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Hardt v. Reliance Standard Life Insurance Co.: breathing new life into claimants' ability to obtain attorney's fees under ERISA's civil enforcement provision.

In Hardt v. Reliance Standard Life Insurance Co., the United States Supreme Court interpreted the statutory language of 29 U.S.C. section 1132(g)(1) to clarify that a court, in its discretion, may now grant a party's motion for attorney's fees when the party has achieved "some degree of success on the merits" in his or her case. The Court's decision was correct in adopting this less strenuous test rather than requiring prevailing party status before attorney's fees can be awarded. Additionally, under application of this less arduous test, the Court correctly concluded that Hardt was entitled to attorney's fees because remand of her case equated to some degree of success. The Court's adoption of the "some degree of success on the merits" standard was correct because this standard is consistent with the civil enforcement provision and express goals of the Employee Retirement Income Security Act ("ERISA") and deters plan administrators from using questionable practices in their review of claims for benefits.

I. INTRODUCTION

Generally, in civil litigation each party is responsible for his or her own attorney's fees. (1) However, the burden of paying fees may be shifted by statute. (2) Prior to the United States Supreme Court's ruling in Hardt v. Reliance Standard Life Insurance Co., (3) the federal circuits were split as to when to allow awards of attorney's fees when the underlying statute requires that the award be appropriate or within the court's discretion. (4) Importantly, several of the Federal Courts of Appeals prior to Hardt required that a party be a "prevailing party" before an award of attorney's fees was deemed appropriate. (5)

In Hardt, the United States Supreme Court reversed the Fourth Circuit's decision to deny attorney's fees to a woman who had been denied long-term disability insurance benefits under her employer's welfare benefits plan. (6) Although Hardt's motion for summary judgment was denied by the district court, she did secure a remand for reconsideration. (7) Moreover, the district court gave Reliance a firm warning that if it did not consider all of the evidence regarding Hardt's health upon remand, the district court would be inclined to rule for Hardt. (8) Not surprisingly, upon reconsideration, Reliance granted Hardt's long-term benefits. (9) Hardt then sought relief under section 1132(g)(1) for an award of attorney's fees. (10) The district court granted Hardt's attorney's fees, but the Fourth Circuit Court of Appeals reversed, finding that Hardt had not been a prevailing party and, therefore, was ineligible to receive the attorney's fees award. (11)

In deciding Hardt, the United States Supreme Court looked to its prior case law regarding fee-shifting statutes. (12) The Court rejected the lower federal court's requirement that Hardt must be a prevailing party before an award of attorney's fees would be appropriate. (13) Instead, the Court followed Ruckelshaus v. Sierra Club, (14) and found that Hardt was entitled to an award of attorney's fees under ERISA because she had achieved "some degree of success on the merits" in her case. (15)

This casenote will first explain the circumstances of Hardt, including the facts surrounding the issues that led to the appeal before the nation's highest court. (16) Next, this casenote examines the background of ERISA procedures for judicial review (17) and ERISA's civil enforcement provision. (18) The next portion of the background section examines the development of the Ruckelshaus standard of "some degree of success on the merits." (19) The final sections of the background examine the development of the five-factor test (20) and the resulting pre-Hardt split of opinion among the Federal Circuit Courts regarding when attorney's fees should be awarded under ERISA. (21) Lastly, and most importantly, the analysis will illustrate why the United States Supreme Court's holding was correct based on the express language of ERISA's civil enforcement provision, (22) as well as the express goals underlying ERISA. (23) The analysis ends with a discussion illustrating how the adoption of the "some degree of success on the merits" standard should deter plan administrators from using questionable practices in their review of claims for benefits. (24)

II. FACTS AND PROCEDURE

Bridget Hardt was employed by Dan River Inc. as an executive assistant. (25) In 2000, Hardt began suffering from pain in her neck and shoulders. (26) She was initially diagnosed with carpal tunnel syndrome. (27) Despite undergoing multiple surgeries her pain persisted. (28) Hardt was forced to leave Dan River in January of 2003 due to the pain from her carpal tunnel syndrome. (29)

Dan River's Group Long-Term Disability Insurance Program plan ("Plan") covered Hardt. (30) While Dan River administered the plan, Reliance underwrote any benefits awarded and also had the power to determine when benefits under the plan would be awarded to a claimant. (31) Because the plan was funded by her employer, it was subject to ERISA. (32) Hardt applied for long-term disability benefits from the plan in August 2003. (33) Her claim was provisionally accepted, but Reliance informed Hardt that final acceptance of her claim would be determined by the results of a functional capacities evaluation. (34) This evaluation was to assess how her medical condition affected her capacity to work. (35)

In October of 2003, Hardt underwent her functional capacities evaluation. (36) The evaluation concluded that Hardt was capable of doing "some amount of sedentary work." (37) Based on this result, Reliance found that Hardt did not meet the Plan's requirement that she must be completely disabled from any occupation in order to receive long-term disability benefits. (38) Reliance then denied Hardt's claim for long-term disability benefits. (39) Reliance partially reversed its decision after Hardt appealed to the Plan administrator. (40) Reliance found that "Hardt was totally disabled from her regular occupation." (41) Hardt therefore qualified to receive temporary disability benefits under the Plan for twenty-four months. (42)

During the period of time that Hardt received temporary disability benefits, new pains developed in her feet and knees. (43) She was subsequently diagnosed with small-fiber neuropathy. (44) Hardt's physical capabilities decreased as the pain grew worse over the subsequent months. (45) Hardt ultimately applied for Social Security disability benefit. (46) In her Social Security application, Hardt's physicians stated their conclusion that Hardt could not obtain full gainful employment because of her ailments. (47) Hardt's application was accepted, and she began receiving disability benefits in February 2005. (48)

Shortly thereafter, Reliance informed Hardt that her twenty-four month period of temporary benefits was about to elapse, and she still did not qualify as totally disabled as defined under the Plan. (49) Under the Plan's terms, long-term disability benefits are only available to participants who are "totally disabled from all occupations[.]" (50) Therefore, Hardt would not be able to collect long term disability benefits from the Plan. (51) Because Hardt received Social Security Disability benefits during the twenty-four month period she was also receiving benefits under the Plan, Reliance ordered that Hardt pay it $14,913.23 to offset the Social Security disability benefits. (52) Hardt paid the offset and filed her second administrative appeal. (53)

As part of her second administrative appeal, Hardt supplied Reliance with updated medical records and her application for Social Security disability benefits. (54) Reliance asked Hardt to complete additional functional capacities evaluations in December 2005 and January 2006. (55) The evaluator, under Reliance's direction, did not review Hardt for neuropathic pain despite the fact Reliance knew from her updated medical records that her doctor had added a diagnosis of neuropathy since her last evaluation. (56) Hardt appeared at both scheduled evaluations but feared submitting to specific tests because of the nausea and heightened pain they would cause her. (57) Therefore, the evaluations were deemed invalid. (58)

Because it considered Hardt's evaluation invalid, Reliance employed a physician and a vocational rehabilitation counselor to assist in deciding Hardt's appeal. (59) The physician reviewed only a select portion of Hardt's medical records. (60) Furthermore, he did not mention in his report Hardt's doctors' questionnaires for her Social Security disability benefits application or her pain medications. (61) Most notably, this physician, employed by Reliance, did not physically examine Hardt. (62)

Based on Hardt's functional capacities evaluation from 2003, the vocational rehabilitation counselor conducted a labor market survey and found eight employment opportunities that Hardt would be capable of performing. (63) Relying on the physician's report, the vocational rehabilitation counselor's market survey, and Hardt's 2003 functional capacities evaluation, Reliance affirmed its termination of Hardt's long-term disability benefits. (64) Reliance informed Hardt of its conclusion in March of 2006. (65)

Hardt consequently brought this action against Reliance in the United States District Court for the Eastern District of Virginia. (66) She claimed that procedural errors in her appeal for long-term disability benefits constituted violations of ERISA. (67) Hardt and Reliance each moved for summary judgment. (68) The district court denied both motions. (69)

The district court denied Reliance's motion for summary judgment ruling that "Reliance's decision to deny benefits was based on incomplete information." (70) The district court found it significant that the functional capacities evaluations did not assess the impact of Hardt's neuropathic pain. (71) The district court also found that the conclusions in the reviewing physician's report were not supported by medical evidence and failed to address the contrary medical findings of Hardt's treating physicians. (72) For these reasons, the district court determined it was "clear that Reliance's decision to deny Ms. Hardt long. term disability benefits was not based on substantial evidence." (73)

Even though the district court found that there was "compelling evidence ... Ms. Hart [was] totally disabled due to her neuropathy[,]" the district court decided to deny Hardt's motion for summary judgment. (74) Despite the fact that the district court was disposed to rule in Hardt's favor, it decided to remand the case back to the Plan administrator to give the administrator a chance to remedy the errors in its review of Hardt's application for benefits. (75) Reliance had thirty days to adequately reconsider Hardt's claim or the district court cautioned it would enter a judgment in Hardt's favor. (76) Upon remand, Reliance ultimately found Hardt to be permanently disabled. (77) Hardt received $55,250 in past-due benefits from Reliance. (78)

After winning her long-term disability benefits, Hardt sought an award of attorney's fees under section 1132(g)(1) of ERISA. (79) The district court applied the three-step test that governed fee requests under Fourth Circuit precedent. (80) The district court awarded Hardt's attorney fees and Reliance appealed. (81) The Court of Appeals vacated the award of attorney's fees because it found that Hardt had failed the first step by not proving she was a "prevailing party." (82) The Court of Appeals arrived at this conclusion by interpreting the United States Supreme Court decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources (83) to mean that a party is a prevailing party "only if he has obtained an 'enforceable judgment on the merits' or a 'court-ordered consent decree.'" (84) Hardt appealed to the United States Supreme Court raising two key issues. (85) First, whether attorney's fees are limited to "prevailing parties" under ERISA. (86) Second, whether attorney's fees should be awarded to a claimant whose case has been remanded for redetermination and has ultimately received benefits from the Plan. (87)

In a unanimous decision, the United States Supreme Court held "that a fee claimant need not be a 'prevailing party' to be eligible for an attorney's fees award under [section] 1132(g)(1)." (88) The United States Supreme Court then determined when it is appropriate for a court to award attorney's fees under ERISA. (89) To determine this, the Court relied heavily on the precedent of Ruckelshaus v. Sierra Club (90) and its interpretation of section 307(f) of the Clean Air Act. (91) The Supreme Court in Hardt employed the same interpretive approach as it did in Ruckelshaus to examine the express language of section 1132(g)(1). (92) In Ruckelshaus, the Supreme Court held that an award of attorney's fees was not appropriate "'absent some degree of success on the merits by the claimant[.]'" (93) The Supreme Court applied this test to Hardt's case to determine when it was within a court's discretion to grant an award of attorney's fees. (94)

