress directed the Comptroller General to determine the amount of these “catch-up”
payment for each 9/11 victim, spouse, and dependent who had submitted an application. Id.
§ 1705(b)(2), 134 Stat. at 3293-94. In December 2022, after the Comptroller General had
completed its report, Congress appropriated $3 billion for “catch-up” payments and directed the
Special Master to “authorize lump sum catch-up payments in amounts equal to the amounts
described in the [report].” Id.; see Comptroller General’s Report, at 1; Fairness for 9/11 Families
Act, Pub. L. No. 117-328, § 101(b)(3)(B), 136 Stat. 4459, 6106-09 (2022).
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The following factual allegations drawn from the complaint, ECF No. 1, are accepted as
true for the purpose of evaluating the motion before the court, Am. Nat’l Ins. Co. v. Fed. Deposit
Ins. Co., 642 F.3d 1137, 1139 (D.C. Cir. 2011). Plaintiffs filed this action in September 2024,
alleging that Defendants’ interpretation and administration of the USVSSTF were arbitrary and
capricious and contrary to law under the APA. ECF No. 1. Plaintiffs are divided into four groups
of 9/11-related claimants: the Net-Zero Plaintiffs (Count 1); the Supplemental-Value Plaintiffs
(Count 2); the Nunc-Pro-Tunc Plaintiffs (Count 3); and the Dual-Judgment Plaintiffs (Count 4).
Id. ¶¶ 1, 24. All four groups had won default judgments against the Islamic Republic of Iran for
its role in providing support to Al Qaeda in carrying out the September 11 attacks. Id. ¶¶ 2-3; see
7 Amended Complaint, Burnett v. Islamic Republic of Iran, No. 15-CV-9903 (S.D.N.Y. Feb. 8,
2016), ECF No. 53. And all members of each group subsequently submitted claims to the
USVSSTF. ECF No. 1 ¶¶ 25, 64, 76, 122.
A. Net-Zero Plaintiffs
The Net-Zero Plaintiffs are, or represent the decedents’ estates of, victims of the
September 11 attacks who also lost loved ones during the attacks. Id. ¶ 25. Each Net-Zero Plaintiff
received an award or award determination from the VCF for his own injuries before the passage
of the Clarification Act, and each holds a judgment against the Islamic Republic of Iran for the
loss of a loved one. Id. Because, before the Clarification Act, the Special Master had interpreted
the USVSSTF Act to preclude any claim by a claimant who had received funds from the VCF, the
Special Master deemed the Net-Zero Plaintiffs’ VCF awards for their own injuries to be
“controlling” as to both their claims as 9/11 victims and as 9/11 family members, and they received
“net zero” awards from the USVSSTF. Id. ¶¶ 25, 142. After the Clarification Act removed the
VCF-related bar, the Net-Zero Plaintiffs renewed their applications, but they “were erroneously
categorized as 9/11 family members” instead of as “9/11 victims.” Id. ¶ 25. 4
The Net-Zero Plaintiffs argue that they are “unequivocal[ly]” 9/11 victims under the
language of the Clarification Act. Id. ¶ 169. They allege that Defendants’ failure to classify them
as such “deprived the[m] of substantial compensation in the form of the lump sum catch-up
payments [valued at] 5.8573% of each claimant’s net eligible claim amount.” Id. ¶ 171. The
4 Some of the Net-Zero Plaintiffs did not file USVSSTF claims until after the Clarification Act because they knew that they would not receive an award under the original version of the USVSSTF. ECF No. 1 ¶ 26. These plaintiffs are “still considered Net-Zero Plaintiffs because their ability to collect payment from the [USVSSTF] did not begin until the [VCF] bar . . . was removed . . . by virtue of enactment of the Clarification Act.” Id.
8 Net-Zero Plaintiffs additionally contend that, as a result of their erroneous categorization as
9/11 family members, their aggregate awards were limited to $20 million instead of $35 million.
Id. ¶ 172. They maintain that, “[h]ad Defendants appropriately categorized the[m] as
‘9/11 victims[,]’ . . . [they] would each have received a lump sum catch up payment in April or
May 2023 without a pro-rata reduction of their claim amount based on 9/11 family member
aggregate claim caps.” Id. ¶ 173. The Net-Zero Plaintiffs seek an order compelling Defendants
to classify them as “9/11 victims” under 34 U.S.C. § 20144(j)(14). ECF No. 1 ¶¶ 236-40.
