Consolidated Edison Co. of New York, Inc. v. Bodman

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2006 Decided April 21, 2006

No. 05-5089

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., ET AL.,
APPELLANTS

V.

SAMUEL W. BODMAN,
SECRETARY OF ENERGY, UNITED STATES AND
GEORGE B. BREZNAY, DIRECTOR, OFFICE OF HEARINGS AND
APPEALS OF U.S. DEPARTMENT OF ENERGY,
APPELLEES

Consolidated with
05-5090 and 05-5223

No. 05-7009

PHILIP P. KALODNER,
APPELLANT

V.

PUBLIC SERVICE ELECTRIC & GAS COMPANY, ET AL.,
APPELLEES
 2

Appeal from the United States District Court
for the District of Columbia
(No. 03cv01991)
(No. 05cv00024)
(No. 04cv00152)

Philip P. Kalodner, appearing pro se in Nos. 05-5090 and
05-7009 and on behalf of Consolidated Edison Company of
New York, Inc., et al. in Nos. 05-5089 and 05-5223, argued
the cause and filed the briefs for appellants/cross-appellees.

In Nos. 05-5089, 05-5090, and 05-5223, William G.
Kanter, Deputy Director, U.S. Department of Justice, argued
the cause for appellees/cross-appellants. With him on the
briefs were Peter D. Keisler, Assistant Attorney General,
Kenneth L. Wainstein, U.S. Attorney, and Edward
Himmelfarb, Attorney. Stephen C. Skubel and Thomas H.
Kemp, Attorneys, U.S. Department of Energy, entered
appearances.

In No. 05-7009, Michael F. Healy argued the cause for
appellees Public Service Electric & Gas Company, et al. With
him on the brief were Thomas A. Schmutz and Brooke Clagett.

Also in No. 05-7009, David F. Smith argued the cause for
appellees General Council on Finance and Administration of
the United Methodist Church, et al. With him on the brief
was Stanley O. Sher.

Before: SENTELLE, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
 3

WILLIAMS, Senior Circuit Judge: For eight years (from
1973 to 1981) the government imposed price controls on the
sale of crude oil. In and since that period, it has collected
refunds from the suppliers whose prices exceeded the ceilings
and has distributed the proceeds to persons and firms that paid
supra-ceiling prices. Indeed, the process of distributing
refunds continues to this day. The statutory authority
underlying these efforts appears in the Emergency Petroleum
Allocation Act of 1973, Pub. L. No. 93-159, 87 Stat. 627
(1973) (“EPAA”), incorporating the Economic Stabilization
Act Amendments of 1971, Pub. L. No. 92-10, 85 Stat. 743
(1971) (“ESA”). We deal here with claims for attorneys’ fees
for litigation undertaken by Philip P. Kalodner in connection
with the distribution.

For roughly two decades, Kalodner has represented a
group of six electric utility companies and three paper
manufacturers (collectively, the “clients”) in their quests to
obtain crude oil pricing refunds. On behalf of himself and his
clients, he invokes the “common fund” theory to support
claims for legal fees, making claims against both the
government and many of the refund beneficiaries who were
not his clients. The common funds, he claims, arose out of
alleged legal victories in two cases, known here as Con Ed IV
(more formally, Consolidated Edison Co. of New York v.
Abraham, 271 F. Supp. 2d 104 (D.D.C. 2003)), and Con Ed V
(more formally, Consolidated Edison Co. of New York v.
Abraham, No. 03-1991 (D.D.C. June 30, 2004)). Although
the amounts at stake keep shifting for a variety of reasons,
Con Ed IV involves about $264 million, Con Ed V about $35
 4

million (which may overlap with the $264 million).1 We
have, then, two sets of claimants (Kalodner and his clients),
two sets of possible fee payers (the government and the
beneficiaries), and two alleged legal “wins” (Con Ed IV and
Con Ed V). Because of the complexity we provide a
scorecard:

Table 1: An Overview of the Claims

Fee Applicant:
Clients Kalodner Kalodner
Against Against Against
Government Government Beneficiaries
Seeking fee 1. 3. 5.
for District court District court District court
Con Ed IV denies; we reverse denies; we denies; we
($264MM) and remand. affirm. reverse and
(2004 Motion) (2005 lawsuit) remand.
(2004 lawsuit)
Seeking fee 2. 4. 6.
for District court District court District court
Con Ed V grants; we reverse. denies; we denies; we
($35MM) (2004 Motion) affirm. affirm.
(2005 lawsuit) (2004 lawsuit)

1
See Notice of Final Procedures for Distribution of
Remaining Crude Oil Overcharge Refunds, 69 Fed. Reg. 29,300,
29,301 (May 21, 2004). We use these numbers only to give an idea
of the magnitudes; in the event that any fees are awarded, sorting
out the amounts, and the degree to which they are attributable to the
one court decision left standing as conceivably justifying a fee
(Con Ed IV), will not be simple.
 5

The fee claims under review were asserted in a motion in
Con Ed V and in two separate lawsuits. Specifically, the
claims against the government took the form of (1) a motion
in 2004 in Con Ed V on behalf of Kalodner’s clients for fees
in winning the alleged victories in both cases (claims 1 & 2 in
Table 1), and (2) a separate lawsuit in 2005 on behalf of
Kalodner himself, again for both alleged victories (claims 3 &
4 in Table 1). In each the clients and Kalodner sought a fee of
10% of the final distribution. In a consolidated opinion, the
district court rejected Kalodner’s claims (against the
government) with respect to both Con Ed IV and Con Ed V,
reasoning primarily that the partial waiver of sovereign
immunity provided by the Equal Access to Justice Act, 28
U.S.C. § 2412(b) (“EAJA”), runs in favor only of parties, not
their lawyers. See Mem. Op. at 6 (D.D.C. Jan. 26, 2005)
(“Consolidated Mem. Op.”), filed in both Con Ed V and
Kalodner v. Abraham, No. 05-0024 (D.D.C. Jan. 26, 2005)
(“Kalodner-Abraham”). Kalodner appeals (Kalodner v.
Abraham appears sub nom. Kalodner v. Bodman, No. 05-
5090),2 and we affirm (thus rejecting claims 3 & 4 in Table 1).

In the same opinion the court also rejected the clients’
claims against the government with respect to Con Ed IV
(claims 1 & 2 in Table 1). Consolidated Mem. Op. at 5-6. In
doing so it said it was applying the law-of-the-case doctrine,
citing its own prior decision finding the fees claim barred by
sovereign immunity. See Order, Con Ed IV (Dec. 4, 2003)
(the “Dec. 4, 2003 Order”), aff’d, Consolidated Edison Co. of
New York v. Abraham, No. 04-1141 (Fed. Cir. June 14, 2004).

2
Kalodner simultaneously appealed to the Federal Circuit as
No. 05-1310, which that circuit deferred pending decisions here.
See Order (Fed. Cir. May 31, 2005).
 6

(The district court later characterized the second motion for
fees for work in Con Ed IV as “an improper collateral attack
on the decision of the Federal Circuit.” Consolidated Mem.
Op at 11, thus invoking issue and/or claim preclusion, which
appear, given the Federal Circuit’s affirmance of the court’s
earlier decision, to be the most apt doctrines.) But the court
accepted the clients’ claims for their lawyer’s supposed
contribution in Con Ed V, and awarded a fee of 30% of the
roughly $35 million there at stake. See Consolidated Mem.
Op. at 9-11. (We have discovered no request by Kalodner in
these cases for more than 10%.) The clients appeal as to
Con Ed IV (our No. 05-5089), and the government cross-
appeals as to Con Ed V (our No. 05-5223).3 We reverse and
remand the judgment against the clients as to Con Ed IV,
because Kalodner’s efforts in that case may have satisfied the
causal requirements for a common fund recovery. (The
government having failed to argue issue or claim preclusion,
we express no opinion on those defenses.) We reverse the
judgment in favor of the clients as to Con Ed V, because it is
clear that that lawsuit failed to yield any court-ordered relief
and more generally played no material role in the successes
claimed.

In the second independent lawsuit, Kalodner brought
claims on his own behalf (not for the clients) against refund
beneficiaries in 2004 (claims 5 & 6 in Table 1), again seeking
10% of the total recovery. The district court resolved the
claims against him, Kalodner v. Public Service Electric &

3
The clients simultaneously appealed to the Federal Circuit as
No. 05-1309, and DOE cross-appealed there as No. 05-1450. The
Federal Circuit entered an order deferring consideration of these
parallel appeals. See Order (Fed. Cir. June 17, 2005).
 7

Gas, No. 04-152 (D.D.C. Dec. 20, 2004) (“Kalodner-Public
Service”), and he appeals (our No. 05-7009).4 We reverse that
decision in part and remand, finding that Kalodner may be
able to show that his activity in Con Ed IV played a sufficient
role to justify a fee recovery; we also affirm in part, as the
record makes clear that there was no such victory in Con
Ed V.

