Harger v. Department of Labor, 08-35111.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 569 F.3d 898
• Docket Number: No. 08-35111.,08-35111.
• Parties: Opal HARGER, et al., Plaintiffs, and Edith Watters; Judy M. Hengen; Donna Caputo, Plaintiffs-Appellants, v. DEPARTMENT OF LABOR; National Institute of Occupational Safety and Health, Defendants-Appellees.
• Decision Date: 27 March 2009

569 F.3d 898 Opal HARGER, et al., Plaintiffs, and
Edith Watters; Judy M. Hengen; Donna Caputo, Plaintiffs-Appellants,
v.
DEPARTMENT OF LABOR; National Institute of Occupational Safety and Health, Defendants-Appellees. No. 08-35111. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 8, 2008. Filed March 27, 2009. Amended June 10, 2009.

[569 F.3d 899]

Tom H. Foulds, Tom H. Foulds & Associated Counsel, on behalf of plaintiffs-appellants Opal Harger, et al.

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.

Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, District Judge, Presiding.

[569 F.3d 900]

Before: ROBERT R. BEEZER, RONALD M. GOULD and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING EN BANC AND AMENDED OPINION

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 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)). Moreover, 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 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 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 sovereign 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 Compensation

569 F.3d 901

Program Act, 42 U.S.C. §§ 7384-7385s-15, which entitles 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 government vacated the denials of the administrative claims and subsequently 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 district 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 Occupational 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

Under "Part B" of EEOICPA, covered employees or their eligible survivors may receive compensation in a lump sum payment of $150,000 plus medical benefits for covered individuals.³ 42 U.S.C. § 7384s; see generally id. §§ 7384 l-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 reconstruction). 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 causation. See 42 U.S.C. § 7384l(14); 42 C.F.R. § 83.0. The President, 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

569 F.3d 902

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).

An individual may also petition to add a class of employees to the Cohort by submitting a petition to NIOSH, which evaluates 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 designation 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 assisting 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 former 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.

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 government'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.

569 F.3d 903

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...