The Supreme Court did not directly address Reliance's argument that a remand, even if it results in an award of benefits, does not constitute "some success on the merits." (95) Instead the Supreme Court focused on the district court's statements that it was inclined to rule for Hardt and its mandate that the Plan reevaluate her claim. (96) Additionally, the district court had warned Reliance that if it did not reconsider Hardt's application within thirty days, it would enter a judgment in Hardt's favor. (97) The Supreme Court found that a remand in this factual scenario constituted "some success on the merits" and reversed the judgment of the Court of Appeals denying Hardt's attorney's fees. (98)

Justice Stevens filed a concurring opinion stating that the Ruckelshaus decision should not be controlling in the interpretation of different statutory language. (99) He emphasized that Ruckelshaus was a closely decided decision (54) that hinged on interpretation of the legislative history of section 307(f) of the Clean Air Act. (100) Justice Stevens would have conducted a textual, structural, and historical analysis of section 1132(g)(1) before concluding the same approach, as determined in Ruckelshaus, should be applied. (101)

III. BACKGROUND

The United States Supreme Court has characterized ERISA as a complex statute enacted to resolve countless issues "between powerful competing interests[.]" (102) The Court has also expressed that ERISA has an "interlocking, interrelated, and interdependent remedial scheme, which is in turn part of a 'comprehensive and reticulated statute.'" (103)

Under ERISA, both pension and welfare plans constitute an employee benefit plan. (104)

The rights of employee benefit plan participants are protected by ERISA's civil enforcement scheme. (105) Specifically, section 1132(a) creates several causes of action available to individual to bring against plan administrators. (106) Sections 1132(a)(1), (107) 1132(a)(2), (108) and 1132(a)(3) (109) codify these private causes of action. (110) Because ERISA covers a wide variety of pension and welfare plans, (111) the causes of action it provides are usually the only remedy for plan participants who have suffered wrongs either in the context of employer sponsored health care or retirement benefits. (112) Furthermore, claims cannot avoid the preemption provision of ERISA by re-framing the claim under a state law tort theory to seek remedies outside of ERISA's purview. (113) For example, punitive damages and other state law remedies for bad faith actions are not available to plaintiffs under ERISA. (114)

Before ERISA, state laws regulating employee benefit plans had developed out of the background of trust law. (115) Against this historical backdrop, the Supreme Court concluded that Congress intended the lower courts to reference trust law when interpreting ERISA. (116) It was upon these foundational concepts of trust law that Congress anticipated traditional equitable remedies used in trust law, like awards of attorney's fees absent prevailing party status, to be recognized in ERISA cases. (117)

Congress stated that its intent in enacting ERISA was:
   [T]o protect ... the interest of participants in employee benefit
   plans and their beneficiaries, by requiring the disclosure and
   reporting to participants and beneficiaries of financial and other
   information with respect thereto, by establishing standards of
   conduct, responsibility, and obligation for fiduciaries of employee
   benefit plans, and by providing for appropriate remedies,
   sanctions, and ready access to the Federal courts. (118)


Additionally, the Supreme Court has stated that the purpose of ERISA is "'to promote the interest of employees and their beneficiaries in employee benefit plans' (119) and 'to protect contractually defined benefits.'" (120)

ERISA's formulation was motivated by the fact that before its enactment many employees had been promised pension but, for various reasons, did not receive them. (121) Common occurrences like "fiduciary self-dealing, imprudent investing and misappropriation of funds" indicated that comprehensive regulation was necessary. (122) Congress intended to improve the "maze of different and often conflicting state laws and regulations that resulted in administrative inefficiencies and costs that ultimately hurt plan participants." (123) Instead of requiring employers to provide certain benefits, Congress determined that employees' interests would be better served by federal regulation of the administration and management of employee benefit plans. (124)

A. JUDICIAL REVIEW OF ERISA PLAN ADMINISTRATORS' DECISIONS

Generally, when an ERISA beneficiary's benefits are denied, the plan provisions provide for an internal review process within the framework of the plan itself, with the final decision ultimately resting with the plan administrator. (125) If the denial is upheld by the plan administrator, the beneficiary may then seek review in federal court. (126) An appeal to the federal court will generally result in three possible outcomes: a reversal of the plan administrator's final decision, with a decision that renders the beneficiary the prevailing party; an affirmance of the plan administrator's final decision, rendering the plan as the prevailing party; or a remand to the plan administrator for reconsideration. (127)

The United States Supreme Court in Firestone Tire & Rubber Co. v. Bruch (128) permitted circumstances that would allow a plan insurer to receive deferential court review of the plan administrator's denials of a claim. (129) When the plan administrator is given discretionary authority by the plan, the court will not disturb the plan administrator's decision so long as it is reasonable. (130) Federal courts have often confused the deference allowed by the court in Firestone with the kind of deference courts extend to administrative agencies. (131) This deferential standard is used despite the fact that key procedural elements present at administrative hearings are lacking from the review process of plan administrators. (132) Plan participants who appeal the plan administrator's denial of benefits do not get the benefit of arguing his or her case before an unbiased tribunal. (133) Furthermore, plan participants who appeal the plan administrator's denial of benefits cannot use cross-examination to challenge the opposition's evidence. (134) Therefore, this has led to misuse of administrative law principles in ERISA claim disputes. (135)

Prior to Hardt, a party could only be awarded attorney's fees after a federal appeal if the claimant was a "prevailing party." (136) Secondly, the claimant would have to prove that an award of attorney's fees would be appropriate under a five-factor balancing test. (137) Thirdly, if the court, utilizing the five-factor test, concludes that an award of attorney's fees is appropriate, the court may limit the fees and costs requested to a reasonable amount. (138) The decision whether attorney's fees are appropriate is expressly within the court's discretion. (139) This means that, upon appeal, a court's determination to award or deny attorney's fees will only be overturned if the appealing party can show that the lower court abused that discretion in making its determination. (140)

B. ERISA's CIVIL ENFORCEMENT

Like many federal statutes, ERISA provides for attorney's fees to be awarded by motion of a party to the litigation in order to provide ready access to the federal court system. (141) Different types of statutes have emerged to permit a court to award attorney's fees. (142) Some statutes dictate that a fee may only be awarded to the "prevailing party," (143) while others permit a "substantially prevailing" (144) or "successful" (145) litigant to be awarded attorney's fees. (146) Another breed of statute permits courts to award attorney's fees when "appropriate." (147) ERISA's fee shifting provision falls into this category because section 1132(g)(1) specifically provides: "[i]n any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." (148) In interpreting section 1132(g)(1), as with any statute, the court also will look at the entirety of the statute, as well as its underlying goals and polices. (149)

1. Legislative History of ERISA's Fee Shifting Provision

ERISA was enacted in 1974, even though there was significant opposition to the legislation. (150) ERISA was Congress' first comprehensive legislation addressing abuse of employee pension plans. (151) Through ERISA, Congress responded to the call for stronger regulation to avoid the tragic results that were occurring under the state law regulation of pension plans. (152) ERISA's legislative history reveals that protection of the worker is an overarching goal of the statue. (153) Accordingly, the protection of workers was discussed in the statute's declaration of policy:
   [E]mployees and their beneficiaries have been deprived of
   anticipated benefits; and that it is therefore desirable in the
   interest of employees and their beneficiaries, for the protection
   of the revenue of the United States, and to provide for the free
   flow of commerce, that minimum standards be provided assuring the
   equitable character of such plans and their financial soundness.
   (154)


Despite the ample legislative history indicating the protection of workers as a goal of the statute, section 1132(g)(1) has sparse legislative history regarding attorney's fees and its importance to ensure plan participants have access to the courts. (155) However, there were discussions before the Committee on Education and Labor regarding the possible repercussions of various standards for a fee-shifting provision within ERISA. (156) In these hearings, there was proposed language that the fee-shifting provision should only be available to successful parties. (157) Witnesses testified that the requirement that a party be successful in order to be eligible for attorney's fees was necessary in order to deter nuisance cases and avoid ill-founded class actions. (158) Other witnesses testified out of concern for the court's ability to award fees to either side. (159) Their concern was based on the possibility that plaintiffs would be required to pay defendants' attorney's fees. (160) This result would not merely deter frivolous suits, but would completely deter all plan participants and beneficiaries from bringing suits under the civil enforcement provisions. (161) Once ERISA had reached the Congressional floor for debate, it was suggested that the court should have discretion to award fees to either side under the fee-shifting provision. (162)

2. Rationale of Fee-Shifting Statutes

Fee-shifting statutes serve many underlying purposes. (163) First, they serve to discourage frivolous litigation. (164) Second, they are meant to guarantee "proper implementation and administration of the act or otherwise serve the public interest." (165) Third, the statutes are used to encourage private enforcement as a means of implementing civil rights litigation, more commonly known as the "private attorney general" model. (166) This model is most often applied in civil rights litigation and allows an award of attorney's fees to a plaintiff who may initiate a lawsuit for his or her own benefit, but also acts as a "private attorney general" and benefits the rights of others. (167) Finally, fee-shifting statutes are meant to provide sufficient means to obtain fees in litigation to attract competent counsel. (168) But legislatures are careful to avoid creating windfalls for attorneys who litigate suits under these statutes. (169)

C. RUCKELSHAUS V. SIERRA CLUB: CREATION OF THE "SOME DEGREE OF SUCCESS ON THE MERITS" TEST TO OBTAIN AN AWARD OF ATTORNEY'S FEES

In 1983, the United States Supreme Court addressed the issue of whether it was appropriate under section 307(f) of the Clean Air Act (170) to allow a party who had not prevailed on the merits of the case to be awarded attorney's fees. (171) The claim arose when the Sierra Club brought suit against the Environmental Protection Agency ("EPA") alleging that it lacked authority under the Clean Air Act of 1963 to issue standards limiting the emission of sulfur dioxide by coal-burning power plants. (172) Sierra Club filed suit in the United States Court of Appeals for the District of Columbia against the EPA. (173) Even though the Sierra Club was unsuccessful on any of the merits of the case, it petitioned the court to award attorney's fees under section 307(f) of the Clean Air Act. (174) The Sierra Club claimed that it was entitled to attorney's fees, despite failure on the merits of the case, because it supported the objectives of the Clean Air Act. (175) The district court agreed with Sierra Club and awarded nearly $45,000 in attorney's fees. (176)

The Supreme Court granted certiorari to determine if such an award was appropriate under the Clean Air Act. (177) The federal statute stated that an award of attorney's fees is permitted in certain proceedings "whenever [the court] determines that such an award is appropriate." (178) In a split decision (5-4) the Supreme Court held under the Clean Air Act, the party must have achieved "some success on the merits" in order for the award of attorney's fees to be appropriate. (179)