We note by way of background that the common fund
theory conventionally rests on a theory that beneficiaries of
the lawsuit would be unjustly enriched if not compelled to pay
a share of the fees that made success possible. See, e.g.,
Swedish Hospital v. Shalala, 1 F.3d 1261, 1265 (D.C. Cir.
1993). It may well be that courts have found it sensible to
apply the unjust enrichment principle here (after all, human
life abounds in windfalls) because doing so answers a
potential free-rider problem. See Wal-Mart Stores Health &
Welfare Plan v. Wells, 213 F.3d 398, 402 (7th Cir. 2000)
(noting that free riding on attorney’s efforts would be
“contrary to the equitable concept of ‘common fund’”); cf.
United States v. Tobias, 935 F.2d 666, 668 (4th Cir. 1991)
(“Generally, a fund claimant who is represented by
counsel . . . is deemed not to have taken a ‘free ride’ on the
efforts of another’s counsel.”); John P. Dawson, Lawyers and
Involuntary Clients: Attorney Fees from Funds, 87 HARV. L.
REV. 1597, 1647-51 (1974) (discussing incentives to free ride
on attorneys’ efforts). If lawyers considering representation
of some but not all of a cluster of beneficiaries can recover
compensation only from beneficiaries who actively retain

4
Kalodner simultaneously appealed to the Federal Circuit as
No. 05-1214, which the circuit deferred pending decisions here.
See Order (Fed. Cir. Mar. 25, 2005).
 8

them, claims will not be brought—even though meritorious—
where the expected value of the gains for beneficiaries willing
to participate can’t generate adequate compensation for
counsel (and thus enable the bringing of suit). Under a rule
awarding fees out of litigation proceeds received by passive
beneficiaries, lawyers’ anticipation of fee recoveries will
provide the requisite incentive. In some cases, of course, a
subset of potential beneficiaries will have stakes large enough
to call forth ample litigation effort; if so, the free-rider
concern declines, possibly to nil. This last point would be
pertinent, if at all, in calculation of fees.

* * *

The history preceding these cases is a long and tortured
one, recounted in bits and pieces elsewhere. See Kalodner v.
Abraham, 310 F.3d 767 (D.C. Cir. 2002) (“Kalodner I”);
Consolidated Edison Co. of New York v. Abraham, 303 F.3d
1310 (Fed. Cir. 2002); Consolidated Edison Co. of New York
v. Ashcroft, 286 F.3d 600 (D.C. Cir. 2002); Consolidated
Edison Co. of New York v. Richardson, 233 F.3d 1376 (Fed.
Cir. 2000) (“Con Ed III”); Kalodner v. Abraham, 309 F. Supp.
2d 100 (D.D.C. 2004); Con Ed IV; Consolidated Edison Co.
of New York v. O’Leary, 4 Energy Management (CCH)
¶ 26,698 (D.D.C. 1996), aff’d, 117 F.3d 538 (Fed. Cir. 1997)
(“Con Ed II”); Consolidated Edison Co. v. Herrington, 752 F.
Supp. 1082 (D.D.C. 1990). For our purposes, it suffices to
summarize only the bare background facts.

The statutes mentioned at the outset empowered the
Department of Energy (“DOE”) to recover overcharges in
violation of the price controls, and it has done so to the tune of
several billion dollars. As part of a settlement in a multi-
 9

district litigation, In re Department of Energy Stripper Well
Exemption Litigation, 653 F. Supp. 108 (D. Kan. 1986)
(“Stripper Well”), DOE authorized its Office of Hearings and
Appeals (“OHA”) to begin distributions of this money to
parties who had paid supra-ceiling prices. DOE placed 20%
of the remaining crude oil overcharge funds into escrow for
potential distribution to private firms and persons that were
not parties to the settlement, leaving the remaining 80% to be
split between federal and state governments. See Statement of
Modified Restitutionary Policy in Crude Oil Cases, 51 Fed.
Reg. 27,899 (Aug. 4, 1986). Since then, OHA has processed
over 100,000 claims, and in two rounds of distributions has
paid out roughly $610 million to private beneficiaries (as
opposed to governments). See Con Ed IV, 271 F. Supp. 2d at
106-07. The cases here concern the distribution of roughly
$280 million remaining in escrow at the date of oral argument.

Kalodner’s clients will cumulatively receive up to 15% of
all crude oil refunds to private parties. The clients have
compensated him for his services, but he and the clients now
seek a common fund fee of approximately $27 million out of
the sums paid or to be paid to many of the roughly 56,000
other refund recipients (past or future). We say “many”
because the fee claimants have evidently chosen not to pursue
parties receiving relatively small amounts, as well as about 30
beneficiaries with whom Kalodner has fee agreements.
(Although in all instances the fees would in economic reality
be paid by the beneficiaries, we distinguish (as does the law)
between claims made against the government and ones made
against beneficiaries.)

Kalodner and his clients assert that his civil litigation in
Con Ed IV and Con Ed V preserved and increased the
remaining final distribution for the benefit of the whole class.
 10

In Con Ed IV, they claim, Kalodner created or preserved a
common fund (now amounting to about $280 million) by
securing a declaratory judgment that the government
distribute all remaining amounts of money in the 20% reserve
for private parties. There his clients had moved for partial
summary judgment on prayers for relief (1) that the fund be
expanded beyond the 20% reserve, (2) that certain proceeds
from a settlement agreement be included in the 20% reserve,
and (3) that the funds collected be distributed without further
delay. The district court denied the motion with respect to the
first two requests, and granted it in part with respect to the
third, declaring the beneficiaries’ entitlement to have DOE
distribute the money “insofar as practicable.” 271 F. Supp. 2d
at 112. But the court neither ordered an immediate
distribution nor issued a timetable. Contrary to the clients’
request, the court found itself “unable either to issue a writ of
mandamus ordering DOE to complete distribution of those
funds or to declare that further delay in making the final
distribution is unjustified.” Id. at 111.

As noted above, the decision under review denying
Kalodner’s clients’ request for a fee based on Con Ed IV is the
second district court decision to do so. The clients initially
moved for fees in Con Ed IV in 2003 (then seeking only 5%),
and the court denied the motion on the ground that the money
was in the possession of the U.S. government and thereby
protected by sovereign immunity. Dec. 4, 2003 Order at 1-2.
The clients at the same time moved for joinder of sixteen
refund beneficiaries as class representatives of the
“respondents” to the fee motion. See Motion to Add Parties
as Respondents to Motion for Award of Common Fund Fee at
1, Con Ed IV (Oct. 9, 2003). The court denied the motion for
joinder, on the grounds that it would be “inappropriate,
particularly given the Court’s ruling on [sovereign
 11

immunity].” Id. The clients appealed the Dec. 4, 2003 Order
to the Federal Circuit, which has exclusive jurisdiction over
ESA issues, see ESA § 211(b)(2), amended by Pub. L. No.
102-572, 106 Stat. 4506 (1992), and that court affirmed
without opinion. See Consolidated Edison Co. of New York v.
Abraham, 101 Fed. Appx. 356 (Fed. Cir. 2004). In 2004 the
clients filed another motion, renewing the claim, which the
district court, noting the unsuccessful appeal to the Federal
Circuit, denied on grounds of preclusion. The clients appeal.

As to Con Ed V, Kalodner and his clients argue that the
litigation increased the beneficiaries’ refunds by roughly $35
million by compelling DOE to modify its “volumetric
method” of calculation. See Mem. Op., Con Ed V (June 30,
2004). The clients’ lawsuit sought an order of final
distribution and alluded in general terms to the methodology
for computing refunds. Of the two modifications that
Kalodner and the clients would now attribute to Con Ed V,
one (“deferral”) is not mentioned in the complaint; the other
(inclusion of the “Citronelle account”) is mentioned but as we
shall see (in Part III below on “Causation”) appears never to
have been in dispute. After the case was filed, DOE issued its
notice of proposed procedures for final distribution. See
Notice of Proposed Procedures for Distribution of Remaining
Crude Oil Overcharge Refunds and Opportunity for
Comment, 68 Fed. Reg. 64,098 (Nov. 12, 2003) (“Proposed
Procedures”). Kalodner participated on behalf of his clients
in the ensuing administrative proceeding, and in that forum
urged inclusion of the Citronelle account and, for the first
time, “deferral.” Another participant urged the same points.
DOE accepted these suggestions, with the result (we are told)
of effectively increasing the total refund amount by $35
million, and published its final order several months later.
See Notice of Final Procedures for Distribution of Remaining
 12

Crude Oil Overcharge Refunds, 69 Fed. Reg. 29,300 (May 21,
2004) (“Final Procedures”). Because the final distribution
appeared to be well under way by the time the court ruled, the
court dismissed Con Ed V as moot. Mem. Op., Con Ed V
(June 30, 2004).

