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”),

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.”

,

, 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,

, 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,

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,

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,

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,

,

, 3007 (2015) (codified at

). Congress appropriated $1.025 billion to start the Fund,

(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,

, at *1 (D.D.C. Dec. 5, 2022); see

(e)(2).

Like the VCF, the USVSSTF is administered by a Special Master.

(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.”

§ 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.

(e)(6).

4 Special Master shall thereafter “issue a final written decision affirming or amending the original

decision,” which is “nonreviewable.”

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).

§ 20144(j)(14);

(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.

(j)(11), (13);

(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.

(j)(12);

(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

(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,

, at *2; United States Victims of

State Sponsored Terrorism Fund Clarification Act (“Clarification Act”),

,

, 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

(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,

(b),

, 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.

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.

§ 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,

(b)(3)(B),

, 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.,

, 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

(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.

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.

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.

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.

.

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.”

. 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.”

. They seek

an order compelling Defendants to credit their supplemental awards and recalculate their catch-up

payments.

.

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.

. The Nunc-Pro-Tunc Plaintiffs also sought

extensions of time to submit their applications to the USVSSTF, but the Special Master denied

their requests.

. 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.

. 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.

. Despite this, the Nunc-Pro-Tunc Plaintiffs were

denied participation in both the third-round distribution and lump sum catch-up payments.

.

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.”

. 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.

. 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.”

.

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.”

. “The majority of the Nunc Pro Tunc

Plaintiffs would have [otherwise] qualified for lump sum catch-up payments.”

. As a

result, they also lost out on additional catch-up payments “of 6.6140585% of their net eligible

claim amounts.”

. 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.

.

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.

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.

. 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.

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.”

(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.

. 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.

.

They seek an order compelling Defendants to recognize their second judgments as timely for

purposes of third-round distributions and catch-up payments.

. 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.”

.

* * *

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.,

(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,

(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,

(D.D.C. 2010) (quoting Jerome Stevens Pharms. Inc. v. Food & Drug Admin.,

(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,

(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.,

(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,

(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,

(2015)

(quoting Bowen v. Mich. Acad. of Fam. Physicians,

(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,

(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,

(alteration in

original) (quoting Dunlop v. Bachowski,

(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,

(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.,

(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,

(D.C. Cir. 2018).

A. Plain Language

The parties agree that the court’s jurisdiction in this case depends on

(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,

(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.”

.

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.”

. The plaintiffs asked the

court to “mandate a different formula for future distributions, which would include reimbursing

them for the prior errors.”

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,

(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,

, 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.”

. “[U]nder the plain text of the statute, the explanation of payments [was]

a ‘decision’ that the Special Master made ‘with regard to compensation.’”

. 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.”

(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.

at *5 (quoting

(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.”

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.”

(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.”

. It also affects the calculation of any catch-up payments. See

(“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

(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

§ 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,

, 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.

(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.

(“[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,

(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,

, 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.”

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.

(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

§ 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,

(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,

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,

. 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,

.

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,

. 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.

at 1206 (quoting Fla. Health Scis.

Ctr., Inc. v. Sec’y of Health & Hum. Servs.,

(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,

. 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.

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.”

(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,

, at *4 (quoting

(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.

(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,

. The D.C. Circuit contrasted this bifurcated scheme with a scenario in which “the

challenged action [is] encompassed within the terms of unreviewable action.”

. As an

example of the latter, the Court pointed to Texas Alliance for Home Care Services v. Sebelius,

(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,

(alterations in

original) (first quoting Tex. All. for Home Care Servs.,

; 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

(d)(1) (explaining that the

Special Master “shall order payment from the Fund for each eligible claim”);

§ 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.”

. 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.

(emphasis added);

see Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin.,

(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,

-07 (citing Tex. All. for Home

22 Care Servs.,

, Mercy Hosp., Inc.,

, and Fla. Health Scis. Ctr., Inc.,

). 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

. 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.

, at *5. Because classifying

claimants into separate groups and determining application timeliness are “decisions . . . with

regard to compensation,”

(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,

(1984) (indicating that a court should look beyond a

plaintiff’s own characterization of his complaint when resolving questions of preclusion); O’Neill,

, 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,

, 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.

(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,

, 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

(requests for relief);

(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,

, 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

(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,

, at *6. That is why Congress “exempted the Fund’s procedural rules from lengthy

notice-and-comment rulemaking,”

and instructed the Special Master to authorize the first

round of payments from the USVSSTF within a year of its creation, see

(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,

, at *6 (quoting Block,

); Nat’l

Lab. Rels. Bd. v. United Food & Com. Workers Union, Local 23,

(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

26