                Reversed by Supreme Court, May 24, 2010



                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-1896


BRIDGET HARDT,

                  Plaintiff − Appellee,

           v.

RELIANCE STANDARD LIFE INSURANCE COMPANY,

                  Defendant – Appellant,

           and

DAN RIVER GROUP LONG−TERM DISABILITY PLAN,

                  Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cv-00105-JBF-JEB)


Argued:   March 25, 2009                     Decided:   July 14, 2009


Before WILLIAMS, Chief Judge, 1 WILKINSON, Circuit Judge,         and
David A. FABER, Senior United States District Judge for           the
Southern District of West Virginia, sitting by designation.



     1
       Chief Judge Williams heard oral argument in this case but
did not participate in the decision. The decision is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Vacated by unpublished per curiam opinion.


ARGUED: Joshua Bachrach, WILSON, ELSER, MOSKOWITZ, EDELMAN &
DICKER, LLP, Philadelphia, Pennsylvania, for Appellant.    Ann
Sullivan, CRENSHAW, WARE & MARTIN, PLC, Norfolk, Virginia, for
Appellee.   ON BRIEF: Elaine Kathryn Inman, CRENSHAW, WARE &
MARTIN, PLC, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Reliance     Standard      Life   Insurance      Company      (“Reliance”)

appeals an award of attorney’s fees to Bridget Hardt, arguing

that the district court’s remand of Hardt’s claim for long-term

disability benefits to Reliance for additional consideration did

not make Hardt a prevailing party for purposes of an attorney’s

fees award.       We agree, and for the reasons below, we vacate the

award of attorney’s fees to Hardt.



                                         I.

       In 2000, Hardt was employed as an executive assistant to

the president of Dan River Inc., a textile manufacturer.                      During

that    year,     Hardt   began    experiencing     pain    in     her     neck    and

shoulders; she was diagnosed with carpal tunnel syndrome ("CTS")

and underwent surgery on both of her wrists.                     Hardt continued

experiencing pain, however, and stopped working on January 23,

2003.

       In August 2003, Hardt requested that Reliance pay her long-

term    disability    benefits     pursuant    to   Dan    River    Inc.’s        Group

Long-Term       Disability     Insurance      Program     Plan     (“the     Plan”).

Pursuant to the terms of the Plan, Dan River administers the

Plan, but Reliance underwrites the Plan and decides whether a

particular individual is entitled to benefits. In response to

Hardt’s request, Reliance notified Hardt that she was required

                                         3
to   submit    to   a   functional    capacities         evaluation       ("FCE")       and

granted her a provisional approval.

      Hand Rehabilitation of Hampton Roads administered the FCE

to Hardt in October 2003.             The evaluator concluded that Hardt

suffered      the   following   major    limitations:              neck      and    upper

extremity     pain,     decreased    right    hand       dexterity     and    strength,

restricted overhead reach, a restricted ability to squat and

kneel, the inability to crawl or to climb ladders, and decreased

lift, carrying, and push and pull capabilities.                           In December

2003, Reliance denied Hardt’s claim, concluding that she did not

meet the Plan’s definition of total disability. Pursuant to the

terms of the Plan, Hardt appealed this decision, and Reliance

reversed its original decision so that Hardt ultimately received

temporary disability benefits for twenty-four months.

      In the meantime, Hardt was also diagnosed with hereditary

small-fiber     neuropathy, 2   and     her       pain    became    worse     over      the

following      months.     In   addition          to     other     symptoms,        Hardt

experienced     burning     sensations       in    her    feet   and    pain       in   her

calves, making walking difficult.




      2
        Small-fiber neuropathy is a disorder involving small
sensory cutaneous nerves.   Symptoms include tingling; numbness;
burning pain or extreme coldness; brief, painful sensations; and
loss of temperature sensation.



                                         4
      Hardt applied to the Social Security Administration ("SSA")

for       disability        insurance        benefits           and        submitted          two

questionnaires         completed       by    her        treating          physicians         that

concluded she could not return to her prior position or other

sedentary        positions      because      of        her     neuropathy          and     other

maladies.        The SSA found that Hardt was "disabled" under the

Social Security Act because she was unable to return to her

former employment or make an adjustment to perform other work.

      A    few     months    later,     Reliance         notified          Hardt    that     her

benefits     would     expire     at   the       end    of     the    twenty-four          month

period. The Plan provided benefits after twenty-four months only

to individuals totally disabled from all occupations.                                 Reliance,

having reviewed the medical documentation in Hardt’s file and a

Residual     Employability        Analysis        that        found       she   had      several

employment opportunities still available, found that Hardt was

not totally disabled under the Plan.

      Hardt again appealed this denial of her claim to Reliance

and, in support of her claim, submitted her medical records, the

SSA questionnaires completed by her treating physicians, and an

updated questionnaire from one of those physicians that again

opined     Hardt    would    be   unable      to       maintain       a    job.       Reliance

requested that Hardt complete an updated FCE before making a

final     decision     on   her   claim,      but       did    not    request         that   the

testing company review Hardt for neuropathic pain.

