Opal Harger v. Department of Labor

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPAL HARGER, et al.,  No. 08-35111

Plaintiffs, D.C. No.

and CV-06-05071-RHW

EDITH WATTERS; JUDY M. HENGEN; ORDER

DONNA CAPUTO, AMENDING

Plaintiffs-Appellants,  OPINION AND

v. DENYING

PETITION FOR

DEPARTMENT OF LABOR; NATIONAL REHEARING EN

INSTITUTE OF OCCUPATIONAL BANC AND

SAFETY AND HEALTH, AMENDED



Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Robert H. Whaley, District Judge, Presiding

Argued and Submitted

December 8, 2008—Seattle, Washington

Filed March 27, 2009

Amended June 10, 2009

Before: Robert R. Beezer, Ronald M. Gould and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

6937

HARGER v. DEPARTMENT OF LABOR 6939

COUNSEL

Tom H. Foulds, Tom H. Foulds & Associated Counsel, on

behalf of plaintiffs-appellants Opal Harger, et al.

6940 HARGER v. DEPARTMENT OF LABOR

Rolf H. Tangvald, Assistant United States Attorney, on behalf

of defendants-appellees United States Department of Labor

and the National Institute of Occupational Safety and Health.

ORDER

The opinion filed March 27, 2009, 560 F.3d 1071 (9th Cir.

2009), is hereby amended as follows:

At 560 F.3d at 1076 n.9, replace the entire text of footnote

9 with:

The district court stated the Equal Access to Justice

Act (“EAJA”), 28 U.S.C. § 2412(b), could not form

the basis of an attorney’s fee award even though the

United States has expressly waived sovereign immu-

nity in that provision. This statement was not in

response to an argument by Foulds that EAJA

effected a waiver of sovereign immunity with

respect to his claim for an equitable lien, and,

accordingly, we need not consider on appeal whether

EAJA effects such a waiver. See Balser, 327 F.3d at

908 (“Generally speaking, we will not consider an

issue raised for the first time on appeal.” (citation

and internal quotation marks omitted)). Moreover,

on appeal, Foulds did not distinctly assert that the

United States expressly waived its sovereign immu-

nity under EAJA until his rebuttal during oral argu-

ment. Again, the untimely nature of this argument on

appeal obviates our need to consider it. See Fed. R.

App. P. 28(a)(9)(A) (“The appellant’s brief must

contain . . . appellant’s contentions and the reasons

for them, with citations to the authorities and parts

of the record on which the appellant relies.”); McKay

v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009)

(“Because this argument was not raised clearly and

HARGER v. DEPARTMENT OF LABOR 6941

distinctly in the opening brief, it has been waived.”);

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)

(“We review only issues which are argued specifi-

cally and distinctly in a party’s opening brief.”).

Even if we were to consider this argument, it would

fail because 28 U.S.C. § 2412(b) by its language

applies to “civil actions,” not administrative pro-

ceedings where an attorney successfully represents

claimants. Therefore, section 2412(b) does not pro-

vide an unequivocal waiver of the government’s sov-

ereign immunity in this case.

With this amendment, Judge Gould and Judge Callahan

vote to deny the Petition For Rehearing En Banc, and Judge

Beezer recommends denying the Petition For Rehearing En

Banc. The full court has been advised of the petition and no

judge of the court has requested a vote on the petition.

Accordingly, the Petition For Rehearing En Banc is DENIED.

No further petitions will be entertained.

OPINION

CALLAHAN, Circuit Judge:

Attorney Tom H. Foulds appeals the district court’s denial

of his motion for a preliminary injunction and for an equitable

lien for attorney’s fees, which he based on the “common fund

doctrine.”1 Foulds had brought an administrative petition

before the Department of Labor (“DOL”) and the National

Institute for Occupational Safety and Health (“NIOSH”) on

behalf of several individuals (of a purported class of roughly

400). Foulds sought respective $150,000 lump sum payments

under the Energy Employees Occupational Illness Compensa-

1

The district court discussed the motions at issue here with reference to

Foulds, and not the named plaintiffs. We adopt this convention since this

appeal only involves Foulds’s request for an equitable fee lien.

