                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0948n.06

                                            No. 13-3519
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS                           Nov 05, 2013
                                FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk
CHRIS A. GEIGER,                               )
                                               )
       Plaintiff – Appellant,                  )        ON APPEAL FROM THE UNITED
                                               )        STATES DISTRICT COURT FOR THE
v.                                             )        SOUTHERN DISTRICT OF OHIO
                                               )
PFIZER, INC., et al.,                          )
                                               )
       Defendants – Appellees.                 )


       Before: SUTTON and KETHLEDGE, Circuit Judges; and DOW, District Judge.*


       DOW, District Judge. Plaintiff Chris Geiger sued her employer, her long-term disability

plan, and the benefits administrator of her long-term disability plan, seeking review of her claim for

long-term disability benefits that were discontinued in March 2009. After considering the parties’

cross-motions for judgment on the administrative record, the district court remanded the case and

ordered the benefits administrator to consider Geiger’s occupational requirements and acknowledge

the Social Security Administration’s determination of disability. Geiger then moved for attorney

fees under 29 U.S.C. § 1132(g)(1). The district court denied Geiger’s request and this appeal

ensued. For the following reasons, we affirm.

                                                   I.

       Following a horseback-riding injury in 2007, Chris Geiger applied for long-term disability

benefits under the terms of an employee welfare benefit plan offered by her employer, Pfizer, Inc.

*
   The Honorable Robert M. Dow, Jr., United States District Judge for the Northern District of
Illinois, sitting by designation.
In addition to a fractured hip sustained during the horseback-riding incident, Geiger’s medical

records indicated that she suffered from, among other things, fibromyalgia and narcolepsy. Initially,

the benefits administrator, Cigna Life Insurance Company of New York (“Cigna”), granted Geiger’s

claim; however, approximately a year later, Cigna reversed its previous decision and discontinued

Geiger’s long-term benefits. Geiger appealed the decision to terminate her benefits. After Cigna

upheld its decision, Geiger filed an action in the Southern District of Ohio in which she asserted a

single claim for unlawful denial of long-term benefits under the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), against Cigna Group Insurance, Pfizer, Inc.,

and Pfizer, Inc. Long-Term Disability Plan. Geiger subsequently amended her complaint to add

Cigna Life Insurance Company of New York as a defendant.

       Geiger and all of the Defendants moved for judgment on the administrative record. On

January 16, 2013, the district court granted in part and denied in part Plaintiff’s motion and denied

Defendants’ cross motion, remanding Geiger’s claim to Cigna to conduct a “full and fair review of

Plaintiff’s claim for long term disability benefits.” Specifically, the court directed Cigna to consider

Geiger’s occupational requirements, as well as a Social Security Administration determination of

disability that was not part of the administrative record. The district court did not find that Geiger

was disabled, as Geiger had urged. Rather, the Court concluded that Cigna had acted arbitrarily and

capriciously in evaluating Geiger’s long-term disability benefits claim. Additionally, while the court

acknowledged that Cigna operates under “an inherent conflict of interest,” it neither found evidence

of bias nor a conflict of interest that affected the decision-making process.

       Once the case was remanded, Geiger brought a “Motion to Re-Open the Case” and moved

for attorney’s fees. The district court denied the request for fees, and Geiger appealed.1

1
  In her opening brief, Geiger contends that the district court “should have, at the very least, re-
opened the case to fully consider the issue of attorney’s fees.” Appellant’s Br. at 4. The district
                                                  II.

       ERISA, 29 U.S.C. § 1132(g)(1), provides that “in any action under the 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.” See Secretary of Dept. of Labor v. King, 775 F.2d 666, 669

n.5 (6th Cir. 1985). We review a district court’s award or denial of attorney’s fees in an ERISA

action for an abuse of discretion. Shelby Cnty. Health Care Corp. v. Majestic Star Casino, 581 F.3d

355, 376 (6th Cir. 2009). “An abuse of discretion exists only when the court has the definite and

firm conviction that the district court made a clear error of judgment in its conclusion upon weighing

relevant factors.” Id. (alterations and internal quotation marks omitted); see also Maker’s Mark

Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 424 (6th Cir. 2012) (“Generally, finding an

abuse of discretion would require the lower court ignoring the criteria set by the Sixth Circuit or

otherwise a certainty on this Court’s part that a clear error in judgment was committed.”) (alterations

and internal quotation marks omitted).

       The Supreme Court’s decision in Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 130

S.Ct. 2149 (2010), clarified that a fee claimant need not be a “prevailing party” to be eligible for

attorney’s fees under ERISA’s fee-shifting statute. Eligibility for attorney’s fees merely requires

that the claimant have achieved “some degree of success on the merits.” Id. at 2158. Here, the

district court concluded, and both sides concur, that Geiger achieved “some degree of success on

the merits.”




court took full briefing on the issue of attorney’s fees and issued a written decision, from which
Geiger appeals. Thus, even though the district court “denied” Geiger’s motion to reopen—perhaps
because the case appears to have remained open on the court’s docket through the filing of the
motions to reopen and for attorney’s fees—the denial did not truncate consideration of the motion
for attorney’s fees.
        Even under this more relaxed threshold for eligibility, Geiger must demonstrate her

entitlement to attorney’s fees. See Foltice v. Guardsman Products, Inc., 98 F.3d 933, 936 (6th Cir.

