True the Vote, Inc. v. Internal Revenue Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2026 Decided April 10, 2026
No. 25-5219
TRUE THE VOTE, INC.,
APPELLEE
v.
INTERNAL REVENUE SERVICE, ET AL.,
APPELLEES
BOPP LAW FIRM, PC,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00734)
James Bopp Jr. argued the cause for appellant. With him
on the briefs was Jeffrey P. Gallant.
Michael J. Lockerby argued the cause for appellees. With
him on the brief was Kaylan Phillips. Geoffrey Klimas,
Attorney, U.S. Department of Justice, and Syed M. Reza
entered appearances.

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Before: PILLARD and WALKER, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: Over the years, several firms
have represented True the Vote in a lawsuit against the IRS.
After the claims were resolved, the district court awarded
attorney’s fees to True the Vote. Each firm staked its claim
over the award. Bopp Law Firm, the most recent firm to
represent True the Vote, filed a motion to enforce its charging
lien. The district court denied the motion.
We vacate the judgment of the district court and remand
for proceedings consistent with this decision.
I. Background
From 2013 to 2017, Foley & Lardner, the Public Interest
Legal Foundation, and the Center for Constitutional
Jurisprudence (collectively, the “Former Attorneys”)
represented a non-profit named True the Vote, Inc., in its suit
against the Internal Revenue Service. Then, in 2017, True the
Vote switched attorneys. The Former Attorneys were out, and
the Bopp Law Firm was in. Roughly a year later, the district
court issued a consent order resolving the claims. See JA 1;
ECF No. 150. More than another year later, the district court
awarded attorney’s fees to True the Vote pursuant to the Equal
Access to Justice Act (EAJA). According to the court’s EAJA
calculation of hours times hourly rate, True the Vote is entitled
to almost $789,000 in fees. True the Vote, Inc. v. IRS, 2023 WL
6164045, at *3 (D.D.C. Aug. 15, 2023).
That raised a question — what percentage of the fee award
should each group of attorneys receive? Based on the

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submissions in support of the EAJA award, the Former
Attorneys claim they are entitled to almost $640,000, and Bopp
to $150,018.98. Id. (ordering supplemental briefing
addressing the amount of attorney’s fees owed); ECF No. 246
at 4 (Former Attorneys’ response); Appellees’ Br. 5. Bopp
claims, based on its own billing records and fee agreement with
True the Vote, that it is entitled to more than $500,000. ECF
No. 247 at 5 (Bopp’s response).
If none of the attorneys have a lien on the fee award, then
True the Vote, the Former Attorneys, and Bopp would resolve
this question out of court or in a separate lawsuit. But both the
Former Attorneys and Bopp claim they have an equitable
charging lien that requires the court to pay them the fees they
seek directly out of the fee award, without the money first
going to True the Vote. If the Former Attorneys and Bopp
each have a lien, then the district court would need to determine
whose lien has priority, how much that side is entitled to, and
whether the other side is entitled to the rest.
The district court determined that the Former Attorneys
have a valid charging lien, see True the Vote, Inc. v. IRS, 2023
WL 6164045, at *3, but it denied Bopp’s motion for
enforcement of its own lien. JA 71. It first determined that
the question of whether Bopp has a valid charging lien must be
decided under the law of Indiana, Bopp’s home state, according
to the contractual choice-of-law provision in Bopp’s fee
agreement with True the Vote. Under Indiana law, the court
reasoned, Bopp must show that “there was some agreement,
express or implied, that the attorney’s compensation would
come from that fund, rather than from the client’s personal
obligation to pay the attorney.” JA 67. The district court
held that Bopp did not have such an agreement with True the
Vote, so Bopp did not have a lien.

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Bopp appealed.
On appeal, the parties agree that the validity of Bopp’s
charging lien depends on Indiana law. At common law, an
attorney’s charging lien was “a claim to the equitable
interference by the court” to hold any judgment “obtained for
a client by” that attorney as security for payment of the
attorney’s fee. Lyman v. Campbell, 182 F.2d 700, 702 (D.C.
Cir. 1950) (cleaned up); see State ex rel. Shannon v. Hendricks
Cir. Ct., 183 N.E.2d 331, 333 (Ind. 1962). Like other
exercises of equitable discretion, we review the district court’s
denial of Bopp’s charging lien for abuse of discretion, see
Massachusetts v. Microsoft Corp., 373 F.3d 1199, 1207 (D.C.
Cir. 2004), accepting its findings of fact unless they are clearly
erroneous, see id., and reviewing de novo its construction of
Indiana state law, see Salve Regina College v. Russell, 499 U.S.
225, 231 (1991).
II. Analysis
The Indiana Supreme Court set forth the framework for
equitable charging liens in Koons v. Beach (Koons II):
One test of this claim, as originally shown, is this:
Was the fund secured by the client through the efforts
of the attorneys? And another is, was the
compensation of the attorney, expressly or by
implication, such a charge against the fund as to
amount to an assignment of some part thereof? In
either event equity will aid the attorney in the
enforcement of his claim, ordinarily called a “lien.”
46 N.E. 587, 587 (Ind. 1897) (emphases added).

