Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
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,
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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 TV
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,
In the same opinion the court also rejected the
clients
’ claims against the government with respect to
Con Ed TV
(claims i & 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 TV
(Dec. 4, 2003) (the “Dec. 4, 2003 Order”),
aff'd, Consolidated Edison Co. of New York v. Abraham,
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 & 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,
4s * * * *
The history preceding these cases is a long and tortured one, recounted in bits and pieces elsewhere. See
Kalodner v. Abraham,
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 multidistrict litigation,
In re Department of Energy Stripper Well Exemption Litigation,
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
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. 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.”
As noted above, the decision under review denying Kalodner’s clients’ request for a fee based on
Con Ed TV
is the second district court decision to do so. The clients initially moved for fees in
Con Ed TV
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 TV
(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 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,
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
j}: ‡ ❖
We review the several dispositions de novo. This is obvious for the outright dismissals of claims, see, e.g.,
Masonry Masters v. Nelson,
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 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,
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
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,
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.”
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,
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 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,
, 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 judgment or any other form of court-ordered relief. The clients are therefore not prevailing parties with respect to
Con Ed V,
and the
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 TV,
however, the clients appear to meet the minimum qualifications for prevailing parties (claim 1). Although the
Con Ed TV
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.”
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 TV 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] 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 mon
D. ESA ivaiver 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 TV and Con Ed V was § 210, not § 209. See Complaint at 3, Con Ed TV (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 “[ajppeals from orders or 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,
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 TV
(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
mitigation 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 TV
would duplicate his recovery against the beneficiaries and the clients’ recovery against the 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
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.”
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 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 merits of that claim (or Kalodner’s). See
Yamaha Corp. of America v. United States,
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.,
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,
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,
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,
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.
A. The declaratory judgment in Con Ed IV
Kalodner argues that Con Ed TV’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,
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 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,
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 TV 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 TV
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
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
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 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
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 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.”
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 longstanding 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 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 TV
(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
B. The volumetric adjustment of Con EdV
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 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 suceessors-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,
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 dis-
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 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
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 “[njone of these allegations [about deferral] are raised in plaintiffs’ complaint in this matter which simply 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,
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 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
* * * * *
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 TV (claim 1). If not, the claim turns on the causal effect (if any) of Con Ed TV. 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 TV (claim 5), if not precluded, turns on the causal effect of Con Ed TV, 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,
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,
So ordered.
Notes
. 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.
. 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).
. 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).
. 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).