1996) (citing Armistead v. Vernitron Corp., 944 F.2d 1287, 1301–02 (6th Cir. 1991)) (“[O]ur circuit

recognizes no presumption as to whether attorney’s fees will be awarded” to the prevailing party in

an ERISA action.). To determine whether Geiger should be awarded fees, the district court properly

considered the following five factors set forth in Secretary of Department of Labor v. King:

        (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing
        party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an
        award on other persons under similar circumstances; (4) whether the party requesting
        fees sought to confer a common benefit on all participants and beneficiaries of an
        ERISA plan or resolve significant legal questions regarding ERISA; and (5) the
        relative merits of the parties’ positions.

775 F.2d at 669. The King factors—as they have been dubbed in this Circuit—are not statutory and

thus should be viewed flexibly, with no one factor being “necessarily dispositive.” Foltice, 98 F.3d

at 937 (quotation omitted). The parties dispute only factors one, three, and five in this appeal. The

district court concluded, and the parties agree, that Cigna could satisfy an award of attorney’s fees,

which weighs in Geiger’s favor, and that the common benefit factor cuts Cigna’s way.

        In its decision, the district court outlined the applicable law and provided an explanation as

to each factor. As to the first factor, the district court concluded that nothing in the record indicated

any culpability or bad faith by Cigna. In reaching this conclusion, the district court noted that

Cigna’s decision was understandable “in light of the evidence of Plaintiff’s farming and competitive

horseback riding.” The court also noted that Cigna was not solely responsible for the lack of

evidence in the record; Geiger bore the burden of proving entitlement to benefits, and her counsel

could have supplemented the record prior to the court’s determination. Additionally, in its remand

order, the district court specifically found no evidence of bias on the part of Cigna.
       Geiger focuses on the “degree of culpability or bad faith” factor and argues that the district

court’s finding that Cigna acted arbitrarily and capriciously necessarily resolves the first factor in

her favor. Geiger’s argument assumes that the requisite level of culpability or bad faith is

established any time that a district court remands an ERISA claim to address deficiencies in the

review process. But the first factor asks district courts to consider the “degree” of culpability or bad

faith, not merely whether the opposing party is culpable in any sense of the word. See Moon v.

Unum Provident Corp., 461 F.3d 639, 643 (6th Cir. 2006) (noting that an arbitrary and capricious

denial of benefits can, but “does not necessarily[,] indicate culpability or bad faith”) (quoting

Heffernan v. UNUM Life Ins. Co. of America, 101 Fed. Appx. 99, 109 (6th Cir. 2004); see also Gard

v. Blankenburg, 33 Fed. Appx. 722, 732 (6th Cir. 2002) (“Simply speaking, the necessary degree

of culpability is not established by the fact that a defendant has been found liable.”). To conclude

that the degree-of-culpability factor always favors an award of attorney fees when a case is

remanded to address an inadequate review of the record would essentially equate the first King

factor with a litigant’s degree of success on the merits. Gard, 33 Fed. Appx. at 732. The law of this

circuit makes clear that these are separate inquiries. See Ciaramitaro v. Unum Life Ins. Co. of

America, 521 Fed. Appx. 430, 436-37 (6th Cir. 2013) (quoting O’Callaghan v. SPX Corp., 442 Fed.

Appx. 180, 186 (6th Cir. 2011) (“Hardt does not change the district court’s five-factor analysis.”);

see also Foltice, 98 F.3d at 936 (6th Cir. 1996) (citing Armistead, 944 F.2d at 1301–02) (“[O]ur

circuit recognizes no presumption as to whether attorney fees will be awarded” to the prevailing

party in an ERISA action.). Here, the district court properly considered the “degree” of culpability

in light of the record presented and determined that the first factor weighed against awarding fees.

This was not an abuse of discretion.
        As to the third factor, the district court acknowledged that fee awards sometimes have a

deterrent effect on plan administrators who otherwise might not conduct a full and fair review, but

ultimately concluded that awarding fees would not have such an effect because “there is no evidence

that Defendants are highly culpable.” In reaching its conclusion, the court cited our decision in

Foltice, in which we opined that deterrence “is likely to have more significance in a case where the

defendant is highly culpable” or where “deliberate misconduct is in the offing.” 98 F.3d at 937. As

with the first factor, the district court concluded that the record did not establish a significant degree

of culpability on the part of Cigna or point to any misconduct. Again, nothing in the district court’s

analysis supplies grounds for second-guessing its discretionary decision.

        Finally, the district court found that both sides’ positions had merit and thus concluded that

the last factor also does not weigh in favor of awarding attorney’s fees. The district court recognized

that Geiger was able to overcome “the highly deferential arbitrary and capricious standard to achieve

a remand.” However, the court also noted that (1) it did not determine that Cigna’s conclusions

were incorrect and (2) the record contained conflicting evidence on the activities and duties that bore

on Geiger’s ability to work. Under these circumstances, the court did not abuse its discretion in

deciding that the final factor did not favor Geiger. See O’Callaghan, 442 Fed. Appx. at 186 (finding

no abuse of discretion where district court weighed final factor against awarding fees to the plaintiff

even though “defendant’s position was not sufficiently persuasive on the merits of this case”).

        Geiger urges a result that would essentially require a presumption in favor of attorney’s fees

to the party that achieves some success. This Circuit has explicitly rejected that position on

numerous occasions. See Shelby Cnty. Health Care Corp. v. Majestic Star Casino, 581 F.3d

355, 376-77 (6th Cir. 2009); Gaeth v. Hartford Life Ins. Co., 538 F.3d 524, 529 (6th Cir. 2008); First

Trust Corp. v. Bryant, 410 F.3d 842, 851 (6th Cir. 2005); Foltice, 98 F.3d at 936.
                                        III.

For the reasons stated above, the judgment of the district court is affirmed.