Justice Rehnquist, writing for the majority, reached this conclusion by interpreting certain statutes with similar language to the Clean Air Act through the lens of the American Rule, under which a successful party generally need not pay the unsuccessful party's attorney's fee. (180) Specifically, the majority in Ruckelshaus found it dispositive that other federal statutes contained language permitting a total departure from the American Rule if a party "'represents an interest which would substantially contribute to a fair determination of the issues,' even if the participant's views were rejected." (181) However, section 307(f) of the Clean Air Act contained no such language regarding a total departure from the American Rule. (182) This appeared to be the fatal flaw of section 307(f) because absent express statuary authority, the majority was unwilling to vary from the traditional American Rule. (183)

The majority was not persuaded that the legislative history of section 307(f) called for more expansive eligibility for an award of fees. (184) The Sierra Club had relied significantly on a statement from the 1970 Senate Report on section 307(f), which stated that:
   The Courts should recognize that in bringing legitimate actions
   under this section citizens would be performing a public service
   and in such instances the courts should award costs of litigation
   to such a party. This should extend to plaintiffs in actions which
   result in successful abatement but do not reach a verdict. For
   instance, if as a result of a citizen proceeding and before a
   verdict is issued, a defendant abated a violation, the court may
   award litigation expenses borne by the plaintiffs in prosecuting
   such actions. (185)


The majority did not interpret the term "legitimate" in this passage to mean that Congress intended to extend an award of attorney's fees to even parties who are totally unsuccessful in an action. (186) Simply put, the majority did not find enough language in the legislative history to find that Congress intended the word "appropriate" to delineate from the American Rule as the Sierra Club sought. (187) However, the majority did recognize that section 307(f) was meant to increase the pool of eligible litigants beyond the traditional and narrow "prevailing party" standard adopted in various jurisdictions. (188) Conversely, the majority found "that trivial success on the merits, or purely procedural victories" would not support an award under the "appropriate" standard set forth in section 307(f). (189)

Accordingly, the majority held that if Congress had intended such a dramatic departure from the American Rule, that it would have stated so in the statutory language or legislative history. (190) Therefore, the majority declined to award attorney's fees "absent some degree of success on the merits by the claimant" (191) under the "appropriate" standard of section 307(f). (192)

The dissent, authored by Justice Stevens, strongly critiqued the majority's analysis of the provision's express language and its legislative history. (193) Justice Stevens navigated the language of section 307(f), its legislative history, and the legislative history of section 304(d) to come to the conclusion that the majority was simply reading the "appropriate" standard out of the statute and replacing it with its own "absent some degree of success on the merits" standard. (194)

Justice Stevens noted that the plain language of section 307(f) varied considerably from other fee-shifting federal statutes that require a party to be either "prevailing" (195) or "substantially prevailing" (196) or even considered "successful." (197) The fact that the plain language of section 307(f) differed significantly from these three categories of statutes, further strengthened the argument that Congress intended a departure from the traditional American Rule. (198)

Justice Stevens also looked to a 1977 Senate Report that a "prevailing party" standard was considered and then rejected. (199) In its place, the Senate Report adopted a provision stating that fees could be awarded "whenever the court determines that such an award is appropriate." (200) Additionally, the House Report expressly rejected a "prevailing party" standard in favor of the "appropriate" standard to discourage frivolous litigation. (201) By encouraging litigation, the "appropriate" standard "will assure proper implementation and administration of the act or otherwise serve the public interest." (202)

Lastly, Justice Stevens emphasized that the purpose of awarding costs and fees is not punitive, but rather it is intended to distribute the costs of litigation in an equitable manner. (203) This non-punitive function of the award thereby "encourage[s] the achievement of statutory goals." (204) Justice Stevens concluded that this public interest is what Congress was referring to when it qualified that awards of attorney's fees must be "appropriate." (205)

D. THE FIVE FACTOR TEST

Prior to the Hardt decision, once the claimant qualified as a prevailing party, the courts applied a five factor test to determine the availability of attorney's fees under section 1132(g). (206) The factors are derived from the Fifth Circuit Court of Appeals case, Iron Workers Local No. 272 v. Bowen. (207) The factors set forth in Iron Workers Local are as follows:

(1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys' fees; (3) whether an award of attorneys' fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties' positions.

Prior to the five factor test, most circuits had utilized some presumption for awarding fees to the prevailing party, however, most circuits since the adoption of the five factor test have then expressly rejected such a presumption. (209) Some circuits, like the Seventh and Ninth Circuits, utilize a hybrid version, considering both the five factor test and a presumption for prevailing parties to determine the availability of attorney's fees. (210)

E. SPLIT OF AUTHORITY AMONG THE FEDERAL CIRCUITS

Prior to the endorsement of the "some degree of success on the merits test" in Hardt, there was confusion and lack of systematic analysis among the federal appellate courts regarding when attorney's fees would be awarded. (211) The language of section 1132(g) expressly gives the district court the responsibility to award fees "in its discretion." (212) Prior to Hardt, the federal circuits had struggled under this broad discretionary power to identify exactly what circumstances made an award of attorney's fees appropriate. (213) The First, Fourth, Seventh, and Eleventh Circuits tended to interpret the fee-shifting statute narrowly and conservatively. (214) On the other hand, the Second, Fifth, Ninth, and Eleventh Circuits were more inclined to liberally construe the fee-shift. (215)

1. Conservative Interpretation and Application of Section 1132(g)(1)

The First Circuit has expressly held "that, in an ERISA case, a prevailing plaintiff does not, merely by prevailing, create a presumption that he or she is entitled to a fee-shifting award." (216) The First Circuit reasoned that the five factor test is already skewed in favor of the plaintiff, and that a presumption would therefore be "overkill." (217) To create a presumption that once a party has prevailed, he should be awarded attorney's fees takes flexibility away from the lower court's discretionary power. (218) Additionally, the court noted that the five factor test should not be an exclusive test, but rather a court should be able to consider additional criteria as appropriate. (219)

The Fourth Circuit Court of Appeals, in Martin v. Blue Cross & Blue Shield of Virginia, (220) has also extensively discussed the issue of whether a prevailing party is automatically entitled to an award of attorney's fees. (221) The court found that it was an error for the judge to apply a presumption test to determine whether fees should be awarded. (222) Rather than remanding the matter back for reconsideration with the appropriate five factor analysis, the court found as a matter of law that the plaintiff was not entitled to fees because generally "reversal of a judgment under ERISA also requires reversal of any attendant award of attorneys' fees." (223) Importantly, the court noted that it had previously suggested, but not held, that only prevailing parties are the proper parties to bring motions for awards of attorney's fees under ERISA. (224) The court further supported its position by citing to other circuits it found to "have imposed a 'prevailing party' limitation on the availability of attorneys' fees under ERISA." (225) Ultimately, the Fourth Circuit Court of Appeals reversed the award of attorney's fees to the plaintiff based on its own precedent and additional support from other circuits and held that "only a prevailing party is entitled to consideration for attorneys' fees in an ERISA action." (226)

The Seventh and Tenth Circuits have addressed the issue of whether a remand is enough to qualify a party as "prevailing" and therefore be eligible for attorney's fees. (227) The Tenth Circuit Court of Appeals, in Graham v. Hartford Life & Accident Insurance Co., (228) found the plaintiff's motion for attorney's fees was not yet ripe because the district court had remanded her claim back to the plan administrator. (229) The circuit court therefore vacated the district court's denial of attorney's fees. (230) The court reiterated that "[c]ourts vacate attorney's fees decisions when the presence of ongoing litigation precludes an informed determination of whether the moving party is in fact entitled to attorney's fees under the relevant law." (231) The court noted the five factor test cannot be properly applied without a final determination on the merits. (232) The court found it would be particularly difficult to evaluate both the fourth and fifth factors, when it was not yet clear whether the participant was entitled plan benefits. (233) The court tempered this finding by noting that ERISA plaintiffs would not be proscribed from receiving attorney's fees when their case is remanded back to the plan administrator. (234) However, the court also reiterated that it "afford[s] certain weight to prevailing party status, even though [it] acknowledge[s] that ERISA attorney's fees provision is not expressly directed at prevailing parties." (235) Perhaps most importantly, the plan participant argued that attorney's fees were necessary at the time of remand due to the reality of ERISA litigation, which often features an ailing plaintiff who can only afford to hire an attorney on a contingency fee basis. (236) The court was not persuaded. (237) Instead, the court found that commencing such policy change ought to come from the legislative body rather than the judiciary. (238)

The following year, in Tate v. Long-Term Disability Plan for Salaried Employees of Champion International Corp. #506, (239) the Northern District of Illinois District Court entered summary judgment for a plan participant, determining that termination of benefits was arbitrary and capricious 240 The case was remanded back to the plan administrator. (241) Subsequently, the district court denied the participant's requests for attorney's fees under section 1132(g) because it found that the participant had not yet achieved "prevailing party" status and there was no evidence of bad faith when the plan terminated benefits. (242) The Seventh Circuit Court of Appeals affirmed because the participant was only granted a remand for reconsideration instead of a reinstatement of benefits. (243) The Court of Appeals found that remand was appropriate in this situation because it was not clearly unreasonable for the plan administrator to terminate the participant's benefits. (244) Therefore, the participant was not a prevailing party and not entitled to attorney s fees. (245) The Court of Appeals expressly noted that in the past it has "held that a claimant who is awarded a remand in an ERISA case generally is not a 'prevailing party' in the 'truest sense of the term[.]'" (246) However, the opportunity to later seek attorney's fees was not expressly precluded. (247)

2. Liberal Interpretation and Application of Section 1132(g)(1)

Other Federal Circuit Courts of Appeal have implemented a more liberal analysis to determine when an award of attorney's fees is appropriate. (248) The Ninth Circuit Court of Appeals, in Flanagan v. Inland Empire Electrical Workers Pension Plan & Trust, (249) declined an award of attorney's fees to the plaintiffs because "they [had] not established a fight to benefits, nor shown that the Plan or its fiduciaries [had] violated ERISA." (250) But the court did note important past dictum in which it had stated an award of fees to a non-prevailing party may be appropriate in some instances. (251) Furthermore, the court stated that:
   Even if the prevailing party requirement does not apply wholesale
   in the ERISA context, however, the plaintiffs cannot recover fees
   under section 1132(g)(1) until they 'succeed on any significant
   issue in litigation which achieves some of the benefit they sought
   in bringing the suit.' (252)


This language foreshadows the test the Supreme Court eventually crafts to determine when attorney's fees are appropriate under ERISA. (253)

Taking the liberal interpretation a step further, both the Eleventh Circuit and the Second Circuit have stated that a party need not prevail under ERISA in order to be entitled to attorney's fees. (254) In Gibbs v. General American Life Insurance Co., (255) the Fifth Circuit also concluded that "a party need not prevail in order to be eligible for an award of attorney's fees under [section] 1132(g)(1)." (256) In Gibbs, the Fifth Circuit interpreted many of the more conservative decisions from other federal circuits to not necessarily foreclose the ability of non-prevailing parties to be eligible for an award of attorney's fees. (257)