B. Supplemental-Value Plaintiffs
The Supplemental-Value Plaintiffs are personal representatives of the decedent estates of
individuals killed as a result of the September 11 attacks. ECF No. 1 ¶ 64. Each had received a
judgment against the Islamic Republic of Iran and filed a claim with the USVSSTF before the
Clarification Act’s February 19, 2020 deadline. Id. After the deadline passed, each
Supplemental-Value Plaintiff obtained a supplemental judgment against the Islamic Republic of
Iran for economic-loss damages on behalf of the decedent’s estate. Id. They provided the
supplemental judgments to the USVSSTF and obtained a revised Notice-of-Claim amount
incorporating the supplemental judgments before Congress appropriated funds for catch-up
payments in December 2022 based on the Comptroller General’s report. Id. While the
Supplemental-Value Plaintiffs received catch-up payments based on their original pain-and-
suffering damages figures, they did not receive catch-up payments for their supplemental
economic-loss damages. Id. ¶¶ 64-65.
The Special Master justified this decision by explaining that, when the Comptroller General
calculated the catch-up payments, he “used data from [the] third round [of distributions],” and
“judgments or additional compensatory damages amounts added after the [USVSSTF]’s third
9 round therefore could not have been included in [his] calculation.” Id. ¶ 186. The
Supplemental-Value Plaintiffs allege that “this rationale for refusing to recognize the current claim
values . . . was unjustified” and “deprived the[m] of substantial compensation in the form of the
lump sum catch-up payments on their current claim values at the Comptroller General’s
recommended 5.8573% of each claimant’s net eligible claim amount.” Id. ¶¶ 190, 192. They seek
an order compelling Defendants to credit their supplemental awards and recalculate their catch-up
payments. Id. ¶¶ 241-44.
C. Nunc-Pro-Tunc Plaintiffs
The Nunc-Pro-Tunc Plaintiffs, most of whom had received VCF awards, filed motions for
default judgment against the Islamic Republic of Iran before the Clarification Act’s February 19,
2020 deadline. ECF No. 1 ¶¶ 76, 196. Because they only had ninety days from the passage of the
Clarification Act until the February 19, 2020 deadline, they “worked diligently [in] seeking final
judgments” as quickly as possible and submitted claims to the USVSSTF before the deadline in
anticipation of securing those judgments. Id. ¶ 196. The Nunc-Pro-Tunc Plaintiffs also sought
extensions of time to submit their applications to the USVSSTF, but the Special Master denied
their requests. Id. ¶ 199. In the first week of March 2020, the U.S. District Court for the Southern
District of New York granted their motions for default judgment. Id. ¶ 198. Then, in May 2020,
the district court granted the Nunc-Pro-Tunc Plaintiffs’ request to backdate the judgments to an
effective date of February 19, 2020. Id. ¶ 200. Despite this, the Nunc-Pro-Tunc Plaintiffs were
denied participation in both the third-round distribution and lump sum catch-up payments. Id.
¶ 203.
The Nunc-Pro-Tunc Plaintiffs argue that the Special Master’s decision to “disregard[]” a
“determination by an Article III judge . . . [was] arbitrary and capricious . . . and contrary to the
10 law.” Id. ¶ 205. They claim that the Special Master is obligated “to accept applications from
claimants who submit applications before February 19, 2020 who meet the requirements [of the
USVSSTF Act]” and that their applications were compliant. Id. ¶¶ 206-07. Due to the Special
Master’s decision, the Nunc-Pro-Tunc Plaintiffs’ claims were “held over until the fourth round of
payments and [they were] deprived of payments in the third round that provided compensation of
0.7567585% of each eligible claimant’s net eligible claim value.” Id. ¶ 208.
Additionally, because the lump sum catch-up payments authorized in December 2020 were
based on submitted third-round applications, “the USVSST[F] . . . did not provide [the
Nunc-Pro-Tunc Plaintiffs’] claim information to the Comptroller General to allow them to be
considered for the lump sum catch-up payments.” Id. ¶ 211. “The majority of the Nunc Pro Tunc
Plaintiffs would have [otherwise] qualified for lump sum catch-up payments.” Id. ¶ 210. As a
result, they also lost out on additional catch-up payments “of 6.6140585% of their net eligible
claim amounts.” Id. ¶ 213. The Nunc-Pro-Tunc Plaintiffs seek an order requiring Defendants to
recognize their applications as timely for purposes of third-round distributions and catch-up
payments. Id. ¶¶ 245-49.
