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February 14, 1994

JOAN EDDY, Executor of the Estate of JAMES PETER EDDY, Plaintiff,


The opinion of the court was delivered by: NORMA HOLLOWAY JOHNSON


 This is an action under the Employee Retirement Income security Act (ERISA) to enforce the rights of plaintiff's decedent under his group insurance plan. This Court entered judgment for the defendant, which was reversed and remanded on appeal. See Eddy v. Colonial Life Ins., 287 U.S. App. D.C. 76, 919 F.2d 747 (D.C. Cir. 1990). This Court subsequently entered judgment on behalf of the plaintiff in the amount of $ 23,811.39.

 Presently pending is plaintiff's petition for attorneys' fees and costs. This Court referred the petition to Magistrate Judge Patrick J. Attridge for report and recommendation. On January 8, 1993, the Magistrate Judge recommended that plaintiff's petition for attorney's fees be denied and that the plaintiff be awarded costs in accordance with Fed. R. Civ. P. 54(d) and Local Rule 214. *fn1" Plaintiff filed objections in a timely fashion. Defendant's opposition and plaintiff's reply are also before the Court. Accordingly, the Court reviews the conclusions of the Magistrate Judge de novo. This Court adopts the report and recommendation denying plaintiff's attorney's fee petition.


 ERISA plainly commits the decision to award attorney's fees to the discretion of trial judges. *fn2" 29 U.S.C. § 1132(g)(1) (1988) provides, in pertinent part:

In any action under this subchapter . . . by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and cost of action to either party.

 This Circuit has not had occasion to adopt a definitive legal standard or set of factors to inform trial court discretion on the issue of attorneys' fees under ERISA. More specifically, the Court of Appeals has refrained from choosing from among the more "lenient" standard articulated in Hensley v. Eckerhart, 461 U.S. 424, 429, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983) (prevailing party should ordinarily recover attorneys' fees absent special circumstances rendering an award unjust), and the more stringent, ERISA-specific rule of Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980) (promoting a five factor test for when attorneys' fees and costs are appropriately awarded under ERISA). See Grand Union Co. v. Food Employers Labor Relations Assn., 257 U.S. App. D.C. 171, 808 F.2d 66, 71-72 (D.C. Cir. 1987) (declining to select "definitively" between these two potential standards); see also Greater Washington Bd. of Trade v. District of Columbia, No. 91-7061, 1992 U.S. App. LEXIS 11720, at *7 (D.C. Cir. Apr. 15, 1992). First and most importantly, the Court agrees with the Magistrate Judge's opinion that this case presents a situation in which a choice between the two standards is necessary.

 This Court begins where the report and recommendation ended. The Magistrate Judge declined to adopt the Hensley presumption in favor of an award, which governs in civil rights cases. Although the Supreme Court in Hensley also interpreted a congressional decision to leave attorney's fees to "discretion," this Court agrees that the differing policy considerations underlying ERISA and the civil rights laws support case-by-case consideration of the propriety of a fee award in ERISA cases. As the Magistrate Judge noted,

While the policies underlying ERISA are certainly important ones, they simply do not rise to the level, as some have suggested, of similarly worded fee shifting statues such as those which assure that all citizens are accorded their civil rights. Those provisions seek to encourage private litigants to vindicate national policy. "If [civil rights] plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest . . . [in] the federal courts." Iron Workers Local [ No. 272 v. Bowen, 624 F.2d 1255,] 1265 [(5th Cir. 1980)]. The plaintiff [in this case] did not seek to vindicate national policy or advance the public interest. The plaintiff sought the recovery of benefits from a plan that were due him alone; he needed no incentive in the form of attorney's fees to bring this action.

 Given the Circuit's apparent framing of the issue as a distinct choice between Hensley and Hummell, see Grand Union, 808 F.2d at 71-72, the Magistrate applied Hummell's five factor test. *fn3" The Court concurs with the Magistrate Judge's analysis of these factors. See RR at 4-6. Most significantly, the Court agrees that defendant did not act in bad faith and that the plaintiff's victory on the merits is sufficient deterrence for insurers and ERISA trustees in similar cases. The prospect of a fee award provides no significant extra deterrence.

 A few specific challenges to the Magistrate Judge's analysis warrant further comment. Plaintiff argues that even under a Hummell regime, a prevailing section 1132 plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1985) (quoting Landro v. Glendenning Motor Ways, Inc., 625 F.2d 1344, 1356 (8th Cir. 1980)). This "special circumstances" rule adopts a Hensley-oriented presumption. This Court has rejected the presumptive analogy between section 1132 ERISA plaintiffs and civil rights plaintiffs and, hence, rejects the Smith approach. Accord, Ellison v. Shenango Inc. Pension Bd., 956 F.2d 1268, 1274-75 (3d Cir. 1992) (ERISA plaintiffs not necessarily private attorneys general); Armistead v. Vernitron Corp., 944 F.2d 1287, 1302 (6th Cir. 1991). The Court adopts the Magistrate Judge's method of analyzing the Hummell factors without requiring "special circumstances" before denying a petition for attorneys fees.

 Plaintiff also perceives inconsistencies in the Magistrate Judge's analysis of this case. Plaintiff rhetorically manufactures an inconsistency between the Magistrate Judge's conclusion that defendant's breach of fiduciary duty was not in bad faith and his opinion that this litigation did not resolve any significant legal issues under ERISA. Pl.'s Oppn. at 10 (citing RR at 4-5). While this argument may have surface appeal, the Court notes that plaintiff has failed to apply the same logic to plaintiff's own analysis. Plaintiff at once argues that defendant's position on the merits was "quite dubious," Pl.'s Oppn. at 11, and that the Court of Appeals decision created landmark case law on the scope of an ERISA fiduciary's duty to disclose. ...

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