IV. ANALYSIS

Prior to the Hardt decision the courts were split as to what degree of success a party needed to achieve for an award of attorney's fees to be appropriate and within the intent of ERISA. (258) Some circuits, like the Fourth, had held parties to the high standard of requiring the party be prevailing for it to be appropriate to award attorney's fees. (259) In Hardt, Justice Thomas, writing the majority opinion, correctly holds that a fee claimant need not be a "prevailing party" to be eligible for an attorney's fees award under ERISA's fee-shifting provision. (260) Hardt's adoption of the "some degree of success on the merits" test breathes new life into claimants' abilities to be granted attorney's fees by replacing the "prevailing party" test, thereby lowering a substantial hurdle for plaintiffs to obtain attorney's fees. (261) Adoption of a "some degree of success on the merits" test rightfully increases the amount of fee claimants who may be awarded attorney's fees in ERISA cases. (262)

The Supreme Court's adoption of the "some degree of success on the merits" standard is consistent with ERISA's existing civil enforcement scheme. (263) It also aligns with the express goals of ERISA by protecting against under-enforcement of claims and ensuring an ERISA beneficiary has access to the courts. (264) Furthermore, this standard deters plan administrators from pushing the envelope in denying claims. (265)

A. IMPLEMENTING THE "SOME DEGREE OF SUCCESS ON THE MERITS" STANDARD INTO SECTION 1 132(G)(1) IS CONSISTENT WITH THE ENFORCEMENT SCHEME OF ERISA

The plain language of the enforcement scheme demonstrates how section 1132(g)(1) is not a "prevailing party" statute. (266) The enforcement provision of ERISA provides that "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." (267) Generally speaking, the civil enforcement section has been construed narrowly with implied claims or remedies under this section being declined. (268) Similarly, the Supreme Court is unwilling to read limiting language into a section where it is not expressly provided. (269) Vague concepts regarding a statute's "basic purpose" cannot overcome the actual language found in the text. (270) This rule of thumb is particularly true in complex legislation like ERISA, which was designed to resolve disputes between conflicting interests of the parties. (271)

The Supreme Court concluded in Ruckelshaus that by expressly incorporating an "appropriate" standard for awarding fees under the Clean Air Act, Congress had widened the class of plaintiffs eligible for attorney's fees awards "from prevailing parties to partially prevailing parties." (272) The same logical conclusion of widening the class can be drawn from Congress' use of a "discretion" standard in the ERISA fee-shifting provision. (273) Looking at the plain language of the two provisions, the only textual difference in the standards is the Clean Air Act requires fees be "appropriate," while ERISA allows fees in the court's "discretion." (274) The definitions of these two terms reveal that they are virtually synonymous. (275) The similarity of meaning between the two express terms in the provision indicates similar Congressional intent to widen the class of plaintiffs eligible for attorney's fees awards in ERISA cases. (276)

Had the Supreme Court chosen to adopt a prevailing party requirement into section 1132(g)(1), the Supreme Court would have been contrary to its own approach regarding ERISA interpretation. (277) It is not within the judiciary branch's scope to change the enforcement scheme of ERISA by requiring that claimants meet a "prevailing party" status. (278) Instead, the legislative process is better suited to address potential changes to ERISA's enforcement scheme because the will of the people resolves "innumerable disputes between powerful competing interests." (279) The incorporation of a "prevailing party" standard would have disturbed how Congress crafted the civil enforcement provisions. (280) Therefore, the Supreme Court in Hardt was correct to not inject a "prevailing party" standard, where that standard is not expressly required. (281)

B. PREVENTION OF UNDER-ENFORCEMENT OF BENEFICIARIES' RIGHTS IS AN EXPRESS GOAL OF ERISA

The declaration of policy of ERISA demonstrates that Congress intended to expand the class of plaintiffs who would be eligible for attorney's fees under section 1132(g)(1) to those who have achieved some degree of success on the merits instead of a "prevailing party" standard. (282) ERISA expressly provides a goal of the statute as "protect[ing] ... the interests of participants in employee benefit plans and their beneficiaries ... by providing for appropriate remedies, sanctions, and ready access to the Federal courts." (283) Contextually, ERISA was enacted amid tragic scenarios stemming from abuses of employees by an unregulated system of pension plans. (284) ERISA's fee-shifting provision was enacted in its present form to guarantee "'that attorney's fees [do not] present a barrier to maintenance of suits for small claims, thereby risking underenforcement of beneficiaries' statutory rights.'" (285) Therefore, giving a court the discretion to award reasonable attorney's fees and costs to either side, rather than the high hurdle of "prevailing party" status, is the more appropriate choice to fulfill the express goals of ERISA as a whole. (286)

Protection of employee benefit plan participants and their beneficiaries is particularly important when the context of their personal situations is understood. (287) The plaintiffs who bring suit to enforce their rights under ERISA are disabled in some way and likely of limited financial means, thereby making it difficult to retain an attorney due to their inability to keep gainful employment. (288) In addition, ERISA claimants seek benefits they have already paid for through premiums. (289) These premiums are meant to replace income lost if the potential ERISA claimant is unable to work. (290) Attorney's fees may consume a significant portion of a worker's benefit award, or may even exceed it. (291) This is precisely what occurred to Hardt. (292) She had received $55,250 in accrued long-term disability benefits, but her attorney's fees and costs totaled $58,920.73. (293) Had Hardt, and other claimants like her, been held to a strict "prevailing party" standard, she would have been required to pay for the protection of her rights to those benefits out of the benefits themselves, despite the fact it was ultimately determined upon remand she was entitled to benefits. (294) Requiring claimants to pay from their benefits for protection of their rights to those same benefits would be contrary to the express goal of ERISA, to protect the interests of plan participants and beneficiaries. (295)

C. THE "SOME DEGREE OF SUCCESS ON THE MERITS" STANDARD PROPERLY DETERS IMPROPER BEHAVIOR BY PLAN ADMINISTRATORS

Prior to Hardt, a federal court's ability to award attorney fees to an ERISA beneficiary was predicated upon the determination that the beneficiary was the prevailing party. (296) This limitation, coupled with the fact that plan administrators are granted discretionary review by the courts, led plan administrators to deny benefits in close cases. (297) Plan administrators knew that even if they did not consider key evidence, the court would likely remand instead of ruling for the insured. (298) The plan administrators were not deterred from doing this because there was virtually no risk of attorney's fees being assessed against them under the "prevailing party" standard when the case was remanded. (299) Had the Supreme Court formally accepted a "prevailing party" standard, plan administrators would have been able to confidently oppose benefits at all points of the process until they were compelled by the threat that the plan beneficiary might obtain an "enforceable judgment[] on the merits" or a "court-ordered consent decree[][.]" (300) Instead, by adopting the "some degree of success on the merits" standard, the Supreme Court opens the possibility for a plan participant or beneficiary to receive attorney's fees upon a remand to the plan administrator. (301) An award of attorney's fees can be substantial, and the increased possibility of recoverability by plaintiffs should deter the plan administrators from engaging in questionable practices. (302)

V. CONCLUSION

ERISA's text is plain. It provides that either party be awarded attorney's fees within the court's discretion. Courts that previously had required an award of attorney's fees be awarded only to "prevailing parties" had generally ignored ERISA's text. The high hurdle of a "prevailing party" requirement also flies in the face of ERISA's express goal of prevention of under-enforcement of beneficiaries' rights. Perhaps most egregiously, a strict "prevailing party" standard allowed plan administrators to deny benefits with only the slight risk they would be held responsible for the plaintiff's attorney's fees. Courts are not justified in creating a high "prevailing party" requirement as an initial hurdle to obtaining attorney's fees when it is found nowhere within ERISA's text, legislative history, express goals, or underlying principles. If a higher standard is needed, it is for Congress to declare. For all these reasons, the Court's adoption of the "some degree of success on the merits" standard announced in Hardt is the proper standard for ERISA claims.

It remains unclear whether a remand for reconsideration alone constitutes "success on the merits," but post-Hardt, it is certainly arguable that the Ruckelshaus test is satisfied. Hardt's case was especially strong, therefore further litigation will likely be required to determine the floor of what constitutes "some degree of success on the merits." However, the practical implications of Hardt indicate that other fee claimants may reach the "some degree of success on the merits" by securing a remand, especially if remand is based on a violation of law. Because remand for reconsideration is an arguable ground for granting attorney's fees, it is likely that a close case will come down to the discretionary power of the federal district court.

It is important to remember that ERISA plaintiffs, like Hardt, are particularly vulnerable in litigation since they are usually unable to maintain employment and subsequently afford attorney's fees and costs of litigation on their own. To keep attorney's fees attainable, the "some degree of success on the merits" standard is a more practical standard for applying ERISA's purpose of providing ready access to the federal courts in contemporary cases. The increased possibility of awards of attorney's fees resulting from the adoption of the "some degree of success on the merits" test is the necessary oxygen to keep plan participant's claims breathing. Without the awards, their claims will be suffocated out of court, thereby frustrating the purpose of ERISA. To require a plaintiff meet "prevailing party" status before an award of attorney's fees becomes appropriate would misconstrue how heavily a party's amount of success should weigh within the court's analysis of when to award attorney's fees.

(1.) See, e.g., Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't of Health & Human Res., 532 U.S. 598, 602-03 (2001) (discussing the American rule for attorney's fees); Ruckelshaus v. Sierra Club, 463 U.S. 680, 683 (1983); Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975).

(2.) Buckhannon, 532 U.S. at 602.

(3.) 130 S. Ct. 2149 (2010).

(4.) Compare Martin v. Blue Cross & Blue Shield of Va. Inc., 115 F.3d 1201, 1210 (4th Cir. 1997) (requiring that only a prevailing party is entitled to fees under ERISA), with Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir. 1995) (noting that a party need not prevail under ERISA in order to be entitled to consideration for attorney's fees).

(5.) Flanagan v. Inland Empire Elec. Workers Pension plan & Trust, 3 F.3d 1246, 1253 (9th Cir.

1993) (stating that "plaintiffs cannot recover fees under section 1132(g)(1) until they succeed on [some] significant issue in litigation which achieves some of the benefit [they] sought in bringing suit"); Doe v. Travelers Ins. Co., 167 F.3d 53, 61 (1st Cir. 1999) (noting "such awards are normally for the prevailing party, if at all, ... are based on rather general considerations such as fault, ability to pay, deterrence, and the like"); Poteete v. Capital Eng'g, Inc., 185 F.3d 804, 807-08 (7th Cir. 1999) (citing 29 U.S.C. [section] 1132(g)(1) (explaining "principles that sometimes entitle a party to recover his attorneys' fees limit that entitlement to prevailing parties")).

(6.) Hardt, 130 S. Ct. at 2153-54, 2159.

(7.) Id. at 2154.

(8.) Id.

(9.) Id.

(10.) Id.

(11.) Id. at 2155.