D. Dual-Judgment Plaintiffs
Each Dual-Judgment Plaintiff is a surviving family member of two loved ones killed in the
September 11 attacks. ECF No. 1 ¶ 122. Before the passage of the Clarification Act, the
Dual-Judgment Plaintiffs each won a default judgment and submitted a USVSSTF claim for one
deceased family member. Id. After the passage of the Clarification Act, the Dual-Judgment
Plaintiffs each obtained a subsequent default judgment and submitted it to the USVSSTF before
the February 19, 2020 deadline, but they failed to amend their original applications to reflect the
additional judgment value until June 2020. Id. ¶¶ 122, 228. While the Dual-Judgment Plaintiffs
11 received awards based on their original damages figures, they did not receive third-round or catch-
up payments for their subsequent judgments. Id.
The Special Master justified this decision on the ground that “[t]he compensatory damages
awarded to the claimants in these new judgments [we]re based on different victim(s) and
relationship(s) than the judgments originally provided with the claimants’ applications.” Id. ¶ 225
(first alteration in original). The Dual-Judgment Plaintiffs argue that the Special Master should
have given them an opportunity to amend and correct their original applications, rather than
exclude them from the third round of distributions. Id. ¶¶ 226-27, 229. As with the other groups
of Plaintiffs, the Dual-Judgment Plaintiffs also assert that the erroneous handling of their second-
judgment values deprived them of catch-up payments to which they were entitled. Id. ¶¶ 231-32.
They seek an order compelling Defendants to recognize their second judgments as timely for
purposes of third-round distributions and catch-up payments. Id. ¶¶ 250-53. Each of the three
Dual-Judgment Plaintiffs also seeks re-classification: Plaintiff Victor Colaio as a “9/11 victim”;
Plaintiff Lisa Ventura as a “9/11 spouse”; and Plaintiff Elaine Abate as a “9/11 dependent.” Id.
¶ 253.
* * *
In addition to their group-specific requests, see supra Parts II.A, II.B, II.C, and II.D, all
Plaintiffs seek a declaration that Defendants’ actions violated the USVSSTF Act. See id. ¶¶ 240,
244, 249, 253.
In January 2025, Defendants filed a motion to dismiss Plaintiffs’ complaint for lack of
subject-matter jurisdiction. ECF No. 18. The motion is now ripe for disposition. ECF Nos. 18,
23, 26.
12 III. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction,” and it is generally presumed that “a cause
lies outside [of] this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Under Federal Rule of Civil Procedure 12(b)(1), the court must dismiss an action
unless the plaintiff can establish, by a preponderance of the evidence, that the court possesses
subject-matter jurisdiction. Green v. Stuyvesant, 505 F. Supp. 2d 176, 177-78 (D.D.C. 2007). In
reviewing such a motion, the court “is not limited to the allegations set forth in the complaint” and
“‘may consider materials outside the pleadings.’” Morrow v. United States, 723 F. Supp. 2d 71,
76 (D.D.C. 2010) (quoting Jerome Stevens Pharms. Inc. v. Food & Drug Admin., 402 F.3d
1249, 1253 (D.C. Cir. 2005)). Additionally, when reviewing a motion to dismiss pursuant to
Rule 12(b)(1), the court is required to “assume the truth of all material factual allegations in the
complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that
can be derived from the facts alleged.’” Am. Nat’l Ins. Co., 642 F.3d at 1139 (quoting Thomas v.
Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
IV. DISCUSSION
No matter how persuasive or compelling Plaintiffs’ merits arguments may be, the court
cannot reach them if it lacks jurisdiction. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Co.,
549 U.S. 422, 431 (2007) (“‘Without jurisdiction[,] the court cannot proceed at all in any cause’;
it may not assume jurisdiction for the purpose of deciding the merits of the case.” (quoting Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998))). Defendants argue that the USVSSTF
Act deprives the court of subject-matter jurisdiction over Plaintiffs’ claims. Plaintiffs, meanwhile,
characterize their suit as challenging a distinct threshold issue that lies outside the scope of the
13 statute’s jurisdiction-stripping provision. Ultimately, the court concludes that Defendants have the
better of the argument. 5
Because “Congress rarely intends to prevent courts from enforcing its directives to federal
agencies,” there is generally a “‘strong presumption’ favoring judicial review of administrative
action.” Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n, 575 U.S. 480, 486 (2015)
(quoting Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986)). This presumption
applies even when a court is “determining the scope of statutory provisions specifically designed
to limit judicial review.” Make the Road N.Y. v. Wolf, 962 F.3d 612, 624 (D.C. Cir. 2020). A
federal agency thus “bears a ‘heavy burden’ in attempting to show that Congress ‘prohibit[ed] all
judicial review’ of the agency’s” actions. Mach Mining, LLC, 575 U.S. at 486 (alteration in
original) (quoting Dunlop v. Bachowski, 421 U.S. 560, 567 (1975)).