* * *

We review the several dispositions de novo. This is
obvious for the outright dismissals of claims, see, e.g.,
Masonry Masters v. Nelson, 105 F.3d 708, 710-11 (D.C. Cir.
1997), but also applies to the court’s grant of fees in favor of
Kalodner’s clients for his work on Con Ed V, as the issues,
with one exception, are ones of law, for which the standard of
review is almost invariably de novo. See Edmonds v. FBI,
417 F.3d 1319, 1322 (D.C. Cir. 2005). The exception relates
to Kalodner’s causal role in generating the beneficiaries’
recovery, an issue of course containing elements of fact. But
the district court has so far engaged in no fact-finding, and all
we have before us are the movants’ allegations. We assume
the correctness of the allegations of specific facts, but not of
conclusions. For these we ask whether the record and specific
allegations support an inference of causation. See Judicial
Watch, Inc. v. U.S. Senate, 432 F.3d 359, 360 (D.C. Cir.
2005).

We proceed below in three steps. First, we consider
sovereign immunity. We find that three claims (claims 2, 3 &
4) are barred. The fee sought by Kalodner’s clients from the
government (claim 2) is barred with respect to his efforts in
Con Ed V (allegedly modifying the volumetric method):
sovereign immunity applies, so that the clients are barred in
the absence of a waiver, and they were not prevailing parties
 13

within the meaning of EAJA’s waiver provision. With respect
to work in Con Ed IV, however, the clients qualify under
EAJA as prevailing parties in the minimal sense of the term;
but (as we see in the third step) there is considerable doubt
whether their litigation efforts played the causal role needed to
qualify for a common fund fee recovery. Kalodner’s suit
against the government in his own name (claims 3 & 4) enjoys
no EAJA waiver because he was not a party to the underlying
suits. And because Kalodner’s claims against the
beneficiaries (claims 5 & 6) are not against the government
(except with respect to one remedy request, which is
severable), sovereign immunity is completely inapplicable.
Thus, the only claims surviving sovereign immunity are the
clients’ claim against the government for Con Ed IV and both
of Kalodner’s claims against beneficiaries (claims 1, 5 & 6).

Second, preclusion issues abound. The beneficiaries fail
to make out a case for issue preclusion of the claims against
them (claims 5 & 6). The government has failed to press its
possible preclusion arguments (claim 1); thus we discuss them
only briefly and note that under our case law the omission
need not be fatal to the preclusion arguments’ resurrection on
remand. See Stanton v. District of Columbia Court of
Appeals, 127 F.3d 72, 77 (D.C. Cir. 1997).

Finally, as our summary has made clear, for claims not
barred by sovereign immunity, the controlling issue is whether
Kalodner’s civil litigation played a sufficient role in
generating the supposed “common funds” to warrant a fee
award. The answer is “maybe” for Con Ed IV (for the claim
by the clients against the government (claim 1) and the claim
by Kalodner against the beneficiaries (claim 5)), and “no” for
Con Ed V (claim 6).
 14

We note that the government distributed the bulk of the
remaining refunds on the day of oral argument. See Final
Procedures for Distribution of Remaining Crude Oil
Overcharge Refunds, 71 Fed. Reg. 2,195 (Jan. 13, 2006). But
as the government set aside 10% of the private party refunds
pending this litigation (i.e., 10% of the 20% reserved for
private parties under the Stripper Well settlement, see
discussion in Part III.A. below), id. at 2,195-96, the
distribution doesn’t moot the case.

I. Sovereign Immunity

The threshold issue for the fee recovery suits is whether
the funds are protected by sovereign immunity. Monetary
claims against the government are barred by sovereign
immunity unless the government has expressly waived its
immunity. See Lane v. Peña, 518 U.S. 187, 192 (1996). To
some degree Kalodner and his clients argue that sovereign
immunity is simply out of the picture because of the nature of
their claims and the status of the refund process. In
anticipation of the failure of this theory, they assert a waiver
theory under EAJA. We address first the suit by Kalodner’s
clients against the government, then Kalodner’s own suit
against the government, and finally his suit against the
beneficiaries. Lastly, in all claims Kalodner and his clients
invoke ESA § 209 as yet another waiver theory. We find that
resolution of an ESA issue, which falls under the exclusive
appellate jurisdiction of the Federal Circuit, is not likely to be
required.
 15

A. Kalodner’s clients’ claims against the government

In Kalodner I, addressing Kalodner’s efforts to recover a
common fund fee in other crude oil refund litigation, we held
that “the sine qua non of federal sovereign immunity is the
federal government’s possession of the money in question.”
310 F.3d at 770. We found sovereign immunity applicable,
without more, once we had determined that the government
was in possession of the relevant funds. Thus Kalodner I
makes clear that government possession of funds is itself
sufficient to establish sovereign immunity. Here, except for
the money distributed, which the government no longer
possesses, the money in dispute is clearly in the government’s
possession so that, under Kalodner I, sovereign immunity
appears to apply. Unless Kalodner’s clients can point to a
waiver, their claims against the government (claims 1 & 2) are
barred.

The clients’ first effort to overcome that conclusion rests
on a number of inapplicable cases. First they cite the
Supreme Court’s decision in Boeing Co. v. Van Gemert, 444
U.S. 472 (1980), especially its observation that a common
fund fee recovery would be appropriate “when each member
of a certified class has an undisputed and mathematically
ascertainable claim to part of a lump-sum judgment recovered
on his behalf.” Id. at 479. But the decision involves fee
recovery in private litigation and has nothing to do with
sovereign immunity. Were the clients to establish the
inapplicability of sovereign immunity, or a waiver, Boeing
might help them meet the ordinary common fund
prerequisites, but it does nothing to get them over the initial
sovereign immunity hurdle. Commonwealth of Puerto Rico v.
Heckler, 745 F.2d 709 (D.C. Cir. 1984), and Swedish Hospital
Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993), are equally
 16

useless in the clients’ effort to finesse the sovereign immunity
problem. Although both were suits against the government, in
Puerto Rico we found EAJA applicable (thus presupposing a
sovereign immunity bar), and in Swedish Hospital the only
issue was computation of the fee, the entitlement having
evidently been conceded or established. Finally, National
Treasury Employees Union v. Nixon, 521 F.2d 317 (D.C. Cir.
1975), is of no use to the clients on sovereign immunity; as we
said in Kalodner I, the money with respect to which a fee was
claimed had already been distributed. See Kalodner I, 310
F.3d at 770.

In a more realistic vein, the clients assert waiver under
EAJA. Although much of the clients’ language seems to
disclaim any reliance on EAJA, see Cross-
Appellees’/Appellants’ Reply Brief at 31 (“they are not”
“seeking a fee pursuant to the EAJA”) (emphasis added); see
also Appellant’s Initial Brief at 20 (“By his Complaint and his
Motion for Preliminary Injunction, Kalodner sought a fee . . .
not pursuant to the EAJA.”) (emphasis added), the briefs also
rather obscurely reserve EAJA as a “back-up,” see Cross-
Appellees’/Appellants’ Reply Brief at 54 (“Even if it were
necessary for Kalodner to rely on the EAJA, the reliance is
solely for the purpose of obtaining a waiver of sovereign
immunity.”); Appellant’s Initial Brief at 40 (“if not already so
waived, sovereign immunity is waived by the EAJA”).
Giving the clients the benefit of the doubt, we proceed to the
EAJA analysis.

EAJA provides:

Unless expressly prohibited by statute, a court may award
reasonable fees and expenses of attorneys . . . to the
prevailing party in any civil action brought by or against
 17

the United States or any agency or any official of the
United States acting in his or her official capacity in any
court having jurisdiction of such action. The United
States shall be liable for such fees and expenses to the
same extent that any other party would be liable under the
common law or under the terms of any statute which
specifically provides for such an award.