(12.) Id. at 2156-57 (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 683 (1983); Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975); Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't. of Health & Human Res., 532 U.S. 598, 602-03 (2001); Perdue v. Kenny A., 130 S. Ct. 1662, 1671 (2010)).

(13.) Id. at 2156.

(14.) 463 U.S. 680 (1983).

(15.) Hardt, 130 S. Ct. at 2159 (concluding that Hardt had achieved more than mere "trivial success on the merits" or a "purely procedural victory").

(16.) See infra Part II.

(17.) See infra Part III.A.

(18.) See infra Part III.B.

(19.) See infra Part III.C.

(20.) See infra Part III.D.

(21.) See infra Part III.E.

(22.) See infra Part IV.A.

(23.) See infra Part IV.B.

(24.) See infra Part IV.C.

(25.) Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2152 (2010).

(26.) Id.

(27.) Id. The Mayo Clinic describes carpal tunnel syndrome as "numbness, pain, and eventually, hand weakness" resulting from pressure placed on the carpal nerve which runs through the carpal tunnel on the palm side of the wrist. Mayo Clinic, Carpal Tunnel Syndrome, http://www.mayoclinic.com/health/carpal-tunnel-syndrome/ds00326 (last visited Feb. 28, 2011).

(28.) Hardt, 130S. Ct. at 2152.

(29.) Id.

(30.) Id.

(31.) Brief for Appellant at 3, Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010) (No. 09-448) [hereinafter Appellant's Brief].

(32.) Hardt, 130 S. Ct. at 2152. See also 29 U.S.C. [section] 1003 (2006) (applying ERISA to "any employer engaged in commerce or in any industry or activity affecting commerce").

(33.) Hardt, 130S. Ct. at2152.

(34.) Id.

(35.) Id.

(36.) Id.

(37.) Id.

(38.) Appellant's Brief, supra note 31, at 3-4. Under the Plan, a claimant qualifies for twenty-four months of disability benefits if he or she "'cannot perform the material duties of his/her regular occupation;' to continue receiving benefits thereafter, she must be unable to perform 'the material duties of any occupation[.]'" Id. at 4 (quoting Joint Appendix at 37a-38a, Hardt, 130 S. Ct. 2149 (No. 09-448), 2010 WL 741090, at *37a-*38a).

(39.) Hardt, 130 S. Ct. at 2152.

(40.) Id.

(41.) Id.

(42.) Id.

(43.) Appellant's Brief, supra note 31, at 4.

(44.) Hardt, 130 S. Ct. at 2153. The Mayo Clinic describes peripheral neuropathy as a condition caused by nerve damage resulting in numbness and pain in hands and feet. Mayo Clinic, Peripheral Neuropathy, http://www.mayoclinic.com/health/peripheral-neuropathy/DS00131. The pain is typically described as tingling or burning, Id. In some cases, small-fiber neuropathy may result in loss of sensation, Id. See also Jinny Tavee, Small fiber neuropathy: A burning problem, 76 CLEVELAND CLINIC JOURNAL OF MEDICINE 297-98 (2009).

(45.) Appellant's Brief, supra note 31, at 4.

(46.) Hardt, 130 S. Ct. at 2153.

(47.) Id.

(48.) Id. See also Joint Appendix at 98a-99a, Hardt, 130 S. Ct. 2149 (No. 09-448), 2010 WL 741090, at *98a-*99a (noting the finding of the Social Security Administration that Hardt's multiple conditions not only made it impossible for her to resume employment with Dan River but also that she could not adapt to substitute employment).

(49.) Hardt, 130S. Ct. at2153.

(50.) Id.

(51.) Id.

(52.) Appellant's Brief, supra note 31, at 5 (explaining that Hardt was required to pay $14,913.23 to Reliance due to an offset provision in the Plan which required the monthly benefits received from the plan to be reduced by the amount of the benefits received from Social Security). See also Joint Appendix at 56a, Hardt, 130 S. Ct. 2149 (No. 09-449), 2010 WL 741090, at *56a, for the offset provision of the Plan.

(53.) Hardt, 130 S. Ct. at 2153.

(54.) Id.

(55.) Id.

(56.) Id.

(57.) Id.

(58.) Id.

(59.) Id.

(60.) Id.

(61.) Id.

(62.) Id.

(63.) Id.

(64.) Id.

(65.) Id.

(66.) Id.

(67.) Appellant's Brief, supra note 31, at 5.

(68.) Hardt, 130 S. Ct. at 2154.

(69.) Id.

(70.) Id.

(71.) Id.

(72.) Id.

(73.) Id. (internal citation omitted).

(74.) Id. (internal citation omitted).

(75.) Id. See Gallo v. Amoco Corp., 102 F.3d 918, 923 (7th Cir. 1996). The court in Gallo stated:
   [W]hen a court or agency fails to make adequate findings or fails
   to provide an adequate reasoning, the proper remedy in an ERISA
   case, as well as a conventional case, is to remand for further
   findings or explanations, unless it is so clear cut that it would
   be unreasonable for the plan administrator to deny the application
   for benefits on any ground.


Gallo, 102 F.3d at 923.

(76.) Hardt, 130S. Ct. at 2154.

(77.) Id.

(78.) Id.

(79.) Id. See also Employee Retirement Income Security Act of 1974 [section] 502(g)(1), 29 U.S.C. [section] 1132(g)(1) (2006). "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 costs of action to either party." 29 U.S.C. [section] 1132(g)(1).

(80.) Hardt, 130 S. Ct. at 2154.

(81.) Id. at 2155.

(82.) Id.

(83.) 532 U.S. 598, 605 (2001) (refusing to award attorney's fees absent judicial alteration of the relationship between the parties).

(84.) Hardt, 130 S. Ct. at 2155 (quoting Buckhannon, 532 U.S. at 604).

(85.) Id.

(86.) Appellant's Brief, supra note 31, at i.

(87.) Id.

(88.) Hardt, 130 S. Ct. at 2156.

(89.) Id.

(90.) 463 U.S. 680 (1983).

(91.) Hardt, 130 S. Ct. at 2157-58.

(92.) Id. at 2158.

(93.) Id. (quoting Ruckelshaus, 463 U.S. at 694).

(94.) Id.

(95.) Id. at 2158-59.

(96.) Id.

(97.) Id. at 2159.

(98.) Id. "These facts establish that Hardt has achieved far more than 'trivial success on the merits' or a 'purely procedural victory.'" Id.

(99.) Id. (Stevens, J., concurring).

(100.) Id. (Stevens, J., concurring).

(101.) Id. (Stevens, J., concurring).

(102.) See, e.g., Mertens v. Hewitt Assoc., 508 U.S. 248, 262 (1993).

(103.) Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985) (quoting Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 361 (1980)).

(104.) 29 U.S.C. [section] 1002 (2006). See Shaw v. Delta Airlines, Inc., 463 U.S.85, 90-91 (1983).

(105.) Id. [section] 1132.

(106.) See infra text and accompanying notes 118-120.

(107.) 29 U.S.C. [section] 1132(a)(1) (2006). ERISA provides:
   [a] civil action may be brought by a participant or beneficiary for
   the relief provided for in subsection (c) of this section, or to
   recover benefits due to him under the terms of his plan, to enforce
   his rights under the terms of the plan, or to clarify his rights to
   future benefits under the terms of the plan[.]


29 U.S.C. [section] 1132(a)(1) (2006).

(108.) 29 U.S.C. [section] 1132(a)(2) (2006) (providing that "a civil action may be brought by the Secretary [of Labor], or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title").

(109.) 29 U.S.C. [section] 1132(a)(3) (2006). ERISA provides:
   [a] civil action may be brought by a participant, beneficiary, or
   fiduciary (A) to enjoin any act or practice which violates any
   provision of this subchapter or the terms of the plan, or (B) to
   obtain other appropriate equitable relief to redress such
   violations or to enforce any provisions of this subchapter or the
   terms of the plan[.]


29 U.S.C. [section] 1132(a)(3) (2006).

(110.) 29U.S.C.[section]1132(2006).

(111.) 29 U.S.C. [section] 1003 (2006). ERISA's general coverage provision provides that:
   [T]he subchapter shall apply to any employee benefit plan if it is
   established or maintained by any employer engaged in commerce or in
   any industry or activity affecting commerce; or by any employee
   organization or organizations representing employees engaged in
   commerce or in any industry or activity affecting commerce; or by
   both.


29 U.S.C. [section] 1003 (2006).

(112.) 29 U.S.C. [section] 1144 (2006). ERISA's supersedure provision provides that the "chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a)[.]" Id.

(113.) Aetna Health Inc. v. Davila, 542 U.S. 200, 214-15 (2004).

(114.) See 29 U.S.C. [section] 1003 (2006) (providing wide coverage to employee benefit plans); 29 U.S.C. [section] 1144 (2006) (providing that ERISA supersedes all state laws relating to employee benefit plans); 29 U.S.C. [section] 1132 (providing the forms of relief available under ERISA).

(115.) Appellant's Brief, supra note 31, at 32-33 (citing H.R. REP. NO. 93-533, at 4, reprinted in 1974 U.S.C.C.A.N. 4639, 4643).

(116.) Appellant's Brief, supra note 31, at 32 (citing Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 559, 570 (1985) (noting that Congress intended trust law principles to be applied in ERISA); Beck v. PACE Int'l Union, 551 U.S. 96, 101 (2007) (stating the "common law of trusts ... serves as ERISA's backdrop"); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989) (interpreting ERISA with guidance from trust law)).

(117.) Appellant's Brief, supra note 31, at 33-34 (citing Dardovitch v. Halzman, 190 F.3d 125, 14546 (3d Cir. 1999)). "One of the more common exceptions to the American Rule is that attorney's fees are available at the discretion of the court in cases involving trusts[.]" Dardovitch, 190 F.3d at 145.

(118.) M. Stacey Bach, ERISA--The Awarding of Interest as "'Other Appropriate Equitable Relief' Under ERISA: The Third Circuit Enlarges Interest Recovery in Fotta v. Trustees of the United Mine Workers, 44 VILE. L. REV. 807, 808 n.4 (1999) (citing 29 U.S.C. [section] 1001(b) (1994)).

(119.) Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989) (quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90 (1983)).

(120.) Firestone, 489 U.S. at 113 (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985)).

(121.) See Jeffrey A. Brauch, The Danger of Ignoring Plain Meaning. Individual Relief for Breach of Fiduciary Duty Under ERISA, 41 WAYNE L. REV. 1233, 1237-38 (1995) (discussing the factual background ERISA was built upon). For example, after the closing of a Studebaker plant, "4,000 employees between the ages of forty and fifty-nine with at least ten years of service, and whose pensions had vested, received only fifteen cents on the dollar of their accrued benefits." Id. at 1238.

(122.) Bach, supra note 118, at 808 n.4.