While this presumption is a formidable one, it is “rebuttable by a clear statement of
congressional intent to preclude review.” Knapp Med. Ctr. v. Hargan, 875 F.3d 1125, 1128
(D.C. Cir. 2017). Such intent can be divined “not only from [the statute’s] express language, but
also from the structure of the statutory scheme, its objectives, its legislative history, and the nature
of the administrative action involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984).
5 Defendants also argue that the Department of the Treasury, Secretary Bessent, and the Office of Management and Budget should be dismissed from the case because they did not play any role in the complained-of actions giving rise to this suit. ECF No. 18-1, at 14-16. Plaintiffs agree. See ECF No. 23, at 32-33 (agreeing with Defendants that “the crucial decision makers in the decisions at issue in this case are Mary Patrice Brown, the current Special Master of the [US]VSST[F]; Attorney General Pamela Bondi . . . ; and the United States Department of Justice” and stating that “the Court may simply dismiss Plaintiffs’ claims as against th[e]se Defendants by order based on this filing”). This provides an independent basis for the court to dismiss the Department of the Treasury, Secretary Bessent, and the Office of Management and Budget.
14 When Congress precludes judicial review, a court lacks subject-matter jurisdiction to entertain the
claim. See Mercy Hosp., Inc. v. Azar, 891 F.3d 1062, 1071 (D.C. Cir. 2018).
A. Plain Language
The parties agree that the court’s jurisdiction in this case depends on 34 U.S.C.
§ 20144(b)(3), which provides that “[a]ll decisions made by the Special Master with regard to
compensation from the [USVSSTF] shall be . . . final and . . . not subject to administrative or
judicial review.” 6 Their dispute centers on whether the phrase “decisions . . . with regard to
compensation” encompasses the decisions Plaintiffs challenge here. While Plaintiffs encourage
the court to read Section 20144(b)(3) narrowly, the provision’s plain text evinces a clear legislative
intent to preclude judicial review of the claims at issue in this case.
Not long ago, another judge of this court (Boasberg, C.J.) interpreted the same jurisdiction-
stripping provision of the USVSSTF Act and reached the same conclusion. In O’Neill v. Garland,
No. 21-CV-1288, 2022 WL 17415057 (D.D.C. Dec. 5, 2022), a class of 9/11-related claimants
who became eligible to draw from the USVSSTF due to the Clarification Act sued under the APA
“to challenge the method for calculating payments devised by the Special Master.” Id. at *1.
Specifically, they alleged “that the Special Master [had] violated the [USVSSTF] Act by
establishing a payment methodology . . . that improperly result[ed] in underpayments to
9/11-related claimants newly eligible to draw from the Fund.” Id. at *2. The plaintiffs asked the
court to “mandate a different formula for future distributions, which would include reimbursing
them for the prior errors.” Id. In response, the government argued that Section 20144(b)(3)
6 As noted supra, the statute provides a narrow avenue for requesting a hearing for the Special Master to reconsider her decision, 34 U.S.C. § 20144(b)(4)(A)-(B), but that is not relevant to the court’s analysis of its jurisdiction.
15 “expressly precluded judicial review of ‘all decisions made by the Special Master with regard to
compensation from the Fund,’” including the methodology challenged by the plaintiffs. O’Neill,
2022 WL 17415057, at *2 (quoted source omitted).
The O’Neill court concluded that “its inquiry beg[a]n[] and end[ed] with the question of its
jurisdiction.” Id. at *3. “[U]nder the plain text of the statute, the explanation of payments [was]
a ‘decision’ that the Special Master made ‘with regard to compensation.’” Id. at *4. The statute’s
structure and broad conferral of administrative authority upon the Special Master “also support[ed]
the view that her payment-calculation decisions f[e]ll within the scope of the statute’s judicial-
review bar.” Id. (observing that the Special Master was responsible for evaluating “eligibility
criteria, allocation methodology, and timelines specifically articulated by the statute,” in addition
to “broader non-claim-specific decisions, such as considering available funds, establishing
payment procedures, and detailing a payment methodology for each distribution”). The court
further explained that “[t]he placement of the [jurisdiction-stripping] provision”—titled
“‘Decisions of the Special Master’”—“in the larger subsection entitled ‘Administration of the
[USVSSTF]” gave the provision its broadest possible reach. Id. at *5 (quoting 34 U.S.C.