28 U.S.C. § 2412(b) (emphasis added). (This waiver appears
quite distinct from the more familiar § 2412(d), which
contains additional qualifications. See, e.g., § 2412(d)(1)(B)
& (d)(2)(B).)

In Buckhannon Board & Care Home, Inc. v. West
Virginia Department of Health & Human Resources, 532 U.S.
598, 603-04 (2001), the Supreme Court interpreted two (non-
EAJA) statutes authorizing fee-shifting for prevailing parties,
and held that a party has not “prevailed” unless it has secured
some form of court-ordered relief. In so ruling, it rejected the
“catalyst theory,” under which a party could be found to
prevail if a defendant changed its conduct in response to a
pending law suit. Id. at 603. We have held that this
understanding of “prevailing party” applies to EAJA’s use of
the term. See Select Milk Producers, Inc. v. Johanns, 400
F.3d 939, 945 (D.C. Cir. 2005).

In Con Ed V, the clients obtained relief—but not from the
court. It came as a result of the agency’s favorable response
to their (and others’) comments in the agency proceeding,
suggesting two changes in the “volumetric” computation.
Although the complaint alluded vaguely to the method of
computation, it never framed a request for a change. The
agency accepted the theory—presumably on its merits, there
being no detectable judicial pressure to do so, much less a
 18

judgment or any other form of court-ordered relief. The
clients are therefore not prevailing parties with respect to Con
Ed V, and the funds (sought in claim 2) remain protected by
sovereign immunity.

We note that the district court mistakenly distinguished
Kalodner I, evidently believing that EAJA had not been
considered by the court nor raised by the parties in that case.
Consolidated Mem. Op. at 8-9. In fact EAJA had been raised
in Kalodner I, albeit by the government. See Brief for the
Appellees at 28-29, Kalodner I. Our omission of any
discussion was plainly because of the ample reasons why
EAJA would not have availed Kalodner, the most obvious
being that Kalodner was simply not a “party” at all.

With respect to the work in Con Ed IV, however, the
clients appear to meet the minimum qualifications for
prevailing parties (claim 1). Although the Con Ed IV court
rejected two of the three claims sought in their motion for
partial summary judgment, it did grant a declaratory judgment
that the clients were entitled “to a distribution of the entire
20% reserve, insofar as practicable.” 271 F. Supp. 2d at 112.
As the court rejected the clients’ claims with respect to the
amount to be distributed, and as it imposed neither deadlines
nor even criteria for judging practicability, this was pretty thin
gruel, as we shall see when we discuss whether the judgment
may have had enough of a causal effect to justify a common
fund fee. But it does appear to meet the minimum
requirement of constituting court-ordered relief. Insofar as
qualification as “prevailing” requires more than the raw
Buckhannon minimum, see, e.g., Farrar v. Hobby, 506 U.S.
103, 109 (1992) (requiring that plaintiffs “succeed on any
significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit”), that inquiry is
 19

here subsumed in our discussion in Part III of whether
Kalodner’s civil litigation played enough of a role in
generating the beneficiaries’ recovery to warrant a common
fund fee.

B. Kalodner’s claims against the government

We affirm the district court’s dismissal of Kalodner’s suit
on his own behalf against the government (claims 3 & 4).
Sovereign immunity applies unless waived, for the reasons
addressed above. As to any EAJA waiver, Kalodner was
counsel in Con Ed IV and Con Ed V, not a party, and EAJA
provides attorneys’ fees only for parties. See Consolidated
Mem. Op. at 6.

C. Kalodner’s claims against the beneficiaries

The beneficiaries argue that sovereign immunity also bars
Kalodner’s attempt to recover fees from them (claims 5 & 6)
by virtue of Kalodner I’s holding that sovereign immunity
applies if the government is in possession of the relevant
funds. With respect to some of the relief sought by Kalodner,
this counter-intuitive proposition is correct. He indeed asks
for “[a]n Order directing the defendants [i.e., named non-
client beneficiaries] on behalf of each of the class members to
direct the DOE to withhold the fee awarded to plaintiff [i.e.,
Kalodner].” Complaint at 18, Kalodner-Public Service (Feb.
3, 2004). Unless the requested communication to DOE were
purely precatory (“Would you be so kind as to send some of
my money to Mr. Kalodner?”), it would pose the same
sovereign immunity issues as a direct court order against the
government. But Kalodner appears independently to also ask
for an order “awarding to plaintiff [from the beneficiaries]
 20

10% of the distribution to each member of the [beneficiary]
class.” Id. Indeed in a later filing, Kalodner clarified that he
was requesting a declaratory judgment that beneficiaries have
an obligation to pay attorneys’ fees once the money is
distributed. See Plaintiff’s Motion for Summary Judgment at
1, Kalodner-Public Service (June 1, 2004); Plaintiff’s
Statement of Material Facts in Support of Plaintiff’s Motion
for Summary Judgment at 19, 38, Kalodner-Public Service
(June 1, 2004). And at oral argument, Kalodner verified that
the two requests were independent. See Oral Argument Tape
at 18:40-19:28, Kalodner-Public Service; see also Appellant’s
Initial Brief at 37-38; Appellant’s Reply Brief at 6-7.
Sovereign immunity poses no bar to Kalodner’s fee claims
against beneficiaries (claims 5 & 6).

D. ESA waiver theory

We come finally to the theory—asserted for all claims—
that Congress waived the government’s sovereign immunity
in ESA § 209. At the outset, we note that we’re puzzled by
the theory of § 209’s relevance. Kalodner and his clients
argue that because the underlying suits waived sovereign
immunity under ESA, immunity was also waived as to any
request for attorneys’ fees. But the ESA jurisdictional basis
that they asserted for their suits in Con Ed IV and Con Ed V
was § 210, not § 209. See Complaint at 3, Con Ed IV (Mar.
15, 2001); Complaint at 2-3, Con Ed V (Sep. 25, 2003).

As to the merits of the ESA § 209 theory, matters of
interpretation of EPAA and ESA generally fall under the
exclusive appellate jurisdiction of the Federal Circuit. See
ESA § 211(b)(2), amended by Pub. L. No. 102-572, 106 Stat.
4506 (1992) (providing that “[a]ppeals from orders or
 21

judgments . . . in cases or controversies arising under [the
ESA] shall be brought in the . . . Federal Circuit”); 28 U.S.C.
§ 1295(a) (providing that the “Federal Circuit shall have
exclusive jurisdiction . . . of an appeal under section 211 of
the [ESA]”); Consolidated Edison Co. of New York v.
Abraham, 303 F.3d 1310, 1313-16 (Fed. Cir. 2002);
Consolidated Edison Co. of New York v. Ashcroft, 286 F.3d
600, 602-05 (D.C. Cir. 2002); Con Ed II, 117 F.3d at 541-42;
Texas American Oil Corp. v. United States Department of
Energy, 44 F.3d 1557, 1563 (Fed. Cir. 1995). For all claims
before us, the Federal Circuit has deferred parallel appeals to
await our decisions. See supra notes 2-4. In determining the
scope of the Federal Circuit’s exclusive jurisdiction, we not
surprisingly follow that circuit’s two-fold criteria: “First,
resolution of the litigation must require application or
interpretation of the ESA or regulations issued thereunder;
and second, the ESA issue must have been adjudicated in the
district court.” Consolidated Edison Co. of New York v.
Ashcroft, 286 F.3d 600, 603 (D.C. Cir. 2002) (citing Texas
American Oil Corp., 44 F.3d at 1563).

In the end it seems quite likely that no claim will meet the
first criterion. The three claims based on the work in
Con Ed V (claims 2, 4 & 6) cannot win regardless of any ESA
waiver; as we discuss in Part III, the absence of causation is
fatal. The claims based on litigation in Con Ed IV (claims 1, 3
& 5) may well also be finally resolved without regard to the
ESA. If on remand the district court finds that the Con Ed IV
litigation had insufficient causal effect, that is the end of the
matter. None of these fee claims could succeed. Even if the
court finds causation, Kalodner’s claim against the
government may be unavailing because any further fee
recovery for work on Con Ed IV would duplicate his recovery
against the beneficiaries and the clients’ recovery against the
 22

government. The same is also true for the special type of
relief in Kalodner’s claim against the beneficiaries that we
found barred by sovereign immunity, namely the demand for
an order directing them to direct DOE to pay a portion of their
entitlements to Kalodner. While there may be scenarios under
which the application of preclusion would give a potentially
broad ESA waiver significance, it is premature to evaluate
such possibilities at this stage.