(123.) Brauch, supra note 121, at 1238 (citing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 13739 (1990)). The complexity of pre-ERISA employee benefit regulation sprang from the interplay of courts' attempt to apply various common law theories, as well as various statutory remedies. Columbia Law Review, Pension Plans and the Rights of the Retired Worker, 70 COEUM. L. REV. 909, 916-35 (1970).

(124.) See Bach, supra note 118, at 807 n.3 (citing Shaw, 463 U.S. at 91).

(125.) Interview with Roger M. Baron, Professor of Law, University of South Dakota School of Law, in Vermillion, S.D. (Oct. 20, 2010) [hereinafter Baron Interview].

(126.) Id.

(127.) Id.

(128.) 489 U.S. 101 (1989).

(129.) Id. at 115.
   Consistent with established principles of trust law, we hold that a
   denial of benefits challenged under [section] 1132(a)(1)03) is to
   be reviewed under a de novo standard unless the benefit plan gives
   the administrator or fiduciary discretionary authority to determine
   eligibility for benefits or to construe the terms of the plan.


Id.

(130.) Id. at 111. See also Conkright v. Frommert, 130 S. Ct. 1640, 1651 (2010) (holding the standard of review described in Firestone and Glenn to be the controlling standard of review when a plan administrator has been given discretionary authority to interpret employee benefit plans); Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 116 (2008) (refusing to overrule Firestone and adopt a de novo standard of review of wrongful denial of benefits claims).

(131.) See Mark D. DeBofsky, The Paradox of the Misuse of Administrative Law in ERISA Benefit Claims, 37 J. MARSHALL L. REV. 727, 727-30 (2004) (discussing misapplication of administrative law principles in ERISA litigation and examining Posner's analysis in Herzberger v. Standard Ins. Co., 205 F.3d 327 (7th Cir. 2000)). Judge Posner addressed how the courts have mistakenly given deference to ERISA plan administrators despite the absence of procedural protections available in the administrative law context:
   What may have misled courts in some cases is the analogy between
   judicial review of an ERISA plan administrator's decision to deny
   disability benefits and judicial review of the denial of such
   benefits by the Social Security Administration.... Judicial review
   of the latter sort of denial is of course deferential, and it is
   natural to suppose that it should be deferential in the former case
   as well. But the analogy is imperfect, quite apart from its having
   been implicitly rejected by the Supreme Court in Firestone Tire &
   Rubber Co. v. Bruch when it determined that the default standard of
   review in ERISA cases is plenary review, and quite apart from the
   fact that the social security statute specifies deferential
   ("substantial evidence") review. The Social Security Administration
   is a public agency that denies benefits only after giving the
   applicant an opportunity for a full adjudicative hearing before a
   judicial officer, the administrative law judge. The procedural
   safeguards thus accorded, designed to assure a full and fair
   hearing, are missing from determinations by [ERISA] plan
   administrators.



Herzberger, 205 F.3d at 332 (internal citation omitted).

(132.) See DeBofsky, supra note 131, at 738-39. DeBofsky further explains that administrative proceedings that do not utilize procedural safeguards are subject to de novo review under the Administrative Procedure Act. Id. at 739.

(133.) Id. at 738-39.

(134.) Id.

(135.) Id. at 740.

(136.) Martin v. Blue Cross & Blue Shield of Va., Inc., 115 F.3d 1201, 1210 (4rh Cir. 1997). See also Baron Interview, supra note 125. But see Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir. 1995) (noting that in the Second Circuit, a party need not prevail under ERISA in order to be entitled to consideration for attorney's fees).

(137.) Baron Interview, supra note 125. See infra Part III.D.

(138.) Baron Interview, supra note 125.

(139.) 29 U.S.C. [section] 1132(g)(1) (2006). See Mid Atl. Med. Servs., LLC v. Sereboff, 407 F.3d 212, 221 (4th Cir. 2005) (recognizing a district court's ability to grant attorney's fees in its discretion).

(140.) Sereboff 407 F.3d at 221 (applying an abuse of discretion standard of review to a district court's decision of whether to grant attorney's fees). In Sereboff, the court explained that discretion is abused when "a court has failed adequately to consider 'judicially recognized factors constraining its exercise' of discretion or in relying on 'erroneous factual or legal premises.'" Id. (quoting James v. Jacobson, 6 F.3d 233,239 (4th Cir. 1993)).

(141.) See Gibbs v. Gen. Am. Life Ins. Co., 210 F.3d 491, 505 (5th Cir. 2000). "Clearly, Congress intended the fee provisions of ERISA to encourage beneficiaries to assert their rights without fear of being responsible for the fees and costs of their opponent's attorneys if they failed to prevail." Id.

(142.) Ruckelshaus v. Sierra Club, 463 U.S. 680, 682-85 (1983).

(143.) Ruckelshaus, 463 U.S. at 684 n.3 (citing Equal Access to Justice Act, 5 U.S.C. [section] 504(a)(1) (1976 ed., Supp. V) as an example of a "prevailing party" provision). The language of 5 U.S.C. [section] 504(a)(1) remains an expressly "prevailing party" statute. 5 U.S.C. [section] 504(a)(1) (2006). "An agency that conducts an adversary adjudication shall award, to a prevailing party ... fees and other expenses incurred by that party in connection with that proceeding[.]" 5 U.S.C. [section] 504(a)(1) (2006).

(144.) Ruckelshaus, 463 U.S. at 684 n.4 (citing Freedom of Information Act, 5 U.S.C. [section] 552(a)(4)(E)(i) (1976) as an example of a "substantially prevail[ing]" provision). The language of 5 U.S.C. [section] 552(a)(4)(E)(i) remains an expressly "substantially prevail[ing]" statute. 5 U.S.C. [section] 552(a)(4)(E)(i) (2006). "The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. [section] 552(a)(4)(E)(i) (2006).

(145.) Ruckelshaus, 463 U.S. at 684 n.5 (citing Jewelers' Hall-Mark Act, 15 U.S.C. [section] 298(c) as an example of a provision requiring a party be "successful" before attorney's fees may be awarded). The language of 15 U.S.C. [section] 298(c) continues to require a party to be "successful" before attorney's fees may be awarded. 15 U.S.C. [section] 298(c) (2006). The statute provides that " if [a party is] successful[, the party] shall recover the cost of suit, including a reasonable attorney's fee." 15 U.S.C. [section] 298(c) (2006).

(146.) See supra notes 143-45 for examples of different types of fee-shifting statutes.

(147.) See Ruckelshaus, 463 U.S. at 682 n.1 (citing Toxic Substances Control Act, 15 U.S.C. [section] 2618(d) as an example of a provision requiring an award of attorney's fees to be "appropriate"). The language of 15 U.S.C. [section] 2618(d) continues to require an award of attorney's fees to be "appropriate." 15 U.S.C. [section] 2618(d) (2006). "The decision of the court ... may include an award of costs of suit and reasonable fees for attorneys and expert witnesses if the court determines that an award is appropriate." 15 U.S.C. [section] 2618(d) (2006).

(148.) 29 U.S.C. [section] 1132(g)(1) (2006).

(149.) Pilot Life Ins. Co. v. Dedeaux, 481U.S. 41, 51(1987). See, e.g., Dada v. Mukasey, 554 U.S. 1, 16 (2008) (stating "'[i]n determining the meaning of the statute we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy'") (quoting Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991)) (quoting Crandon v. United States, 494 U.S. 152, 158 (1990)).

(150.) Delia M. Druley, South Dakota State Medical Holding Company, Inc., v. Hofer: A Deferential Standard of Review Permits ERISA Administrators to Contravene Their Fiduciary Obligations, 54 S.D. L. REV. 266, 277 (2009).

(151.) Druley, supra note 150, at 277. Druley explains how prior to ERISA, employee pension plans were regulated under the Welfare and Pension Plans Disclosure Act of 1958, the Labor Management Relations Act of 1947, and the Internal Revenue Code of 1954. Id. at 277 n.109.

(152.) Druley, supra note 150, at 277. Prior to ERISA's enactment there were three basic issues regarding pension plans including: underfunding of the plans, breaches of fiduciary duties by plan administrators, and varying regulation among the states, Id. at 277 n.111 (citing ERISA: A COMPREHENSIVE GUIDE 1 (Martin Wald & David E. Kenty eds., 1991).

(153.) Druley, supra note 150, at 278. See Donald T. Bogan, ERISA: The Foundational Insufficiencies for Deferential Review in Employee Benefit Claims: Metropolitan Life Insurance Co. v. Glenn, 27 HOFSTRA LAB. & EMP. L.J. 147, 180-81 (2009).

(154.) Druley, supra note 150, at 277-78 (citing 29 U.S.C. [section] 1001(a) (2000)).

(155.) See Martin v. Ark. Blue Cross & Blue Shield, 299 F.3d 966, 971 (8th Cir. 2002); see also Gibbs v. Gen. Am. Life Ins. Co., 210 F.3d 491, 505 (5th Cir. 2000) (explaining that "Congress intended the fee provisions of ERISA to encourage beneficiaries to assert their rights without fear of being responsible for the fees and costs of their opponent's attorneys if they failed to prevail").

(156.) See infra text and accompanying notes 158-161.

(157.) Employee Retirement Income Security Act of 1974: Hearing on H.R. 2 and H.R. 462 Before the Subcomm. on Labor of the H. Comm. on Education and Labor, 93rd Cong. 161 (1973) [hereinafter Hearings] (statement of Stetson V. Harman, President, Trust Division, American Bankers Association) (stating that the proposed legislation should "be amended to grant the court discretion to award attorney's fees and costs to defendants, if successful in an action, as well as to successful participants or beneficiaries and to grant the court discretion to determine the source of payment of fees and costs").

(158.) Hearings, supra note 157, at 771 (written statement of the Corporate Fiduciaries Association of Illinois with Respect to H.R. 2 and H.R. 462).

(159.) Hearings, supra note 157, at 510 (1973) (statement of David Raft, Director of the Clinical Program in Employee Rights, New York University School of Law) (explaining that given the proposed language that a court would have the discretion to award attorney's fees to either party, plan participants would prevent a majority of claims because of the risk that upon failure a participant would be required to lose any benefits they had been receiving, pay their own attorney, and pay the plan's attorney).

(160.) Hearings, supra note 157, at 510 (1973) (statement of David Raft, Director of the Clinical Program in Employee Rights, New York University School of Law).

(161.) Hearings, supra note 157, at 510 (1973) (statement of David Raft, Director of the Clinical Program in Employee Rights, New York University School of Law).

(162.) 120 CONG. REE. H1094 (Feb. 25, 1974) (statement of Rep. Perkins).

(163.) Ruckelshaus v. Sierra Club, 463 U.S. 680, 687 (1983).

(164.) Id.

(165.) Id. See also Gibbs v. Gen. Am. Life Ins. Co., 210 F.3d 491, 505 (5th Cir. 2000) (stating "[c]learly, Congress intended the fee provisions of ERISA to encourage beneficiaries to assert their rights without fear of being responsible for the fees and costs of their opponent's attorneys if they failed

to prevail").