§ 20144(b)). All of this led the court to conclude that the Special Master’s “payment and eligibility
determinations—as well as all decisions regarding the methodology for calculating
payments . . . —are withheld from judicial review.” Id.
For the same reasons, this court concludes that it lacks subject-matter jurisdiction over
Plaintiffs’ claims. The Special Master’s various decisions regarding a claimant’s classification,
judgment values, and timeliness are plainly “decisions . . . with regard to compensation from the
Fund.” 34 U.S.C. § 20144(b)(3). Start with the Net-Zero Plaintiffs’ chief complaint: that the
Special Master incorrectly categorized them as 9/11 family members rather than as 9/11 victims.
16 ECF No. 1 ¶¶ 25, 169. This categorization plays an integral role in the Special Master’s
compensation decisions because, as Plaintiffs admit, it “caps . . . [a claimant’s] net eligible claim
amount.” Id. ¶ 172. It also affects the calculation of any catch-up payments. See id. ¶ 173 (“Had
Defendants appropriately categorized the Net-Zero Plaintiffs, . . . the Net-Zero Plaintiffs would
each have received a lump sum catch up payment . . . without a pro-rata reduction of their claim
amount[.]”). Requiring the Special Master to revisit those classifications would force her to
reevaluate the compensation amounts awarded to all claimants, thus placing the decision squarely
within the ambit of the jurisdiction-stripping provision.
With respect to the remaining Plaintiffs, the Special Master is also tasked with determining
whether a claimant has met the statute’s deadlines. See 34 U.S.C. § 20144(c)(1)(C) & (c)(3).
These deadlines—which affect the claims of the Supplemental-Value, Nunc-Pro-Tunc, and
Dual-Judgment Plaintiffs—dictate eligibility, which in turn dictates compensation. See id.
§ 20144(d)(1) (explaining that the Special Master “shall order payment from the Fund for each
eligible claim”); id. § 20144(c)(1) (explaining that “a claim is eligible if the Special Master
determines that” it complies with the statute’s deadlines). A court therefore cannot second-guess
the Special Master’s decision regarding a deadline without undermining her “decision[] . . . with
regard to compensation from the Fund.” Id. § 20144(b)(3). And, as Plaintiffs’ complaint makes
clear, these two are intrinsically linked. See ECF No. 1 ¶ 192 (“Defendants deprived the
Supplemental-Value Plaintiffs of substantial compensation in the form of lump sum catch-up
payments[.]”); id. ¶ 208 (“By virtue of the USVSST[F]’s arbitrary and capricious acts[,] the Nunc
Pro Tunc Plaintiffs . . . [were] deprived of payments in the third round that provided compensation
of 0.7567585% of each eligible claimant’s net eligible value.”).
17 Plaintiffs have little to say in response to O’Neill, which they refer to only once in their
opposition brief. See ECF No. 23, at 10. Rather than addressing O’Neill, Plaintiffs contend that
the Section 20144(b)(3)(B)’s jurisdiction-stripping provision plausibly “differentiate[s] between
threshold claimant classification determinations and subsequent decisions as to the amounts of
‘compensation’ that claimants are due.” Id. at 9. But this “narrow reading of the word ‘decisions’”
pays short shrift to “the larger statutory structure and scope of the Special Master’s authorities with
regard to ordering compensation.” O’Neill, 2022 WL 17415057, at *5. Carving out “every
decision of the Special Master regarding compensation . . . that does not directly result in an
individual adjudication of a particular claim” would “significantly undermine[]” Congress’s
judicial-review bar. Id. (emphasis added). And it oversimplifies the meticulous administration of
the USVSSTF’s complex payment scheme. Deciding whether an individual fits into a particular
class of claimants or has properly and timely submitted an application is part of the compensation
process. Id. at *4 (“[The Special Master] determines, for example, whether an individual is
statutorily eligible, which of his claims qualify for recovery, whether he has provided adequate
supporting documentation, and how much he is qualified to receive in each distribution round.”).
As such, those determinations are not judicially reviewable.