In closing, we note that the clients try to make something
of our statement in Kalodner I that “Congress has waived
sovereign immunity for Subpart V claimants.” 310 F.3d at
770. See Motion for Award of a Common Fund Fee at 24,
Con Ed V (July 12, 2004). But the sentence does them no
good. Our sole concern in that passage was to rebut
Kalodner’s claim under ESA § 210, and doing so required us
only to observe that Kalodner was not a “Subpart V claimant,”
310 F.3d at 770; he was their lawyer.

To recap, sovereign immunity bars Kalodner’s claims
against the government (claims 3 & 4) and the clients’ claim
against the government for Con Ed V (claim 2). Three claims
survive: Kalodner’s claims against beneficiaries (claims 5 &
6) and the clients’ claim against the government for Con Ed
IV (claim 1).

II. Preclusion

Before considering the merits of the surviving common
fund claims (Kalodner against the beneficiaries for both cases,
and the clients against the government for Con Ed IV), we
must note the issue of possible preclusion from the district
court’s December 4, 2003 rejection of the clients’ claims for a
 23

fee for the work in Con Ed IV and that decision’s later
affirmance by the Federal Circuit.

A. Kalodner’s claims against the beneficiaries

In its December 4, 2003 fee decision in Con Ed IV, the
district court dismissed the clients’ motion to join refund
beneficiaries. They appealed to the Federal Circuit, which
denied the appeal by order. The refund beneficiaries argue
that the dismissal (and loss of the appeal) should preclude
Kalodner’s fee claim against beneficiaries for Con Ed IV’s
declaratory judgment (claim 5). Leaping over the issue of
whether Kalodner should be bound by his clients’ loss, we
address the nature of the district court’s order of dismissal, a
more obvious obstacle to the beneficiaries’ theory. The order
appears not to have been based on the merits or on any other
substantive theory. The court said simply that “joinder of
[beneficiaries] at this stage of the litigation and for this
purpose would be inappropriate, particularly given the Court’s
ruling on the previous motion [denying a fee claim against the
government on sovereign immunity grounds].” Dec. 4, 2003
Order at 3. Sovereign immunity, of course, would be no bar
to a claim directed to the beneficiaries, so the court’s entire
substantive discussion would have been, as to them, beside the
point. Indeed, the court seemed affirmatively to contemplate
the clients’ future pursuit of fees, suggesting that “[a] more
suitable option would be . . . to initiate a separate lawsuit
against applicable claimants . . . once [the government]
distribute[s] the monies from the 20% reserve.” Id. As the
court was evidently ruling only that the clients’ fee claim
against beneficiaries should be addressed in some other
context, it clearly did not resolve the issue before us—the
 24

merits of that claim (or Kalodner’s). See Yamaha Corp. of
America v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992).

We do not understand the beneficiaries to be arguing
claim preclusion—really a rule against claim splitting. See,
e.g., Gener-Villar v. Adcom Group, Inc., 417 F.3d 201, 205
(1st Cir. 2005) (noting that claim preclusion “generally binds
parties from litigating or relitigating any [claim] that was or
could have been litigated in a prior adjudication and prevents
claim splitting”) (internal quotation omitted, brackets in
original). The case is unusual in that the district court created
the split by declining to reach the merits of the claim against
the beneficiaries. But there might be an argument that the
claims against the government and against the beneficiaries
were properly viewed as a single claim, so that the clients’
failure to get that aspect of the district court’s judgment
reversed would bind the claimants (and even Kalodner, if the
beneficiaries’ theory of privity is correct). We express no
opinion on such a theory.

The beneficiaries also make a distinctly confusing
argument that certain of the decisions under review here bar
Kalodner’s claims against them by virtue of issue preclusion.
In one respect the claim has merit, though the beneficiaries’
labeling is wrong. In so far as they argue that Kalodner
cannot double dip, recovering both through his clients and/or
against the government, and independently against
themselves, the beneficiaries are right, as Kalodner
forthrightly conceded at oral argument. See Oral Argument
Tape at 0:37-1:12 (in appeal No. 05-5089). That is not a
matter of issue preclusion, but of double recovery. See, e.g.,
Commissioners Court of Medina County v. United States, 719
F.2d 1179, 1182 n.6 (D.C. Cir. 1983). So far as issue
preclusion is concerned, the dispositive issue in the one case
 25

not on review before us (i.e., the December 4, 2003 decision
and the failed appeal) related to sovereign immunity, which
provides the beneficiaries no defense. Thus, issue preclusion
cannot bar Kalodner’s claims against the beneficiaries (claims
5 & 6).

B. Kalodner’s clients’ claim against the government

With respect to the clients’ surviving fee claim against
the government (claim 1), DOE’s brief proclaimed it
unnecessary to delve into the preclusive effect of the
December 4, 2003 Order, instead relying on sovereign
immunity alone. This tactical choice is especially perplexing
because the district court invoked preclusion in finding in the
government’s favor as to Con Ed IV. As to those fees, we’ve
just ruled, the clients formally qualify as “prevailing parties”
under EAJA’s waiver provision. As the government failed to
brief the preclusion issue for fee claims against it, and as we
are remanding the issue, for prudential reasons we do not
address it here. We note for the benefit of the parties and the
district court, however, that because interests of judicial
economy are at stake in preclusion doctrines, courts retain the
power to consider such doctrines sua sponte. See Stanton v.
District of Columbia Court of Appeals, 127 F.3d 72, 77 (D.C.
Cir. 1997).

III. Common Fund Causation

Our circuit law permits “a party who creates, preserves,
or increases the value of a fund in which others have an
ownership interest to be reimbursed from that fund for
litigation expenses incurred.” Swedish Hospital, 1 F.3d at
1265 (emphasis added). All three variants express the
 26

necessity that the claiming parties’ litigation have played a
causal role in achieving the benefits for which they seek fee
reimbursement. Similarly, the Supreme Court has demanded
that “[t]he benefits could be traced with some accuracy.”
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S.
240, 265 n.39 (1975). See also In re Holocaust Victim Assets
Litigation, 424 F.3d 150, 157 (2d Cir. 2005) (“The actions of
the party seeking to recover costs must . . . be a substantial
cause of the benefit obtained.”) (citation and internal
quotation omitted); Knight v. United States, 982 F.2d 1573,
1579-80 (Fed. Cir. 1993) (describing typical cases to involve
third party beneficiaries of enhancement or preservation of
assets or trust); Vincent v. Hughes Air West, 557 F.2d 759,
771 n.10 (9th Cir. 1977) (“[T]he common fund doctrine
requires that the work of the attorney seeking an extra fee be a
cause-in-fact of any claimed benefit to the fund and its
beneficiaries.”); see generally FEDERAL JUDICIAL CENTER,
AWARDING ATTORNEYS’ FEES AND MANAGING FEE
LITIGATION 62-64 (2005) (“the plaintiff must . . . establish that
its suit was a ‘but for’ cause of the fund (or at least ensured
access to the fund).”).

The question hence becomes whether Kalodner and the
clients have pleaded facts supporting an inference of the
requisite causation on the three potentially viable claims
(claims 1, 5 & 6). We remand the two claims that ride on the
alleged success in Con Ed IV so as to give the fee claimants a
chance to make their case (claims 1 & 5). As to Kalodner’s
claim against the beneficiaries based on Con Ed V (claim 6,
the only claim based on Con Ed V not already found barred by
sovereign immunity), the record shows the absence of
causation as a matter of law.
 27

A. The declaratory judgment in Con Ed IV

Kalodner argues that Con Ed IV’s declaratory judgment
created or preserved the fund by requiring the government to
distribute the previously undistributed portion of the private
parties’ 20% of collections set aside pursuant to the Stripper
Well settlement, overcoming DOE’s alleged reservation of a
right not to do so. Yet DOE’s expression of a reservation
does not mean in itself that Con Ed IV was a cause (much less
a substantial cause) of the final distribution. Reluctance is not
refusal. We find the record inconclusive.

We note a few basic points at the outset. First, the
decision to grant private crude oil purchasers 20% of certain
overcharge collections dates back to the 1986 settlement. See
Stripper Well, 653 F. Supp. at 114 (noting that DOE “will . . .
establish an initial reserve for [private beneficiaries not party
to the settlement agreement] amounting to twenty percent of
the funds received by the DOE”); Statement of Modified
Restitutionary Policy in Crude Oil Cases, 51 Fed. Reg.
27,899, 27,900 (Aug. 4, 1986) (providing that “OHA will
establish an initial reserve fund for these claims of twenty
percent” of crude oil overcharges). Although DOE
undoubtedly hemmed and hawed a good deal on the follow-
through, Kalodner and his clients have never pointed to any
statement indicating an affirmative intent to renege on the
planned distribution of the 20% reserve.