(166.) See, e.g., Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989).

(167.) Keith Greiner, Judicial Imprimatur Required: Raising the Standard for Awards of Attorneys' Fees under the Idea in Smith v. Fitchburg Public Schools, 41 NEW ENG. L. REV. 711, 720 (2007) (quoting Newman v. Piggie Park Enter. Inc., 390 U.S. 400, 402 (1968)). "The private citizen was thus considered to have brought the suit 'to enforce a fundamental civil fight that will be of benefit to society as a whole.'" Id. at 721 (quoting Joseph Bean, Felling the Farrar Forest: Determining Whether Federal Courts will Award [section] 1988 Attorney's Fees to a Prevailing Civil Rights Plaintiff who only Recovers Nominal Damages, 33 U. MEM. L. REV. 573, 577-78 (2003)).

(168.) See Woodford v. Cmty. Action Agency of Greene County, Inc., 239 F.3d 517, 525 (2d Cir. 2001) (explaining that "'[t]he function of an award of attorney's fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel'") (quoting Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982)).

(169.) See Woodford, 239 F.3d at 525.

(170.) 42 U.S.C. [section] 7607(f) (2006).

(171.) Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 (1983).

(172.) Id. at 681.

(173.) Id.

(174.) Id.

(175.) Id. at 682.

(176.) Ruckelshaus, 463 U.S. at 682.

(177.) Id.

(178.) Id. at 682-83 (quoting 42 U.S.C. [section] 7607(f) (1982)). The express language of the fee-shifting provision of the Clean Air Act of 1963 that the Supreme Court analyzed in Ruckelshaus remains unaltered. See 42 U.S.C. [section] 7607(f) (2006).

(179.) Ruckelshaus, 463 U.S. at 682.

(180.) Id. at 682-87.

(181.) Id. at 685 n.7 (quoting 15 U.S.C. [section] 2605(c)(4)(A) (1982)).

(182.) Id.

(183.) Id.

(184.) Ruckelshaus, 463 U.S. at 686-91.

(185.) Id. at 686 n.8 (quoting S. REP. No. 91-1196, at 38 (1970)).

(186.) Id. at 686.

(187.) Id. at 686-90.

(188.) Id. at 688 (stating that "Congress intended to eliminate both the restrictive readings of 'prevailing party' ... and the necessity for case-by-case scrutiny by federal courts into whether plaintiffs prevailed 'essentially' on 'central issues'").

(189.) Ruckelshaus, 463 U.S. at 688 n.9.

(190.) Id. at 686.

(191.) Id. at 694.

(192.) Id.

(193.) Id. at 695, 700-06 (Stevens, J., dissenting).

(194.) Id. at 712 (noting that the courts have a duty to accept choices of Congress once a provision's meaning is determined and deemed constitutional) (citing Tenn. Valley Auth. v. Hill, 437 U.S. 153, 19495 (1978)).

(195.) Id. at 701 n.12 (listing federal statutes that expressly require fee claimants be "prevailing parties").

(196.) Id. (listing federal statutes that expressly limit fees to "substantially prevailing" parties).

(197.) Id. (listing federal statutes that expressly limit fees to "successful" parties).

(198.) See id. at 701-02.

(199.) Id. at 704 n.15 (citing to S. REP. NO. 95-127, at 99 (1977) (Conf. Rep.)).

(200.) Id. at 704 (stating that "[s]ection 307 is amended to give courts the discretion to award attorneys' fees when they deem such action is appropriate") (quoting S. REP. NO. 95-127, at 99 (1977) (Conf. Rep.)).

(201.) Id. (citing H.R. REP. NO. 95-294, (1977) (Conf. Rep.)).

(202.) Id.

(203.) Id. at 705-06 (citing Natural Res. Def. Council v. E.P.A., 484 F.2d 1331, 1338 (1st Cir. 1973)).

(204.) Id.

(205.) See id. at 706-08.

(206.) See generally Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1264-67 (5th Cir. 1980) (providing an example of early precedent applying a five factor test).

(207.) 624 F.2d 1255 (5th Cir. 1980).

(208.) Id. at 1266.

(209.) Martin v. Ark. Blue Cross & Blue Shield, 299 F.3d 966, 970 (8th Cir. 2002) (citing Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 226 (1st Cir. 1996); Eddy v. Colonial Life Ins. Co. of Am., 59 F.3d 201, 205-06 (D.C. Cir. 1995); Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1030 (4th Cir. 1993); Ellison v. Shenango Inc. Pension Bd., 956 F.2d 1268, 1274 (3d Cir. 1992); Armistead v. Vernitron Corp., 944 F.2d 1287, 1302 (6th Cir. 1991); Iron Workers, 624 F.2d at 1255.

(210.) Martin, 299 F.3d at 970 (citing McElwaine v. U.S.W., Inc., 176 F.3d 1167, 1172 (9th Cir. 1999) (endorsing the five factor test and stating that the court should ordinarily award attorney's fees to prevailing ERISA participants unless special circumstances would make it unjust)); Little v. Cox's Supermarkets, 71 F.3d 637, 644 (7th Cir. 1995) (recognizing the five factor test as well as a "substantially justified" presumption but noting that "the bottom-line question is the same: was the losing party's position substantially justified and taken in good faith, or was that party simply out to harass its opponent").

(211.) See Flanagan v. Inland Empire Elec. Workers Pension plan & Trust, 3 F.3d 1246, 1253 (9th Cir. 1993) (stating in dictum that ERISA's fee provision allows the court, in its discretion, to award nonprevailing parties their attorney's fees, however, "plaintiffs cannot recover fees under [section] 1132(g)(1) until they succeed on [some] significant issue in litigation which achieves some of the benefit ... sought in bringing the suit"); but see Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225 (1st Cir. 1996) (reading the word "prevailing" into section 1132(g)(1)).

(212.) 29 U.S.C. [section] 1132 (g)(1) (2006).

(213.) See Flanagan, 3 F.3d at 1253; but see Cottrill, 100 F.3d at 225.

(214.) See infra Part III.E.1.

(215.) See infra Part III.E.2.

(216.) Cottrill, 100 F.3d at 226.

(217.) Id. at 226.

(218.) Id. (citing Gray v. New Eng. Tel. and Tel. Co., 792 F.2d 251, 258 (1st Cir. 1986)).

(219.) Cottrill, 100 F.3d at 225.

(220.) 115 F.3d 1201 (4th Cir. 1997).

(221.) Id. at 1209-10. In Martin, the plaintiff brought suit because the defendant insurer excluded a medical treatment because it found the procedure to be experimental or investigative and therefore not covered by the plan. Id at 1203. The district court held for the plaintiff and granted her request for attorney's fees. Id. at 1204. The district court judge did not use the five factor test in determining whether fees should be awarded, Id. Instead, the judge stated "that attorneys' fees under ERISA should be recovered by the prevailing party absent special circumstances rendering the award unjust." Id. at 1209. The defendant appealed and when the verdict for the plaintiff was reversed, so too was the award for attorney's fees. Id. at 1210.

(222.) Id. at 1209.

(223.) Id. at 1210 (citing Freeman v. Cent. States, Se. & Sw. Areas Pension Fund, 32 F.3d 90, 94 (4th Cir. 1994) (stating that because the court clearly erred in its ruling, "[t]he judgment, as well as the derivative award of attorney's fees and costs, must therefore be reversed"); Elmore v. Cone Mills Corp., 23 F.3d 855, 863 (4th Cir. 1994) (en banc) (stating that "our reversal of the prior judgment also requires that we vacate the award of attorneys' fees to Plaintiffs"); Fuller v. FMC Corp., 4 F.3d 255, 264 (4th Cir. 1993) (stating that "because of our ruling in favor of [the employer], we must also reverse the award in favor of [plaintiffs] for attorney's fees")).

(224.) Id. (citing Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 423 (4th Cir. 1993) (explaining that a party "must demonstrate more than merely being the prevailing party on a single issue to demand entitlement to attorney's fees")).

(225.) Id. (citing Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225 (1st Cir. 1996) (considering "the degree of culpability or bad faith attributable to the losing party" and "the depth of the losing party's pocket") (emphasis added); Boggs v. Boggs, 82 F.3d 90, 94 n.1 (5th Cir. 1996) (explaining that ERISA "allows the court to award ERISA beneficiaries, participants, and fiduciaries reasonable attorney's fees and costs when they are the prevailing party"); Little v. Cox's Supermarkets, 71 F.3d 637, 644 (7th Cir. 1995) (presenting the "'bottom-line question'" of whether "the losing party's position [was] substantially justified and taken in good faith") (emphasis added); Eddy v. Colonial Life Ins. Co., 59 F.3d 201,206 (D.C. Cir. 1995) (factoring in "the losing party's culpability or bad faith" and "the losing party's ability to satisfy a fee award") (emphasis added); McPherson v. Employees' Pension Plan, 33 F.3d 253, 254 (3d Cir. 1994) (explaining that "[a]ttorneys' fees may be awarded to prevailing parties in actions brought under [ERISA]"); Flanagan v. Inland Empire Elec. Workers Pension plan & Trust, 3 F.3d 1246, 1253 (9th Cir. 1993) (acknowledging ERISA allows attorney's fees to non-prevailing parties, but concluding that plaintiffs must prevail on a significant issue that achieves at least part of the claim the party sought when it brought the suit) (citing Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984); but see Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir. 1995) (stating that ERISA "contains no requirement that the party awarded attorneys' fees be the prevailing party")).

(226.) Martin, 115 F3d at 1210.

(227.) Tate v. Long Term Disability Plan for Salaried Employees of Champion Int'l. Corp. #506, 545 F.3d 555 (7th Cir. 2008); Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 1153 (10th Cir. 2007).

(228.) 501 F.3d 1153 (10th Cir. 2007).

(229.) Graham, 501 F.3d at 1161.

(230.) Id.

(231.) Id. at 1162 (citing Bennett v. Coors Brewing Co., 189 F.3d 1221, 1238, 1239 (10th Cir. 1999); Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 674 (9th Cir. 2004); Star Phoenix Mining Co. v. W. One Bank, 147 F.3d 1145, 1148 (9th Cir. 1998)).

(232.) Graham, 501 F.3d at 1162.

(233.) Id. The fourth factor is "whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself." Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980). The fifth factor looks to "the relative merits of the parties' positions." Id.

(234.) Graham, 501 F.3d at 1163.

(235.) Id. at 1162 (citing Deboard v. Sunshine Mining & Ref. Co., 208 F.3d 1228, 1245 (10th Cir. 2000) (concluding that because its "decision ... alters the amount of benefits conferred on plan members, and likewise alters the relative merits of the parties' positions," the district court should reevaluate whether an increased award of attorney's fees was appropriate); Morgan v. Indep. Drivers Ass'n Pension Plan, 975 F.2d 1467, 1471 (10th Cir. 1992) (stating that "[a]lthough the statute does not expressly require that a party prevail as a condition to receiving an award of attorneys' fees ... we have remanded cases for denial of fees without explanation only when the party seeking fees had prevailed at least partially"); Afrsten v. Frontier Airlines, Inc. Ret. Plan for Pilots, 967 F.2d 438, 442 n.3 (10th Cir. 1992) (explaining that "[b]ecause we reverse the district court's decision on the merits, plaintiff is not a prevailing party, and his arguments on attorney's fees are moot")).

