insurance benefits needs less incentive to bring a lawsuit than a victim of unconstitutional government conduct, and such an individual should not as a matter of course be considered a "private attorney general." The Court adopts the decision to reject the Hensley presumption.
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.
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. Applying the rigors of plaintiff's logic (e.g., how can landmark law be created when the losing party's position is dubious?), plaintiff also appears to be caught in self-contradiction.
The Court digs deeper into the Magistrate Judge's analysis and perceives the consistency in his approach. The Court of Appeals disagreed with this Court's 'narrow' construction of the scope of defendant's recognized duty. See Eddy, 287 U.S. App. D.C. 76, 919 F.2d 747. This is the basis for the Magistrate's conclusions that "the question presented was not so much legal as factual." RR at 6. The Court concurs with his analysis.
Given the statutory commitment to "discretion," the Court adopts the Magistrate Judge's decision to apply Hummell and thereby deny plaintiff's petition for attorney's fees. The report and recommendation is adopted in all respects.
Accordingly, it is this 14th day of February, 1994,
ORDERED that plaintiff's petition for attorney's fees be, and hereby is, denied; and it is further
ORDERED that plaintiff be, and hereby is, awarded costs in accordance with Fed. R. Civ. P. 54(d) and Local Rule 214.
NORMA HOLLOWAY JOHNSON
UNITED STATES DISTRICT JUDGE