Second, although some of the language in the Con Ed IV
decision seems directed to getting DOE moving, there is no
claim that Kalodner’s civil litigation helped the beneficiaries
by accelerating pay-out. Nor does it appear that there could
be. First, it will be recalled that the Con Ed IV expressly
declined to impose any deadline. More pertinently, interest
 28

has been accruing on the funds (evidently from the outset, and
certainly during the period relevant to Kalodner’s litigation
activities in Con Ed IV and Con Ed V), see, e.g., Citronelle-
Mobile Gathering, Inc. v. Edwards, 669 F.2d 717, 723 (Temp.
Emer. Ct. App. 1982) (noting “that the Government has a duty
to try to ascertain those overcharged, and refund them, with
interest, from the restitution funds”) (second emphasis added);
Final Procedures, 69 Fed. Reg. at 29,301 (noting that
“interest will continue to accrue . . . until the refund process is
completed”), so the beneficiaries have been and are being held
harmless from the effects of delay.

Third, the government and beneficiaries assert that the
court should not award a common fund fee because it was
DOE’s own pursuit of the overcharging crude oil sellers that
led to the accumulation of the funds to be distributed. This is,
of course, true, but in significant part it misses the point. It
may come as a surprise to counsel, but in all lawsuits
producing only money judgments or fund pay-outs, it is not
counsel who have created the wealth to be distributed.
Mandatory payments do not create wealth (except indirectly,
in so far as they enforce rules that provide incentives for
wealth-creating behavior); they simply redistribute it. This is
true whether the funds distributed originate with taxpayers or,
as here, with sellers of crude oil and the government’s refund
mavens. But the common fund theory provides a potential
basis for payment nonetheless; to the extent that the litigation
secured for the beneficiaries sums that otherwise would have
flowed to other parties or would have been retained by the
government, a common fund fee would be in order. See, e.g.,
United States v. American Society of Composers, Authors and
Publishers, 466 F.2d 917 (2d Cir. 1972).
 29

Fourth, Kalodner and the clients mistakenly argue that the
district court made a factual finding of causation deserving of
deference. Such a finding would of course be surprising,
given the court’s dismissal of the claims with respect to Con
Ed IV on preclusion grounds. Kalodner points to the district
court’s statement that Con Ed V “insured the implementation
of the Court’s declaratory judgment in Con Ed IV that DOE
should disburse approximately $275 million in funds.”
Consolidated Mem. Op. at 10. But this adds up to very little.
The language appears more aimed at describing the effect of
Con Ed V (which we address below) on ensuring the
implementation of the prior declaratory judgment than the
effect of the declaratory judgment itself. And the district
court’s opinion in Con Ed IV seems in fact (1) to have
recognized that its word was by no means the last and (2) to
have believed that the government’s primary concern was to
be assured that all refund claims should be properly resolved.
See 271 F. Supp. 2d at 110 (noting that “OHA has advised
plaintiffs that it will not be in a position to determine whether
any further direct payments to plaintiffs is [sic] warranted
until all remaining refund claims are processed”) (internal
quotation omitted). Worst for the argument advanced by
Kalodner and his clients is that this language runs straight into
the earlier order dismissing Con Ed V as moot and saying that
the court “decline[d] [plaintiffs’] invitation to declare them
‘victor’ just because the contemporaneous administrative
process adopted many of their distribution criteria.” Mem.
Op. at 2-3, Con Ed V (June 30, 2004). And the court’s
statement that “Kalodner was successful in two adverse civil
suits against DOE,” Consolidated Mem. Op. at 5, fails to
make a finding as to any substantive consequence of
Kalodner’s “success.” While formal success may be
minimally sufficient to qualify Kalodner’s clients as
prevailing parties under Buckhannon, see 532 U.S. at 604, it
 30

doesn’t establish common fund causation. And the district
court simply did not come close to making such a factual
finding.

We now turn to the main substantive question of what
DOE was likely to have done independent of the litigation. Its
communications leave us uncertain how to classify its intent,
as between serious contemplation of an ultimate decision not
to make the roughly $280 million final distribution and merely
a plan to go slow in light of continuing uncertainties. OHA
said, for instance, in reply to one of Kalodner’s letters
requesting distribution (amid many calling for distribution and
also asserting various computational claims), that it “should
continue to devote all available resources to the completion of
pending original and supplemental applications, before
addressing the issue of whether to make a final payment to
applicants that have already received refunds [among them,
Kalodner’s clients].” Letter from George B. Breznay,
Director, OHA, to Philip P. Kalodner (July 11, 2000) (filed as
Exhibit D of Plaintiffs’ Motion for Partial Summary
Judgment, Con Ed IV (Sep. 4, 2001)). Though the “whether”
suggests uncertainty about making any final payment to
parties situated as were Kalodner’s clients (and, evidently, the
beneficiaries here), the letter also appears to reflect a
straightforward matter of priorities—putting work on pending
applications first.

Indeed, it isn’t altogether clear that even the clients saw
OHA’s position as seriously considering non-payment. Like
many communications to the agency, the Con Ed IV
complaint seems driven more by plaintiffs’ unsuccessful
efforts to get beyond the 20% limitation. Thus the complaint
asserted that “Defendant Breznay continues (in decisions
issued with regard to claimants being approved for refunds) to
 31

refuse to commit DOE to any distribution . . . he has indicated
that any such subsequent distribution will in any event be
limited by employing in all distributions only 20% of the
funds.” Complaint at 11, Con Ed IV (Mar. 15, 2001).

On the fee claimants’ side we note that the outstanding
potential claims against the fund seem modest in relation to
the sums available. In other words, there was no risk that the
remaining money in the 20% reserve would be fully or even
largely depleted; the lack of money doesn’t seem to have
warranted a determination as to “whether any further direct
payments . . . [are] warranted.” In the government’s motion to
dismiss, it described “several hundred refund cases pending”
and then noted pending litigation that seemed to put at risk
about $11.5 million (DOE noted four pending cases,
indicating the amounts at stake in each of three suits, namely
$930,063, $3,591,485, and $6,977,635). See Defendants’
Memorandum of Points and Authorities in Support of Their
Motion to Dismiss or in the Alternative for Summary
Judgment at 15 & n.4, Con Ed IV (Aug. 1, 2001). In addition,
there seem to have been about $1 million outstanding in small
claims. See 271 F. Supp. 2d at 107, 106 & n.7, 111 n.7.

Other statements of the government also seem to reflect
an idea that plaintiffs may have been due no more than what
they had already received. At one point, for instance, DOE
made a rather sweeping statement implying that it thought that
a final distribution was entirely discretionary:

[T]he fact that OHA has determined that plaintiffs were
eligible to receive an initial distribution does not compel
the conclusion that an additional payment is now
required. Plaintiffs point to nothing in the record to
support such a contention or to show that the funds
 32

already paid [to] plaintiffs may not be sufficient to
compensate them for any actual injuries suffered.

Defendants’ Reply in Support of Their Motion to Dismiss or
in the Alternative for Summary Judgment at 2-3, Con Ed IV
(Oct. 1, 2001) (emphasis added). The district court flatly
rejected this, finding that plaintiffs “are entitled to the
complete distribution of the 20% reserve funds that the DOE
created” and that “[t]he DOE cannot now suddenly change
that commitment and the implementing regulations unless and
until the 20% reserve proves to be more money than needed,
which is clearly not the case.” 271 F. Supp. 2d at 110.

