Opal Harger v. Department of Labor

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.” Foulds had brought an administrative petition before the Department of Labor (“DOL”) and the National Institute for Occupational Safety and Health (“NIOSH”) on behalf of several individuals (of a purported class of roughly 400). Foulds sought respective $150,000 lump sum payments under the Energy Employees Occupational Illness Compensation Program Act, 42 U.S.C. §§ 7384 -7385s-15, which entitles certain Department of Energy (“DOE”) workers to compensation for illnesses suffered due to their exposure to radiation and other toxic substances while working at DOE facilities. NIOSH denied the administrative petition and Foulds subsequently filed a petition for review in the district court. While the district court action was pending, the government vacated the denials of the administrative claims and subsequently authorized the award of benefits to qualifying claimants. Before the dispersal of the funds, Foulds filed the motions at issue seeking to collect a percentage fee from each lump sum…