6942 HARGER v. DEPARTMENT OF LABOR

tion Program Act, 42 U.S.C. §§ 7384-7385s-15, which enti-

tles certain Department of Energy (“DOE”) workers to

compensation for illnesses suffered due to their exposure to

radiation and other toxic substances while working at DOE

facilities. NIOSH denied the administrative petition and

Foulds subsequently filed a petition for review in the district

court. While the district court action was pending, the govern-

ment vacated the denials of the administrative claims and sub-

sequently authorized the award of benefits to qualifying

claimants. Before the dispersal of the funds, Foulds filed the

motions at issue seeking to collect a percentage fee from each

lump sum payment to be made.

The district court denied the motions on the grounds that

the United States government had not waived its sovereign

immunity and that, even if it had, the district court could not

fashion a common fund attorney fee award because it lacked

control over the government funds at issue. We affirm the dis-

trict court’s decision on the ground that the government has

not waived its sovereign immunity. As a result, we do not

address whether the common fund doctrine is applicable in

this case.

I.

A.

In 2000, Congress passed the Energy Employees Occupa-

tional Illness Compensation Program Act, 42 U.S.C. §§ 7384-

7385s-15 (“EEOICPA”), which established a program to

compensate individuals with illnesses (e.g., cancer, beryllium

poisoning) attributable to their exposure to radiation and other

toxic substances (e.g., beryllium, silica) while working for

DOE. See 42 U.S.C. §§ 7384, 7384d; Hayward v. U.S. Dep’t

of Labor, 536 F.3d 376, 377-78 (5th Cir. 2008) (per curiam).2

2

Congress appropriated $250 million to the Energy Employees Occupa-

tional Illness Compensation Fund. See 42 U.S.C. §§ 7384e, 7384g.

HARGER v. DEPARTMENT OF LABOR 6943

Under “Part B” of EEOICPA, covered employees or their eli-

gible survivors may receive compensation in a lump sum pay-

ment of $150,000 plus medical benefits for covered individuals.3

42 U.S.C. § 7384s; see generally id. §§ 7384l-7384w-1.

In most exposure cases, an individual or survivor must file

a claim with the DOL’s Office of Workers’ Compensation

Programs (“OWCP”), which forwards the claim package to

NIOSH4 for a reconstruction or estimation of the amount of

radiation exposure during employment (i.e., dose reconstruc-

tion). See 20 C.F.R. §§ 30.100, 30.101, 30.115, 30.210. After

NIOSH completes a dose reconstruction, OWCP resumes

adjudicative authority over the claim for a final causation

determination. 20 C.F.R. § 30.115(b); see also 42 U.S.C.

§ 7384n (stating causation standards).

Certain employees with specified cancers, however, are

members of a “Special Exposure Cohort” (“Cohort”) for

whom EEOICPA provides a statutory presumption of causa-

tion. See 42 U.S.C. § 7384l(14); 42 C.F.R. § 83.0. The Presi-

dent, on advice of the Advisory Board on Radiation and

Worker Health (“Board”), may designate new classes of

workers for addition to the Cohort. 42 U.S.C. §§ 7384o,

7384q; 42 C.F.R. § 83.1. These additions cover classes of

DOE employees for whom “it is not feasible to estimate with

sufficient accuracy the radiation dose that the class received”

and where “there is a reasonable likelihood that such radiation

dose may have endangered the health of members of the

class.” 42 U.S.C. § 7384q(b); see Exec. Order 13,179, 65 Fed.

Reg. 77,487, 77,488 (Dec. 7, 2000) (delegating President’s

authority to the Secretary of HHS).

3

Similarly, “Part E” of EEOICPA provides compensation for permanent

impairments or wage loss to DOE contractor employees with a covered ill-

ness in the form of a variable lump sum payment. 42 U.S.C. §§ 7385s-1,

7385s-2.