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That Court has explained that the first type of equitable
charging lien stems from the principle that, when an attorney’s
services “have . . . created the fund,” “he ought in good
conscience to be protected” via “a lien for his costs upon” that
fund. Koons v. Beach (Koons I), 45 N.E. 601, 602 (Ind. 1896)
(quotation marks omitted). The second type of such lien
recognizes that an agreement between the parties — implied or
express — can effectuate an “equitable assignment” of the
fund to the attorney. Id. at 603 (quotation marks omitted); see
Koons II, 46 N.E. at 587 (stating that, where “there was an
agreement upon a designated sum, to be paid from the amount
recovered,” it may be “more accurate” to describe the lien as
an “equitable assignment”). A prominent treatise on liens,
which Koons II cites with approval, see 46 N.E. at 587,
confirms that distinction. See 1 Leonard A. Jones, A Treatise
on the Law of Liens: Common Law, Statutory, Equitable and
Maritime §§ 43-44, 153-58 (Boston & N.Y., Houghton, Mifflin
& Co. 1888). While other jurisdictions appear to have
combined those distinct types under a single test for
establishing an attorney’s lien, see JA 68-69 (citing cases), no
cases cited by the parties suggest that Indiana has done so.
Therefore, to establish an equitable charging lien on a fund
awarded to an attorney’s client by a court, Indiana law requires
either (1) a showing that an attorney secured the client’s fund
or (2) a showing that the client agreed to pay the attorney from
that fund. “In either event,” the attorney has an equitable
charging lien. Koons II, 46 N.E. at 587.
The appellees have identified no decision by the Indiana
Supreme Court changing the long-ago established framework
announced in Koons II. They rely on Hammond, W. & E.C.
Railway, Co. v. Kaput, 110 N.E. 109, 111 (Ind. Ct. App. 1915),
and Blankenbaker v. Bank of Commerce, 85 Ind. 459, 461-462
(Ind. 1882). But Hammond was decided by an intermediate

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appellate court inferior to the Indiana Supreme Court, so
Hammond could not have overruled either Koons case. Nor
could Blankenbaker because it preceded even Koons I. A
state’s highest court can overrule its prior decisions, so (unlike
in a conflict between two D.C. Circuit panel decisions) the last-
in-time decision controls when two of its decisions conflict.
The district court erred by requiring Bopp to satisfy both
parts of the Koons II framework — which, again, is an either/or
framework. That mistake — understandable in light of the
paucity of recent and relevant Indiana authorities — led the
district court to deny Bopp’s motion for enforcement of the
lien. See JA 71 (“While [Bopp’s] assertions that it has
invested significant resources in pursuing the plaintiff’s claims
in this case may establish that [Bopp’s] efforts contributed to
the existence of the award of attorneys’ fees to the plaintiff in
this matter, [Bopp] has made no showing that its compensation
was ‘expressly or by implication, such a charge against the
fund as to amount to an assignment of some part thereof.’
Therefore, the Court concludes that [Bopp] has failed to
establish that it has a valid charging lien under Indiana
law . . . .” (quoting Koons II, 46 N.E. at 587) (cleaned up)). So
we vacate the district court’s decision.
On remand, reconsideration of Bopp’s motion for
enforcement of the lien may require the district court to decide
whether Bopp has established an equitable charging lien under
the first Koons II prong. On the other hand, at a district court
hearing on September 18, 2024, the parties may have agreed
that Bopp had an equitable charging lien. See JA 36, 39. We
express no view on whether Bopp has an equitable charging
lien under the first Koons II prong.

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Even if Bopp has a lien, the Former Attorneys may have a
lien with priority. So the district court may need to rule on the
priority of the parties’ liens.
If Bopp has a lien with priority, the district court may also
need to decide whether Bopp’s efforts to secure the fee-award
entitle Bopp to the amount of money that Bopp seeks. The fee
award is not a pool of money that was won through the efforts
of a settlement or damages award, but rather is meant to
compensate attorneys for specific billings. Bopp argues that it
is owed more under its lien than the portion of the EAJA award
resulting from its submission because the latter compensates at
lower hourly rates than Bopp billed under its agreement with
True the Vote. We express no view on the merits of that
argument.
On appeal, these issues were either not adequately raised
or not adequately briefed. With more fulsome briefing, the
district court is in the best position to decide them first. We
hope that it can quickly bring this thirteen-year-old case to a
close.
* * *
We vacate the district court’s order and remand for further
proceedings.
So ordered.

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