In arguing otherwise, Plaintiffs rely on Braun v. United States, 531 F. Supp. 3d 130
(D.D.C. 2021). In their view, Braun stands for the proposition that Section 20144(b)(3)(A)’s “use
of ‘each claimant’ may serve to bar review of individual determinations while still allowing courts
to consider programmatic challenges to the Fund’s operation.” ECF No. 23, at 10 (quoting Braun,
531 F. Supp. 3d at 136). The trouble for Plaintiffs is that the O’Neill court considered—and
rejected—this argument. The O’Neill court recognized that the Braun court had “reserved
judgment on the question of whether a statutory challenge about [the] retroactivity of the
18 Clarification Act as a whole would be reviewable.” O’Neill, 2022 WL 17415057, at *5. But Chief
Judge Boasberg, who decided both cases, concluded that the O’Neill plaintiffs “read too much into
Braun, which itself expressed skepticism that ‘objections to distributions’ would be reviewable
and never decided the full scope of ‘decisions’ that were withheld from judicial review.” Id. at *5
(quoting Braun, 531 F. Supp. 3d at 136). Instead, he firmly held that the plaintiffs could not “evade
the bar on judicial review merely by bringing their claims together and characterizing their
challenge as programmatic.” Id. at *6. Thus, any reviewability questions left open in Braun were
definitively closed in O’Neill. See id. at *3, *5.
Here, individual and so-called “programmatic” challenges are two sides of the same coin.
Neither challenge is reviewable. The statute’s immunization of “[a]ll” decisions regarding
compensation does not differentiate between individual claims and program-wide ones. 34 U.S.C.
§ 20144(b)(3) (emphasis added). And because the USVSSTF is a single pool of funds, the Special
Master’s decisions with respect to one claimant or group of claimants necessarily affects thousands
of others. See id. § 20144(d)(3)(A)(i) (requiring the Special Master to make payments on a “[p]ro
rata basis” among all eligible claimants). In such a scheme, attempting to slice off
“threshold . . . determinations” from the interwoven compensation process does not work. See
ECF No. 23, at 9.
Plaintiffs next rely on American Clinical Laboratory Ass’n v. Azar, 931 F.3d 1195
(D.C. Cir. 2019), but that also fails. There, the D.C. Circuit considered the reach of a jurisdiction-
stripping provision in the Protecting Access to Medicare Act, Pub. L. No. 113-93, 128 Stat. 1040
(2014) (codified at 42 U.S.C. § 1395m-1(h)(1)). A primary goal of the Act was “to set Medicare
reimbursement rates for laboratory tests at approximately the price private insurers pa[id] for the
same tests.” Am. Clinical, 931 F.3d at 1199. To achieve that objective, the Act authorized the
19 Secretary of Health and Human Services to collect data on laboratory-test prices and subsequently
determine the appropriate Medicare “payment amounts” for those tests. See 42 U.S.C.
§ 1395m-1(a) & (b). After the Secretary proposed a series of rules to guide data collection, a trade
association of laboratories sued to block them from taking effect. Am. Clinical, 931 F.3d at 1202.
In response, the Secretary argued that the court lacked subject-matter jurisdiction to entertain the
suit under the Act’s jurisdiction-stripping provision, which prohibits any “administrative or
judicial review under section 1395ff of [the Act], section 1395oo of [the Act], or otherwise, of the
establishment of payment amounts under this section.” 42 U.S.C. § 1395m-1(h)(1).
The D.C. Circuit sided with the trade association and drew a distinction between “the
amounts of money paid in the ultimate reimbursement decisions”—which were not reviewable—
and the “data collection practices that precede and inform the setting of those amounts”—which
were. Am. Clinical, 931 F.3d at 1205. After analyzing the statute’s plain text and comparing it to
other preclusion schemes, the Court concluded that the two types of decisions were not
“inextricably intertwined” and could be treated separately. Id. at 1206 (quoting Fla. Health Scis.
Ctr., Inc. v. Sec’y of Health & Hum. Servs., 830 F.3d 515, 521 (D.C. Cir. 2016)).
At first blush, American Clinical appears to support Plaintiffs’ position. But the
comparison collapses upon closer inspection for three primary reasons. First, the specific language
of the jurisdiction-stripping provision in American Clinical constrains its reach.
Section 1395m-1(h)(1) expressly bars review “under section 1395ff of this title, section 1395oo of
this title, or otherwise.” Sections 1395ff and 1395oo both “cover administrative appeals by
patients or providers who wish to contest a coverage determination or reimbursement amount.”
Am. Clinical, 931 F.3d at 1205. In other words, the provision’s deliberate cross-references
20 “suggest[] that Congress intended to preclude review of the amounts of money paid in the ultimate
reimbursement decisions,” rather than any other component of the statutory scheme. Id.
