Harger v. Department of Labor

• Decision Date: 27 March 2009
• Docket Number: No. 08-35111.,08-35111.
• Citation: 560 F.3d 1071
• 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.
• Court: U.S. Court of Appeals — Ninth Circuit

560 F.3d 1071

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.

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. D.C. No. CV-06-05071-RHW.

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

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 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 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 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. §§ 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 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 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. 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 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 government 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 prerequisite 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 preliminary 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 preliminary 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 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, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) (citation omitted). "A court lacks subject matter jurisdiction over a claim against the United States if it has not...