4

NIOSH is part of the Department of Health and Human Services

(“HHS”).

6944 HARGER v. DEPARTMENT OF LABOR

An individual may also petition to add a class of employees

to the Cohort by submitting a petition to NIOSH, which eval-

uates the petition and presents findings to the Board. 42

C.F.R. §§ 83.1-83.9, 83.12-83.14. The Board then makes a

recommendation to the Secretary of HHS regarding designa-

tion of the new class as part of the Cohort. Id. § 83.15. If the

Secretary of HHS designates the new class, he will transmit

a report to Congress defining the new covered class. Id.

§§ 83.16-83.17. This designation takes effect 30 days after

submission of the report unless Congress expedites or

reverses the designation. Id. § 83.17(c). A claimant may seek

administrative review of a final decision denying a petition

for addition to the Cohort. Id. § 83.18.5

EEOICPA limits the attorney’s fees recoverable for assist-

ing a claimant in recovering a Part B payment to a percentage

of the payment received: either “2 percent for the filing of an

initial claim for payment of lump-sum compensation”; or “10

percent with respect to objections to a recommended decision

denying payment of lump-sum compensation.” 42 U.S.C.

§ 7385g(a)-(b).

B.

On January 6, 2006, attorney Foulds filed an administrative

petition “on behalf of a class of workers consisting of all for-

mer employees of Du Pont Company working at the Hanford

Nuclear Reservation” during the 1943 to 1946 period

(“Administrative Petition”). The Administrative Petition

sought to add this class of workers to the Cohort. NIOSH

denied the Administrative Petition.

5

Also, Executive Order 12,988 states: “It is reasonably likely that some

EEOICPA claimants will seek review of adverse decisions in United

States district courts pursuant to the APA (for claims under Part B of

EEOICPA) or the EEOICPA itself (for claims under Part E).” 70 Fed.

Reg. 33,590, 33,604, (June 8, 2005); accord 67 Fed. Reg. 78,874, 78,885

(Dec. 26, 2002).

HARGER v. DEPARTMENT OF LABOR 6945

On October 4, 2006, Opal Harger filed a Petition Praying

to Set Aside Decision to Deny Benefits and Also Praying that

Benefits Be Awarded Plaintiff and For Attorney’s Fees and

Costs (“Review Petition”) in the district court. Harger and

several subsequently-joined plaintiffs, including Hengen,

brought the Review Petition seeking review, under the APA’s

“arbitrary and capricious” standard, of the decision not to add

a class of employees to the Cohort.6 The Review Petition

sought attorney’s fees and costs pursuant to 5 U.S.C. § 504.

While the Review Petition was pending in the district court,

OWCP’s Director of Energy Employees Occupational Illness

Compensation vacated all of the final decisions that denied

the plaintiffs’ respective administrative claims. On the gov-

ernment’s motion, the district court stayed each claim pending

the issuance of new final decisions on each administrative

claim. Subsequently, the Secretary of HHS designated the

proposed class of Du Pont workers as part of the Cohort,

effective October 12, 2007.7 See 72 Fed. Reg. 61,167, 61,168

(Oct. 29, 2007). The parties estimate that this class covers

approximately 350 to 400 workers and/or survivors.

Foulds thereafter filed a motion in the district court for (1)

a preliminary injunction to prevent DOL from distributing

funds for payment of any EEOCIPA lump sum payments to

the new members of the Cohort; and (2) an equitable lien for

attorney’s fees on every DOL payment, under a common fund

theory, related to his work on the Administrative Petition.8

6

Foulds is seeking attorney’s fees on behalf of plaintiff Hengen. Har-

ger’s present relevance to this appeal is limited to the use of her name in

the caption.

7

Foulds has not cited record evidence reflecting his efforts, if any, to

pursue attorney’s fees in the administrative action.