In contrast, the jurisdiction-stripping provision in the USVSSTF Act contains no narrowing
language or cross-references. Instead, it speaks both plainly and broadly: “[a]ll decisions made by
the Special Master with regard to compensation” are “not subject to administrative or judicial
review.” 34 U.S.C. § 20144(b)(3) (emphases added). That includes decisions like “considering
available funds, establishing payment procedures, and detailing a payment methodology for each
distribution,” all of which fit “[w]ithin [the Special Master’s] obligation to ‘order payment from
the Fund for each eligible claim.’” O’Neill, 2022 WL 17415057, at *4 (quoting 34 U.S.C.
§ 20144(d)(1)). No part of Section 20144(b)(3) restricts its scope to dollar amounts or individual
steps within the compensation-calculating process. Furthermore, Congress placed the provision
under a subsection titled “Administration of the Fund,” thus giving it a broader, not narrower,
scope. 34 U.S.C. § 20144(b)(1). Congress did not, for example, situate the provision under
subsection (c) (titled “Eligible claims”) or subsection (d) (titled “Payments”). If the provision
were only meant to immunize narrow, discrete acts like Plaintiffs suggest, see ECF No. 23, at 9,
its placement in an expansive subsection makes little sense.
Second, the entirety of Section 1395m-1 indicates that the act of collecting data is not a
component of “establish[ing] . . . payment amounts,” 42 U.S.C. § 1395m-1(h)(1), but rather “a
separate statutory duty preceding the establishment of Medicare payment rates,” Am. Clinical, 931
F.3d at 1205. The D.C. Circuit contrasted this bifurcated scheme with a scenario in which “the
challenged action [is] encompassed within the terms of unreviewable action.” Id. at 1206. As an
example of the latter, the Court pointed to Texas Alliance for Home Care Services v. Sebelius, 681
F.3d 402 (D.C. Cir. 2012), where it had held that the statutory bar on reviewing “‘the awarding of
21 contracts,’” likewise precluded judicial review of any financial standards that were a
“‘[c]ondition[] for awarding contract[s].’” Am. Clinical, 931 F.3d at 1205-06 (alterations in
original) (first quoting Tex. All. for Home Care Servs., 681 F.3d at 409-10; then quoting 42 U.S.C.
§ 1395w-3(b)).
This case is more like Texas Alliance than American Clinical. Determining which category
a claimant belongs to and assessing whether a claim is timely are both necessary “conditions” to
awarding compensation from the USVSSTF. See 34 U.S.C. § 20144(d)(1) (explaining that the
Special Master “shall order payment from the Fund for each eligible claim”); id. § 20144(c)(1)
(explaining that “a claim is eligible if the Special Master determines that” it complies with the
statute’s deadlines). If the Special Master concludes that a claimant does not fall within a class of
individuals entitled to receive certain payments or that he missed the application deadline, that is
a decision that directly affects compensation.
Third, the D.C. Circuit in American Clinical stressed Section 1395m-1’s requirement “that
the parameters for . . . data collection be established through notice and comment rulemaking.”
931 F.3d at 1206. Because the notice-and-comment process exists “to ensure [that] the parties
develop a record for judicial review,” the specific requirement for data-collection procedures
strongly suggests that such procedures are meant to be judicially reviewable. Id. (emphasis added);
see Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250,
1259 (D.C. Cir. 2005) (“Notice requirements are designed . . . to give affected parties an
opportunity to develop evidence in the record to support their objections to the rule and thereby
enhance the quality of judicial review.”). The Court reiterated this point again and again, citing
three other cases where the absence of notice-and-comment rulemaking indicated Congressional
intent to preclude judicial review. Am. Clinical, 931 F.3d at 1206-07 (citing Tex. All. for Home
22 Care Servs., 681 F.3d at 402, Mercy Hosp., Inc., 891 F.3d at 1062, and Fla. Health Scis. Ctr., Inc.,
830 F.3d at 515). In contrast to American Clinical, the USVSSTF Act lacks any notice-and-
comment procedures with respect to claimant classification, timeliness, or the basic tasks of
administering the Fund. See generally 34 U.S.C. § 20144. 7
As the O’Neill court convincingly explains, and as Plaintiffs fail to meaningfully counter,
the plain text of the USVSSTF Act’s jurisdiction-stripping provision applies to all “payment and
eligibility determinations” by the Special Master. 2022 WL 17415057, at *5. Because classifying
claimants into separate groups and determining application timeliness are “decisions . . . with
regard to compensation,” 34 U.S.C. § 20144(b)(3), the court lacks jurisdiction to review them.