But other statements cut against the fee claimants’
interpretation. DOE gave strong signs of moving
independently towards making a final distribution. For
example, DOE spoke of “a determination by DOE as to the
distribution of the more than $262 million now in escrow in
the U.S. Treasury” and that “Breznay . . . has submitted a
memorandum [in December 2001] containing his
recommendation as to such distribution to the Office of
General Counsel of DOE, the contents of which are unknown
to plaintiffs, but no action has been taken on such
recommendation by the defendant Secretary of Energy.” Joint
Memorandum of Status at 6-7, Con Ed IV (Mar. 14, 2002).
Indeed, the Joint Memorandum’s summary of DOE’s
positions seems to focus on (1) legalistic claims that plaintiffs
lack a cause of action to compel immediate distribution and
(2) computational issues on which plaintiffs ultimately lost.
Id. at 4-6. See, e.g., Letter from Philip P. Kalodner to George
B. Breznay, Director, OHA (Mar. 8, 1999) (filed as Exhibit D
of Plaintiffs’ Motion for Partial Summary Judgment, Con Ed
IV (Sep. 4, 2001)) (stating that “unless you advise me prior to
March 31, 1999 that you will recognize my clients’ immediate
 33

right to receive the balance of the $2800 per million gallons
not yet paid them . . . I will institute a mandamus action to
require OHA and DOE to make such a supplemental
distribution to my clients” and threatening to request an
“order[] to make an immediate distribution”). As the
plaintiffs in Con Ed IV loudly proclaimed, they had peppered
OHA with letters demanding attention and complaining of
OHA’s failure to reply promptly. See Plaintiffs’ Statement of
Points and Authorities in Opposition to Defendants’ Motion to
Dismiss or in the Alternative for Summary Judgment and in
Support of Plaintiffs’ Motion for Partial Summary Judgment
at 29-31, Con Ed IV (Sep. 4, 2001). Conceivably even a very
dutiful official might have come to perceive Kalodner as a
nuisance, and such a perception might have colored his
reactions and provoked a use of legalistic defenses, even if, as
a substantive matter, the government fully intended to
distribute the money in any case.

Lastly, we are unpersuaded by the fee claimants’
suggestion that DOE’s Proposed Procedures decision itself
establishes that Con Ed IV caused the final distribution. In the
summary of the order DOE said that Con Ed IV “rendered a
declaratory judgment that successful claimants are entitled to
a distribution of the entire remaining amount of crude oil
overcharges reserved for direct restitution, ‘insofar as
practicable.’ OHA will therefore make a final distribution in
the long-standing crude oil refund proceeding.” 68 Fed. Reg.
at 64,098 (emphasis added). But in this very passage DOE
refers to the amount as already “reserved for direct
restitution,” id., arguably implying that it would have been
distributed even without the declaratory judgment.

In the end, our efforts to draw an inference of causation
face major informational deficits. Notably, the record
 34

contains allusions to the December 2001 OHA memorandum
to DOE counsel proposing a disposition of the $270 million
then on hand, see Reply Memorandum in Support of Motion
for Award of Common Fund Fee at 16-17, Con Ed IV (June
12, 2003), but not the memorandum itself. Clients assert that
DOE has refused to release it. Id. The OHA memorandum
itself, of course, may not be dispositive, as the ultimate
decision may have lain with others, such as DOE counsel or
perhaps the Secretary of Energy. Given the ambiguities in
OHA’s formal public position, we are unable to reach a
conclusion about causation and we agree with the clients and
Kalodner that limited discovery may be useful to bring OHA’s
position to light and thus afford them an adequate opportunity
to establish that DOE would not have paid out the refunds had
Con Ed IV never been brought.

B. The volumetric adjustment of Con Ed V

While sovereign immunity bars the clients’ claim to a fee
for the legal efforts involved in Con Ed V (for want of court-
ordered relief), that doctrine has no effect on Kalodner’s claim
against the beneficiaries based on that case (claim 6). We
thus must assess whether those efforts increased the common
fund by certain adjustments in the “volumetric” amount, or
simply “volumetric,” used to calculate refunds. The
“volumetric” amount represents the total dollar amount
remaining in the reserve (the numerator) divided by the total
number of gallons purchased by all eligible claimants (the
denominator). See Proposed Procedures, 68 Fed. Reg at
64,100. Each claimant would then receive a refund of the
volumetric times the number of gallons purchased by that
claimant (effectively a weighted average of the reserve).
Kalodner claims that Con Ed V increased the common fund
 35

via two adjustments of the volumetric adopted in the Final
Procedures. First, the Final Procedures included $9.5 million
in escrow in the “Citronelle” account in the numerator,
thereby increasing the total payout to all beneficiaries; the
Proposed Procedures hadn’t mentioned this one way or the
other.

Second, the Final Procedures deferred calculation until
verification of all claims (other than time-barred ones) was
complete, thus excluding ineligible claims from the
denominator (and thereby increasing the pay-out). Claims
might ultimately be found ineligible for a number of reasons,
including: (a) forfeiture by large refund recipients of future
claims due to failure to request supplement refunds, (b) failure
by small refund recipients to apply for a final distribution due
in large part because no notice would be provided, (c) a
finding that claimants are unqualified successors-in-interest,
or (d) reduction of a prior award. See Philip P. Kalodner,
Comments of Utilities, Transporters and Manufacturers at 7-
13 (Jan. 8, 2004); Douglas B. Mitchell, Comments Regarding
the Proposed Procedures for Distribution of Remaining Crude
Oil Overchange [sic] Refunds at 3 (Jan. 12, 2004). Here the
difference between the Proposed and the Final Procedures
appears sharper than for the Citronelle account, as the
Proposed Procedures seemed to include such claims in the
denominator, whereas Kalodner’s and Mitchell’s proposed use
of the (already planned) 180-day notice period could be
expected to weed out the ineligibles.

Kalodner claims that the two adjustments increased the
common fund by $35 million. As both the Proposed and the
Final Procedures made this round of distributions truly final,
allocating any leftover sums to state and federal governments,
see Proposed Procedures, 68 Fed. Reg. at 64,100; Final
 36

Procedures, 69 Fed. Reg. at 29,301-02, the adjustments came
at the expense of those governments. (It appears that
Kalodner is including interest payments. These of course did
increase the gross sum paid out—but only by an amount
needed to compensate recipients for the delay that Kalodner
himself sought.)

The district court attributed this $35 million increase to
Kalodner’s litigating efforts in Con Ed V and awarded a fee
calculated as 30% of that supposed increase. We find nothing
in the record supporting the idea that Con Ed V played any
such role.

The fact that the Con Ed V suit was dismissed for
mootness is not in itself dispositive. It is true that common
fund cases typically hinge on some form of court-ordered
relief. See, e.g., Mills v. Electric Auto-Lite Co., 396 U.S. 375,
393-94 (1970); National Treasury Employees Union v. Nixon,
521 F.2d 317, 320-21 (D.C. Cir. 1975); see generally ALBA
CONTE, I ATTORNEY FEE AWARDS § 2.1 at 41 (3d ed. 2005)
(noting that “the unarticulated threshold requirement for
application of the common-benefit doctrine is that the
claimant must enjoy some form of success on the merits of the
litigation”). But in this area some version of the catalyst
theory applies, illustrated by decisions awarding common
fund fees even where the claimants’ action was dismissed as
moot. In Koppel v. Wien, 743 F.2d 129 (2d Cir. 1984), for
instance, the Second Circuit reversed the district court’s denial
of a common fund fee where the defendants, after the suit was
filed, had voluntarily abandoned the project plaintiffs had
sued to enjoin. Id. at 131-32, 135. See also Savoie v.
Merchants Bank, 84 F.3d 52, 56-57 (2d Cir. 1996). Although
in Koppel and Savoie the Second Circuit held that where a
case is mooted the burden shifts to defendants to prove the
 37

absence of causation, see 743 F.2d at 135; 84 F.3d at 57, in
both cases the record appeared to offer no plausible
explanation for the defendants’ action other than the lawsuit
itself. In contrast, the Con Ed V litigation occurred in parallel
with an entirely separate administrative proceeding conducted
by DOE, in which Kalodner and others participated actively.
As the district court said in finding the Con Ed V suit moot,
“[t]he appropriate venue for consideration of the plaintiffs’
proposed distribution methodology was the administrative
comment process, which they successfully utilized.” Mem.
Op. at 3, Con Ed V (June 30, 2004). Kalodner doesn’t even
appear to claim that his persuasive efforts before DOE,
independent of some supposed judicial pressure induced by
his civil litigation, could entitle him to fees. That implied
concession appears in full accord with the law. See Knight,
982 F.2d at 1576, 1581 (denying common fund fee for results
of administrative action taken before any court order or indeed
any filing of suit).

Of the two changes supposedly wrought by Con Ed V, we
consider first the idea of deferring the calculation until the end
of a 180-day period (already provided for in the Proposed
Procedures), so as to exclude unresolved claims from the
denominator of the fraction governing the beneficiaries’
entitlements. The complaint in Con Ed V never requests any
such deferral. It merely requests “an Order directing the
defendants to distribute to plaintiffs and the members of the
class an amount per million gallons of qualified product
purchases determined pursuant to the formula set forth in
paragraph 33 [of the complaint], some $650 to more than
$700 per million gallons.” The $650-700 per million gallons
is close to the range that DOE itself proposed in its Proposed
Procedures. See 68 Fed. Reg. at 64,100 (proposing
volumetric amount of $670 per million gallons). Given the
 38

numbers in the complaint, we are baffled by Kalodner’s
assertion on brief that Con Ed V increased the amount from
$670 to $750-800 per million gallons.