8

Generally, under the common fund doctrine, “a litigant or a lawyer

who recovers a common fund for the benefit of persons other than himself

or his client is entitled to a reasonable attorney’s fee from the fund as a

whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); see also

Vincent v. Hughes Air W., Inc., 557 F.2d 759, 769 (9th Cir. 1977).

6946 HARGER v. DEPARTMENT OF LABOR

The district court denied both motions. It held that Foulds’s

claims for attorney’s fees based on the common fund doctrine

failed because (a) sovereign immunity, which the government

had not waived, “bars creditors from enforcing a lien on gov-

ernment property”; and (b) the common fund doctrine did not

apply to the “legislative” actions that added the claimants to

the Cohort, as opposed to judicial actions, because the district

court did not have control over the funds at issue, a prerequi-

site to application of the common fund doctrine. Foulds filed

a timely notice of appeal.

II.

We review de novo the district court’s dismissal for lack of

subject matter jurisdiction, including whether the United

States has waived its sovereign immunity. Montana v. Goldin

(In re Pegasus Gold Corp.), 394 F.3d 1189, 1193 (9th Cir.

2005); Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806

(9th Cir. 2003). We review the grant or denial of a prelimi-

nary injunction for an abuse of discretion. A & M Records,

Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). “If

the district court is claimed to have relied on an erroneous

legal premise in reaching its decision to grant or deny a pre-

liminary injunction, we will review the underlying issue of

law de novo.” Id.

III.

We must determine whether the United States government

waived its sovereign immunity as to Foulds’s claim for an

equitable attorney fee lien against the lump sum payments to

be made to the Du Pont members of the Cohort. The district

court held that the federal government had not effected any

such waiver. We agree.

Sovereign immunity is at issue because Foulds, in essence,

sued agencies of the United States, DOL and NIOSH, for

money in its possession. See Kalodner v. Abraham, 310 F.3d

HARGER v. DEPARTMENT OF LABOR 6947

767, 770 (D.C. Cir. 2002) (“[T]he sine qua non of federal

sovereign immunity is the federal government’s possession of

the money in question.”). “ ‘Absent a waiver, sovereign

immunity shields the Federal Government and its agencies

from suit.’ ” Dep’t of the Army v. Blue Fox, Inc., 525 U.S.

255, 260 (1999) (citation omitted). “A court lacks subject

matter jurisdiction over a claim against the United States if it

has not consented to be sued on that claim.” Balser v. Dep’t

of Justice, 327 F.3d 903, 907 (9th Cir. 2003). “A waiver of

the Federal Government’s sovereign immunity must be

unequivocally expressed in statutory text . . . and will not be

implied.” Lane v. Pena, 518 U.S. 187, 192 (1996). Further, a

waiver of immunity “will be strictly construed, in terms of its

scope, in favor of the sovereign.” Id. The Supreme Court has

called this a “high standard.” Blue Fox, 525 U.S. at 261.

Foulds contends that the United States expressly waived its

sovereign immunity with respect to his equitable lien claim in

the APA, 5 U.S.C. § 702, which states, in pertinent part:

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof. An action in a

court of the United States seeking relief other than

money damages and stating a claim that an agency

or an officer or employee thereof acted or failed to

act in an official capacity or under color of legal

authority shall not be dismissed nor relief therein be

denied on the ground that it is against the United

States or that the United States is an indispensable

party.

(Emphasis added.) Pursuant to 5 U.S.C. § 702, a plaintiff

must seek “relief other than money damages.” Marceau v.

Blackfeet Hous. Auth., 540 F.3d 916, 929 (9th Cir. 2008).

