                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 13 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EDWARD BRASLEY; TODD                             No.   16-35519
WAYMENT; VERNON ELLIOTT;
BETTY NEWELL,                                    D.C. No. 1:08-cv-00173-BLW

              Plaintiffs-Appellants,
                                                 MEMORANDUM*
 v.

FEARLESS FARRIS SERVICE
STATIONS, INC.; WESTPOINT
TRANSPORTATION, INC., a wholly
owned subsidiary of Fearless Farris
Service Stations, Inc.; FEARLESS
FARRIS SERVICE STATIONS
DEFERRED COMPENSATION PLAN;
CHARLEY JONES, individually and as
present and/or former administrators and
fiduciaries of the Fearless Farris Service
Stations, Inc. Deferred Compensation
Plan; SHAWN DAVIS, individually and
as present and/or former administrators
and fiduciaries of the Fearless Farris
Service Stations, Inc. Deferred
Compensation Plan; STINKER STORES,
INC.,

              Defendants-Appellees.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                     Appeal from the United States District Court
                               for the District of Idaho
                      B. Lynn Winmill, Chief Judge, Presiding

                         Argued and Submitted March 5, 2018
                                 Seattle, Washington

Before: RAWLINSON, CLIFTON, and CHRISTEN, Circuit Judges.

      Appellant Edward Brasley (Brasley) appeals the district court’s order

denying his request for attorneys’ fees pursuant to 29 U.S.C. § 1132(g)(1).

      The district court’s determination that Brasley failed to demonstrate “some

degree of success” on the merits in his post-judgment litigation of Fearless’1

compliance with the district court’s amended judgment was not supported by the

record. See Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118,

1120 (9th Cir. 2010) (explaining that, in cases under the Employee Retirement

Income Security Act, “a fees claimant must show some degree of success on the

merits before a court may award attorney’s fees”) (citation and internal quotation

marks omitted). Indeed, the post-judgment proceedings before the special master

required Fearless to provide lump sum benefit payments to plan participants in

order to satisfy the district court’s amended judgment in favor of the plan

participants. See McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129, 1136 (9th Cir.


      1
          Defendant Fearless Farris Service Stations, Inc. and related entities.
                                            2
1996) (recognizing that “[a] plan participant who prevails in an action to enforce

rights under the plan is ordinarily entitled to a reasonable attorney’s fee if the

participant succeeds on any significant issue in litigation which achieves some of

the benefit sought in bringing suit”) (citation, alterations, and internal quotation

marks omitted).

      Having concluded that Brasley achieved “some success” on the merits, we

remand for the district court to apply in the first instance the factors delineated in

Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980), to determine if a

discretionary award of attorneys’ fees is justified. See Simonia, 608 F.3d at 1121

(holding that “after determining a litigant has achieved some degree of success on

the merits, district courts must still consider the Hummell factors before exercising

their discretion to award fees”). We express no view on the outcome of the district

court’s Hummell analysis, and acknowledge that the district court, after proper

application of the Hummell factors, retains discretion to award all, some, or none of

the requested fees. See id.

      VACATED and REMANDED WITH INSTRUCTIONS.




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