Worse for Kalodner, the complaint appears to demand a
denominator consisting of “the sum of the volume of
purchases by applicant end user claimants already found
qualified for recovery and the volume of purchases by
claimants whose claims have not as yet been processed.”
Complaint at 11, Con Ed V (Sep. 25, 2003) (emphasis added).
It thus implicitly urged inclusion of those very claims for
which Kalodner, in his administrative comment, successfully
advocated exclusion. The relationship completely contradicts
Kalodner’s claims for Con Ed V.

In fact, the first time that Kalodner’s clients ever
appeared to raise the deferral issue in Con Ed V was in their
motion for summary judgment, filed with the court nearly four
months after the complaint and eight days after Kalodner filed
comments in the administrative proceeding. See Plaintiffs’
Memorandum in Opposition to Defendants’ Motion to
Dismiss and Statement of Points and Authorities in Support of
Plaintiffs’ Motion for Summary Judgment at 13-14, Con Ed V
(Jan. 16, 2004). See also Plaintiffs’ Memorandum in Reply to
Defendants’ Opposition to Plaintiffs’ Motion for Summary
Judgment at 10, Con Ed V (Mar. 18, 2004) (noting that
deferral was raised in the “Initial Memorandum,” i.e., the
motion for summary judgment, see id. at 3-4, but not noting
the complaint); Defendants’ Memorandum of Points and
Authorities in Reply to Plaintiffs’ Opposition to Defendants’
Motion to Dismiss and in Opposition to Plaintiffs’ Motion for
Summary Judgment at 2, Con Ed V (Feb. 20, 2004) (correctly
noting that “[n]one of these allegations [about deferral] are
raised in plaintiffs’ complaint in this matter which simply
 39

sought the distribution the agency has stated it will
undertake.”).

Further weakening the causal link is the fact that not only
Kalodner, but another lawyer, Douglas B. Mitchell, acting on
behalf of 104 individual claimants and two filing services,
filed a comment suggesting deferral. See Douglas B.
Mitchell, Comments Regarding the Proposed Procedures for
Distribution of Remaining Crude Oil Overchange [sic]
Refunds at 2-3 (Jan. 12, 2004) (“Mitchell Comments”)
(suggesting deferral until verification is complete, after a 180-
day last-chance notice period); see also Declaration of George
B. Breznay, Con Ed V (Feb. 9, 2005). Even where court
action is the source of the relief sought, the fact that parties
with interests in the common fund were separately represented
may militate against the award of a common fund fee. See,
e.g., United States v. Tobias, 935 F.2d 666, 668 (4th Cir.
1991); Vincent v. Hughes Air West, Inc., 557 F.2d 759, 771
(9th Cir. 1977); see generally 20 AM. JUR. 2D COSTS § 66. In
any event, as we noted earlier, Kalodner appears to concede
that triumphs at the agency level, unless shown to have been
caused by some sort of actual or realistically threatened
judicial action, give rise to no common fund entitlement.

Unlike its treatment of deferral, the complaint at least
took the same position on the $9.5 million Citronelle account
that Kalodner did in the administrative proceeding. But there
is no evidence that the Con Ed V filing caused its inclusion in
the numerator in the Final Procedures. As with deferral,
Mitchell’s comment also advocated the inclusion of the
Citronelle account. See Mitchell Comments at 2. More
important, inclusion of the Citronelle refund appears to have
already been contemplated by DOE. In its reply to the
comments, DOE expressly stated, “It is already DOE’s
 40

practice that ‘returned funds’ . . . are deposited.” 69 Fed. Reg.
at 29,301. Further, the settlement under which the Citronelle
funds were recouped (to which Kalodner was a signatory)
itself required that those funds be paid to the other crude oil
end users. See Declaration of George B. Breznay at ¶ 16
(February 9, 2005). Kalodner offers nothing other than a
conclusory assertion to contradict the reasoning behind
Breznay’s explanation of why “those funds would have been
included in the final crude oil distribution, regardless of any
comment by Mr. Kalodner.” Id. See also Brief for the
Appellees/Cross-Appellants at 33 n.6.

Lastly, we also find that there is no evidence that Con Ed
V contributed to the probability of the final distribution vel
non. It is undisputed that in a series of telephone
conversations with Kalodner from August 25 to September
22, 2003, before the September 25, 2003 filing of the
Con Ed V complaint, DOE Assistant General Counsel Skubel
indicated that OHA was proceeding with plans for a final
distribution. Nonetheless, Kalodner’s clients proceeded to file
their complaint. Moreover, that filing occurred only some 20
weeks after Con Ed IV’s declaratory judgment, which itself
specifically left timing to OHA’s discretion. See 271 F. Supp.
2d at 111. The timing and circumstances suggest that Con Ed
V did nothing more than exhibit once again Kalodner’s
trigger-happiness (and perhaps that of his clients).
Notwithstanding the district court’s language, there is simply
no evidence in the record that Con Ed V in any way “caused”
the distribution itself.
 41

* * *

To recap by reference to the claims as enumerated in
Table 1: the December 4, 2003 order may preclude the
clients’ fee claim against the government for Con Ed IV
(claim 1). If not, the claim turns on the causal effect (if any)
of Con Ed IV. The clients’ claim against the government for
Con Ed V (claim 2) and each of the claims by Kalodner
against the government (claims 3 & 4) are barred by sovereign
immunity. Lastly, Kalodner’s claim against the beneficiaries
for Con Ed IV (claim 5), if not precluded, turns on the causal
effect of Con Ed IV, while that for Con Ed V (claim 6) fails
for lack of causation.

We repeat that on remand the preclusion arguments are
not themselves precluded. To the extent that claims (not
already defeated by sovereign immunity) survive any
reconsideration of preclusion, the court should conduct a
limited hearing or discovery for purposes of determining the
causal effect of Con Ed IV. See Copeland v. Marshall, 641
F.2d 880, 905 n.57 (D.C. Cir. 1980).

If Kalodner or the clients get past the basic causation
hurdle, fee computation may be quite complex. In
Democratic Central Committee of D.C. v. WMATC, 38 F.3d
603, 606 (D.C. Cir. 1994), we noted that payment should be
allowed “only as a reasonable proportion of the amount
actually collected . . . for which petitioners’ attorneys were
responsible,” i.e., proportional to the degree to which the civil
litigation enhanced the probability of pay-out to the
beneficiaries in question and the amount distributed.
Presumably the aim should be to assure that Kalodner’s total
recovery would approximate what a single claimant to the
common fund would have negotiated with him absent the
 42

transactions costs due to free-rider temptations and sheer
numbers. Thus, if the probable effect of the litigation was to
raise the chances of recovery from, say, 95% to 100%, we
suppose that this relationship would be reflected in the fee.
We note also that Kalodner originally sought a 5% common
fund fee in Con Ed IV, whereas he asks for 10% here.
Compare Motion for Award of Common Fund Fee at 3, Con
Ed IV (May 23, 2003) (requesting “5% of the amount to be
distributed to all claimants”); with Motion of Award of
Common Fund Fee at 1, Con Ed V (July 12, 2004) (requesting
10% fee); Complaint at 2, Kalodner-Abraham (Jan. 7, 2005)
(requesting 10% fee); First Amended Complaint at 18,
Kalodner-Public Service (Mar. 8, 2004) (requesting 10% fee).
If the 5% represents Kalodner’s own theory of the marginal
value of his contribution in Con Ed IV, whereas the 10%
request here represents his guess for efforts both in Con Ed IV
and Con Ed V, then our denial of his fee request in Con Ed V
would have implications for Kalodner’s maximum claim.

We affirm the dismissal of Kalodner’s claims against the
government for his efforts in both Con Ed IV and Con Ed V
and of his claim against the beneficiaries for his work in
Con Ed V (claims 3, 4 & 6). We reverse the grant of the
clients’ claim against the government relating to Con Ed V
(claim 2). This leaves two claims— the clients’ claim against
the government, and Kalodner’s claim against the
beneficiaries—both for Kalodner’s efforts in Con Ed IV
(claims 1 & 5). As to these, we reverse the judgments
denying recovery and remand for further proceedings
consistent with this opinion.

So ordered.