6948 HARGER v. DEPARTMENT OF LABOR

Foulds contends that his claim for an equitable fee lien seeks

relief other than money damages.9

The Supreme Court has offered guidance regarding

whether sovereign immunity precludes the enforcement of

equitable liens against the United States. In Department of the

Army v. Blue Fox, Inc., the Court held that the Army had not

waived sovereign immunity under 5 U.S.C. § 702 where an

unpaid subcontractor on a government construction project

sued the Army seeking to enforce an equitable lien for money

owed to it by an insolvent prime contractor. See 525 U.S. at

256-57. Clarifying its prior decision in Bowen v. Massachu-

setts, 487 U.S. 879 (1988), the Court stated that “the crucial

question under § 702 is not whether a particular claim for

relief is ‘equitable’ . . . , but rather what Congress meant by

9

The district court stated the Equal Access to Justice Act (“EAJA”), 28

U.S.C. § 2412(b), could not form the basis of an attorney’s fee award even

though the United States has expressly waived sovereign immunity in that

provision. This statement was not in response to an argument by Foulds

that EAJA effected a waiver of sovereign immunity with respect to his

claim for an equitable lien, and, accordingly, we need not consider on

appeal whether EAJA effects such a waiver. See Balser, 327 F.3d at 908

(“Generally speaking, we will not consider an issue raised for the first

time on appeal.” (citation and internal quotation marks omitted)). More-

over, on appeal, Foulds did not distinctly assert that the United States

expressly waived its sovereign immunity under EAJA until his rebuttal

during oral argument. Again, the untimely nature of this argument on

appeal obviates our need to consider it. See Fed. R. App. P. 28(a)(9)(A)

(“The appellant’s brief must contain . . . appellant’s contentions and the

reasons for them, with citations to the authorities and parts of the record

on which the appellant relies.”); McKay v. Ingleson, 558 F.3d 888, 891 n.5

(9th Cir. 2009) (“Because this argument was not raised clearly and dis-

tinctly in the opening brief, it has been waived.”); Greenwood v. FAA, 28

F.3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued

specifically and distinctly in a party’s opening brief.”). Even if we were

to consider this argument, it would fail because 28 U.S.C. § 2412(b) by

its language applies to “civil actions,” not administrative proceedings

where an attorney successfully represents claimants. Therefore, section

2412(b) does not provide an unequivocal waiver of the government’s sov-

ereign immunity in this case.

HARGER v. DEPARTMENT OF LABOR 6949

‘other than money damages’ . . . .” Blue Fox, 525 U.S. at 261.

It concluded that “Congress employed this language to distin-

guish between specific relief and compensatory, or substitute,

relief.”10 Id. The Court reiterated that “Bowen’s interpretation

of § 702 thus hinged on the distinction between specific relief

and substitute relief, not between equitable and nonequitable

categories of remedies.” Id. at 262. “Damages are given to the

plaintiff to substitute for a suffered loss, whereas specific

remedies are not substitute remedies at all, but attempt to give

the plaintiff the very thing to which he was entitled.” Id.

(quoting Bowen, 487 U.S. at 895) (internal quotation marks

omitted).

Addressing the equitable lien at issue in Blue Fox, the

Court held that the equitable lien sought by the subcontractor

—a lien for non-payment on a contract—constituted a claim

for money damages. Id. at 262-63. The Court commented on

the nature of liens, stating:

Liens, whether equitable or legal, are merely a

means to the end of satisfying a claim for the recov-

ery of money. Indeed, equitable liens by their nature

constitute substitute or compensatory relief rather

than specific relief. An equitable lien does not “give

the plaintiff the very thing to which he was entitled”;

instead, it merely grants a plaintiff “a security inter-

est in the property, which [the plaintiff] can then use

to satisfy a money claim,” usually a claim for unjust

enrichment.

Id. (citations omitted). The Court further stated that its hold-

ing was in accord with its prior decisions “establishing that

10

In Bowen, the Court held that a federal district court had jurisdiction

to review a final order of the Secretary of HHS refusing to reimburse a

state for a category of expenditures under a Medicaid program to which

the state would have otherwise been entitled under the statute, finding a

waiver of sovereign immunity in 5 U.S.C. § 702. See 487 U.S. at 891-901.

