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.