(236.) Graham, 501 F.3d at 1162 n.10.

(237.) Id.

(238.) Id.

(239.) 545 F.3d 555 (7thCir. 2008).

(240.) Id. at 559.

(241.) Id.

(242.) Id.

(243.) Id. at 563-64.

(244.) Id. at 563 (quoting Quinn v. Blue Cross & Blue Shield Ass'n., 161 F.3d 472, 477 (7th Cir. 1998) (quoting Gallo v. Amoco Corp., 102 F.3d 918, 923 (7th Cir. 1996))). The court stated:
   [W]hen a court or agency fails to make adequate findings or fails
   to provide an adequate reasoning, the proper remedy in an ERISA
   case, as well as a conventional case, is to remand for further
   findings or explanations, unless it is so clear that it would be
   unreasonable for the plan administrator to deny the application for
   benefits on any ground.


Id. (internal citations omitted).

(245.) Id. at 564.

(246.) Id. (citing Quinn, 161 F.3d at 478-79).

(247.) See id.

(248.) Gibbs v. Gen. Am. Life Ins. Co., 210 F.3d 491, 501-05 (5th Cir. 2000); Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir. 1995); Flanagan v. Inland Empire Elec. Workers Pension plan & Trust, 3 F.3d 1246, 1253-54 (9th Cir. 1993); Freeman v. Continental Ins. Co., 996 F.2d 1116, 1119-21 (11th Cir. 1993).

(249.) 3 F.3d 1246 (9th Cir. 1993).

(250.) Id. at 1253.

(251.) Id. (citing Phillips v. Alaska Hotel & Rest. Employees Pension Fund, 944 F.2d 509, 521 (9th Cir. 1991)).

(252.) Id. (quoting Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984) (emphasis added)).

(253.) See id. Contra Buckhannon Bd. & Care Home, Inc., v. W.V. Dep't of Health & Human Resources, 532 U.S. 598, 604 (2001) (stating that a claimant qualifies as a "prevailing party" only if he has obtained an "enforceable judgment[] on the merits" or a "court-ordered consent decree[]").

(254.) See Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir. 1995) (stating that section 1132(g)(1) "contains no requirement that the party awarded attorneys' fees be the prevailing party"); Freeman v. Continental Ins. Co., 996 F.2d 1116, 1119 (11th Cir. 1993) (stating "unlike other fee-shifting provisions, which give the court discretion to award fees to a prevailing party, [section] 1132(g)(1) allows a court to award fees to either party") (emphasis added).

(255.) 210 F.3d 491 (5thCir. 2000).

(256.) Id. at 503.

(257.) Id. at 501 (finding the analysis of cases from the First, Third, Fifth, Ninth, and D.C. Circuits as not necessarily foreclosing eligibility for an award of attorney's fees).

(258.) See supra Part III.E.

(259.) See supra Part III.E.1.

(260.) See infra Parts IV.A, IV.B, IV.C.

(261.) See Correy E. Stephenson, ERISA Claimants Have Easier Path to Recover Attorney's Fees (May 27, 2010) http://lawyersusaonline.com/blog/2010/05/27/erisa-claimants- have-easier-path-to-recover-attorney-fees/.

(262.) See infra Part IV.B.

(263.) See infra Part IV.A.

(264.) See infra Part IV.B.

(265.) See infra Part IV.C.

(266.) See 29 U.S.C. [section] 1132(g)(1) (2006).

(267.) 29 U.S.C. [section] 1132(g)(1) (2006).

(268.) See Appellant's Brief, supra note 31, at 28 (citing Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 239 (2000) (stating the inappropriateness of limiting the types of defendants who may be sued under section 1132(a)(3)(b) absent limiting language in the statute); Varity Corp. v. Howe, 516 U.S. 489, 507-08 (1996) (examining the text and structure of ERISA to decline to limit the enforcement scheme through unstated principles)).

(269.) Appellant's Brief, supra note 31, at 28 (citing Mass. Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985) (rejecting expansion of section 1132(a)(2) to include remedies not expressly mentioned in the statute); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987) (noting the powerful preemptive force of ERISA's civil enforcement scheme codified at section 1132(a) precludes supplementation by state-law remedies)).

(270.) Mertens v. Hewitt Assoc., 508 U.S. 248, 261 (1993). See also Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646-47 (1990) (citing Rodriguez v. United States, 480 U.S. 522, 525-26 (1987)); Mass. MutualLife, 473 U.S. at 147. In Mass Mutual Life, the Court stated:
   We are reluctant to tamper with an enforcement scheme crafted with
   such evident care as the one in ERISA. As we stated in Transamerica
   Mortgage Advisors, Inc. v Lewis ... "[W]here a statute expressly
   provides a particular remedy or remedies, a court must chary of
   reading others into it."


Mass. Mutual Life, 473 U.S. at 147 (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)).

(271.) Mertens, 508 U.S. at 262 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54-56 (1987)).

(272.) Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983).

(273.) Compare 42 U.S.C [section] 7607(f) (2006) (providing "[i]n any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate"), with 29 U.S.C. [section] 1132(g)(1) (2006) (providing "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party").

(274.) Compare 42 U.S.C [section] 7607(f) (2006) (providing "[i]n any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate"), with 29 U.S.C. [section] 1132(g)(1) (2006) (providing "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party").

(275.) Compare BLACK'S LAW DICTIONARY 208 (2d pocket ed. 1999) (defining discretion as "[w]ise conduct and management; cautious discernment; prudence"), with WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 106 (Philip Babcock Gore ed., Merrian-Webster Inc. 1993) (1961) (defining appropriate as "specially suitable: Fit, Proper").

(276.) Compare Ruckelshaus, 463 U.S. at 686-88 (interpreting the Congressional intent of the word "appropriate" to modify but fall short of a complete rejection of "the traditional rule that a fee claimant must 'prevail' before it may recover attorney's fees" thereby making attorney's fees "appropriate" when a party has achieved "some success"), with Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2158-59 (2010) (interpreting the Congressional intent of the word "discretion," in light of the fact that Congress did not clearly indicate a departure from the traditional prevailing party requirement, to mean a party "must show 'some degree of success on the merits' before a court may award attorney's fees under section 1132(g)(1)").

(277.) See infra text and accompanying notes 307-10.

(278.) See Pension Benefit Guar. Co. v. LTV Corp., 496 U.S. 633, 646-47 (1990). "'[N]o legislation pursues its purposes at all costs.'" Id. (quoting Rodriguez v. United States, 480 U.S. 522, 525-26 (1987)). "'Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice[.]'" Id. (quoting Rodriguez, 480 U.S. at 525-26).

(279.) See Mertens v. Hewitt Assocs., 508 U.S. 248, 262-63 (1993).

(280.) See 29 U.S.C. [section] 1132(g)(1) (2006) (providing "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party").

(281.) See supra Part IV.A.

(282.) See 29 U.S.C. [section] 1001(b) (2006); Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983). For an example of a strictly construed "prevailing party" interpretation, see Buckhannon Bd. & Care Home, Inc., v. W.V. Dep't of Health & Human Resources, 532 U.S. 598, 604 (2001) (stating that a claimant qualifies as a "prevailing party" only if he has obtained an "enforceable judgment[] on the merits" or a "court-ordered consent decree[]").

(283.) 29 U.S.C. [section] 1001(b) (2006).

(284.) Druley, supra note 150, at 277. Public outcry for pension reform reached a climax after employees of the Studebaker Automobile Company virtually lost their pensions. Id. at 277 n. 110.

(285.) Appellant's Brief, supra note 31, at 29 (quoting Mass. Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 147 (1985)).

(286.) See 29 U.S.C. [section] 1001(b) (2006) (providing the policy of ERISA to protect "the interests of participants in employee benefit plans and their beneficiaries ... by providing for appropriate remedies, sanctions, and ready access to the Federal courts").

(287.) See infra text and accompanying notes 327-34.

(288.) See Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 590 (9th Cir. 1984) (recognizing that ERISA claimants have limited resources); Marquardt v. N. Am. Car Corp., 652 F.2d 715, 718 (7th Cir. 1981) (noting that the ERISA claimant had no definite source of income to fund his litigation aside from the pension benefits he alleged were due to him).

(289.) Appellant's Brief, supra note 31, at 30-31. See also Baron Interview, supra note 125.

(290.) Appellant's Brief, supra note 31, at 31. See also Baron Interview, supra note 125.

(291.) Appellant's Brief, supra note 31, at 31.

(292.) Appellant's Brief, supra note 31, at 31.

(293.) Appellant's Brief, supra note 31, at 31.

(294.) See Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2154 (2010); Buckhannon Bd. & Care Home, Inc., v. W.V. Dep't of Health & Human Resources, 532 U.S. 598, 604 (2001) (refusing to grant attorney's fees when there has been a private settlement between the parties).

(295.) See supra Part IV.B.

(296.) Baron Interview, supra note 125.

(297.) Stephenson, supra note 261. See also supra Part III.A (discussing the discretion courts give to plan administrators' decisions).

(298.) Stephenson, supra note 261. For example in Hardt, the court chose to remand the case to the plan administrator to provide it an opportunity to correct the deficiencies in its review of Hardt's claim rather than reinstating her benefits. Hardt, 130 S. Ct. at 2154.

(299.) See Buckhannon, 532 U.S. at 604. The Supreme Court in Buckhannon refused to grant attorney's fees to a party who had not secured a "judgment on the merits or a court-ordered consent decree" even though the lawsuit brought about the change the party sought in bringing the suit. Id. at 600.

(300.) See id. at 604.

(301.) Hardt, 130 S. Ct. at 2158-59 (allowing attorney's fees in a case of a remand to the plan administrator). Reliance argued that a remand never constitutes "some degree of success on the merits." Id. at 2158. The Supreme Court rejected Reliance's argument but declined to determine "whether a remand order, without more, constitutes 'some success on the merits' sufficient to make a party eligible for attorney's fees under [section] 1132(g)(1)." Id. at 2159.

(302.) See supra Part IV.C. See also Stephenson, supra note 261.

TIFFANY R. TIMMERMAN, J.D. Candidate, 2011, University of South Dakota School of Law; B.A., Saint Mary's University of Minnesota. The author would like to thank Blayne Grave, Krista Schram, and Meghan Woster for their thoughtful guidance and help throughout the writing and editing process as well as Professor Roger Baron for his priceless insight on the subject matter. Moreover, the author would like to thank her fiance and family for their love and support.
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Date:Sep 22, 2011
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