6950 HARGER v. DEPARTMENT OF LABOR

sovereign immunity bars creditors from attaching or garnish-

ing funds in the Treasury, or enforcing liens against property

owned by the United States.” Id. at 264 (citations omitted).

The Court’s discussion of equitable liens as security inter-

ests, i.e., substitute or compensatory relief, supports the dis-

trict court’s holding that equitable liens seek money damages

and, therefore, the United States has not waived sovereign

immunity under 5 U.S.C. § 702. Foulds’s request for an equi-

table lien is an attempt to encumber the funds in the posses-

sion of the federal government such that future payments of

lump sum Part B entitlements must also incorporate a percent-

age fee for his services. He is not seeking the very thing that

he is entitled to from the government; instead he seeks a

security interest and is attempting to secure compensation

through an indirect procedure when he cannot do so directly.

Therefore, 5 U.S.C. § 702 does not statutorily waive the gov-

ernment’s sovereign immunity.

Foulds does not directly challenge the Court’s teaching that

equitable liens are by their nature substitute relief for the pur-

pose of 5 U.S.C. § 702. Instead, he argues that Blue Fox is

distinguishable from the present case because the Court’s dis-

cussion was limited to the “sort of equitable lien sought” in

that case, not all equitable liens. He contends that the lien in

Blue Fox sought to compensate the subcontractor for a loss or

damages it suffered as a result of nonpayment by the prime

contractor; whereas, here, Foulds is seeking attorney’s fees on

money to which the Du Pont workers are entitled.11 Foulds’s

argument is unpersuasive because it conflates the Du Pont

workers’ Part B entitlement under EEOICPA with his own

purported entitlement to attorney’s fees as a result of the

11

Foulds argues: “Once the worker qualifies [for a Part B payment

under EEOICPA] . . . , the award becomes an entitlement, ‘to give the

plaintiff the very thing to which he was entitled.’ In other words, an award

for which he is eligible is not for money damages as substitute compensa-

tion for a loss, rather it is specific relief for an entitlement.”

HARGER v. DEPARTMENT OF LABOR 6951

Administrative Petition. Moreover, like the lien at issue in

Blue Fox, the goal of Foulds’s lien here is “to seize or attach

money in the hands of the Government as compensation” for

services he provided to non-clients in the administrative pro-

ceedings that he cannot otherwise collect directly. 525 U.S. at

263.

Alternatively, Foulds argues that “DOL implicitly admitted

that claims for worker awards are not claims for ‘money dam-

ages’ subject to sovereign immunity” in Executive Order

12,988, which states that Part B claimants “will likely seek

review of adverse decisions in . . . district courts pursuant to

the [APA] . . . .” 67 Fed. Reg. 78,885. We reject this argu-

ment because finding an implicit waiver of sovereign immu-

nity in the APA would run afoul of the Court’s holding that

a waiver of sovereign immunity “must be unequivocally

expressed in statutory text . . . and will not be implied.” Lane,

518 U.S. at 192. Moreover, finding an implicit waiver would

be counter to the Court’s prescription that a waiver “will be

strictly construed, in terms of its scope, in favor of the sover-

eign.” Id.

Foulds has not demonstrated that the United States waived

its sovereign immunity.12 As a result, we lack jurisdiction over

this case.

IV.

The United States has not waived its sovereign immunity

in 5 U.S.C. § 702, which effects a waiver only where a claim-

ant seeks “relief other than money damages.” Foulds’s claim

for an equitable lien seeks a security interest against

EEOICPA payments, not “relief other than money damages.”

See Blue Fox, 525 U.S. at 260-63. Accordingly, the United

12

At oral argument, Foulds abandoned his argument, which he raised for

the first time on appeal, that a Washington State attorney lien statute pro-

vides a waiver of sovereign immunity.

6952 HARGER v. DEPARTMENT OF LABOR

States has not waived its sovereign immunity, and the district

court’s grant of summary judgment to the United States is

AFFIRMED.