B. Plaintiffs’ Requested Relief
While the plain language of the USVSSTF Act settles the jurisdictional question, the nature
of Plaintiffs’ prayers for relief provides additional evidence that their claims are not reviewable.
See Heckler v. Ringer, 466 U.S. 602, 614 (1984) (indicating that a court should look beyond a
plaintiff’s own characterization of his complaint when resolving questions of preclusion); O’Neill,
2022 WL 17415057, at *5 (same). Peeking behind the curtain reveals that, “at bottom[,] this case
concerns [the Special Master’s] compensation decisions for 9/11-related claimants.” O’Neill, 2022
WL 17415057, at *5.
While Plaintiffs try to characterize their claims as only seeking a declaration that
Defendants acted unlawfully and an order compelling Defendants to “correctly categorize them,”
ECF No. 23, at 10, the transparent goal of such relief is to alter the amount of their compensation.
7 The only notice-and-comment requirements in the statute apply to the Comptroller General’s Report. 34 U.S.C. § 20144(d)(4)(C)(ii) & (d)(4)(D)(ii).
23 This “end result . . . is the same as if a single 9/11 claimant had raised this issue with respect to her
particular claim: to draw more money from the Fund.” O’Neill, 2022 WL 17415057, at *6. That
is presumably why Plaintiffs ask for this court to make the effect of its judgment “retroactive” to
when the Special Master started the compensation decisional chain. See ECF No. 1 ¶ 240 (asking
that Plaintiffs’ preferred categorization be retroactive to May 19, 2020). The Supplemental-Value,
Nunc-Pro-Tunc, and Dual-Judgment Plaintiffs’ requests for relief make this even more apparent.
Each of these groups expressly ask for their USVSSTF claims to be declared timely so that their
catch-up payments can be recalculated. See id. ¶¶ 244, 249, 253 (requests for relief); id. ¶¶ 192,
213, 232 (explaining that a favorable ruling on timeliness would provide Plaintiffs with
“substantial compensation” and “payments”).
In sum, each of the determinations challenged by Plaintiffs is inextricably linked to the
amount of compensation they are entitled to receive from the USVSSTF. “[L]ook[ing] beyond
Plaintiffs’ characterization of their challenge[s] and view[ing] [them] through the perspective of
the relief sought” reveals that—at their core—Plaintiffs’ claims seek to change the amount of their
distributions from the Fund. O’Neill, 2022 WL 17415057, at *5. Properly contextualized, such
claims are not subject to judicial review.
C. Policy and Purpose
As a final consideration, the purpose of the USVSSTF and attendant policy considerations
weigh against judicial review here. As a practical matter, because every compensation and
distribution decision by the Special Master must be made on a pro rata basis across multiple
subgroups of 9/11-related and non-9/11-related claimants, see 34 U.S.C. § 20144(d)(3), retroactive
modification of payment amounts would create an administrative quagmire. Once a round of
24 distributions has been finalized and paid, “judicial review cannot unscramble the egg.” ECF
No. 18-1, at 18.
More importantly, exposing the Special Master’s countless administrative decisions to
judicial scrutiny would gum up the compensation process for a program that is designed to
expeditiously distribute funds to victims of state-sponsored terrorism. “Congress’s manifest intent
was that the Fund . . . compensate [claimants] efficiently and quickly.” O’Neill, 2022 WL
17415057, at *6. That is why Congress “exempted the Fund’s procedural rules from lengthy
notice-and-comment rulemaking,” id., and instructed the Special Master to authorize the first
round of payments from the USVSSTF within a year of its creation, see Pub. L. No. 114-113,
§ 404(d)(2), 129 Stat. at 3010. “Inserting judicial review into the wide-ranging and technical
decisions of the Special Master regarding the calculation of payments ‘would severely disrupt [the
Fund’s] complex and delicate administrative scheme’ for expeditiously allocating payments to
claimants, potentially creating unreasonable delays and litigation in conjunction with every
distribution round.” O’Neill, 2022 WL 17415057, at *6 (quoting Block, 467 U.S. at 348); Nat’l
Lab. Rels. Bd. v. United Food & Com. Workers Union, Local 23, 484 U.S. 112, 131-32 (1987)
(explaining that it would be “illogical in the extreme” to permit judicial review “where Congress
was convinced that speed of resolution is most necessary”).
25 V. CONCLUSION
For the foregoing reasons, the court will grant Defendants’ Motion to Dismiss, ECF No. 18.
A contemporaneous order will issue.
LOREN L. ALIKHAN United States District Judge Date: September 18, 2025