                                             5
       Hardt underwent the updated FCE on December 29, 2005 and a

second updated FCE on January 26, 2006, but the results of both

examinations were considered invalid by the examiners because

Hardt's effort was submaximal. Specifically, one examiner noted

that     Hardt       "refused        multiple         tests    .    .    .     for    fear     of

nausea/illness/further pain complaints."                       (J.A. at 475.)

       Reliance       then     hired       Dr.    Michael     Leibowitz,        who    reviewed

only    some     of        Hardt’s    medical         records.      In   his    report,      Dr.

Leibowitz does not mention any of the pain medications Hardt was

taking     or        the     treating       physicians’          questionnaires.             Dr.

Leibowitz ultimately concluded that Hardt’s health was expected

to improve.            Reliance also hired a vocational rehabilitation

counselor       to    determine       if    any       jobs   existed     that    Hardt    could

perform.    That       labor     market      study       identified      eight       employment

opportunities suitable for Hardt, but the study was based on

Hardt’s health in 2003.

       On March 27, 2006, Reliance advised Hardt that, based on

its review of her file, she was still ineligible to receive

long-term disability benefits. Reliance’s decision was based on

the FCEs, Dr. Leibowitz’s report, and the labor market study.

       Hardt     exhausted       her       administrative          remedies     and    filed   a

complaint in the United States District Court for the Eastern

District of Virginia, alleging that Reliance violated ERISA by

wrongfully       denying        her    long-term         disability       benefits.          The

                                                  6
district          court       denied       both     parties’       motions          for     summary

judgment, but remanded Hardt’s claim to Reliance Standard for

reconsideration.              In remanding Hardt’s claim, the district court

stated that if Reliance did not adequately consider all of the

evidence discussed in its opinion within 30 days of the date the

opinion was issued, “judgment will be issued in favor of Ms.

Hardt.”          (J.A. at 65.)

       On    remand,          Hardt      provided      additional        medical       records     to

Reliance for its consideration, and Reliance ultimately reversed

its earlier decision and awarded Hardt full long-term disability

benefits until her sixty-sixth birthday, as well as retroactive

benefits         for    the     time     already       elapsed.       Hardt         then   filed    a

motion for attorney’s fees and costs in the district court based

upon       her    status      as    the    prevailing         party. 3        See     29   U.S.C.A.

§ 1132(g)(1)            (West      2009)    (providing         that      “the    court      in   its

discretion may allow a reasonable attorney’s fee and costs of

action to either party.).                   The district court granted her motion

on   August        7,    2008,      concluding         that    “the      court      sanctioned      a

material         change    in      the    legal     relationship         of     the    parties     by


       3
       This case was originally heard by the Honorable Walter D.
Kelley,   who   remanded   the  case   back   to  Reliance   for
reconsideration, and who resigned effective May 16, 2008. Upon
Judge Kelley’s resignation, the case was transferred to the
Honorable Jerome B. Friedman, who heard and ruled upon Hardt’s
motion for attorney’s fees.



                                                   7
ordering       [Reliance]      to    conduct       the    type       of   review   to   which

[Hardt] was entitled,” and that because, “on remand, [Hardt]

received precisely the benefits she had sought, she meets the

definition of a ‘prevailing party’ and is eligible for an award

of attorneys’ fees.”                (J.A. at 79.)              The district court thus

awarded Hardt $39,149.00 in fees, and Reliance timely appealed.

We have jurisdiction pursuant to 28 U.S.C.A. § 1291 (West 2006).



                                           II.

        We review de novo the district court’s determination that

Hardt        was    a    “prevailing    party”           for       purposes   of    awarding

attorney’s fees.            See Goldstein v. Moatz, 445 F.3d 747, 751 (4th

Cir. 2006) (performing de novo review of whether applicant for

attorney’s fees was a prevailing party under EAJA). 4

                                           A.

        It    is     well    settled    that       “only       a    prevailing     party   is

entitled       to       consideration    for       attorneys’         fees    in   an   ERISA

action.”           Martin v. Blue Cross & Blue Shield of Va., Inc., 115

F.3d 1201, 1210 (4th Cir. 1997).                    To be a prevailing party, “a

plaintiff [must] receive at least some relief on the merits of

        4
         Fee-shifting  provisions   are  generally   interpreted
consistently. See Buckhannon Bd. & Care Home v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 603 n.4 (2001), and Griggs v.
E.I. DuPont de Nemours & Co., 385 F.3d 440, 454 (4th Cir. 2004)
(applying Buckhannon to ERISA claims).



                                               8
his [or her] claim.”              Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t       of    Health     &   Human     Res.,       532    U.S.   598,   603    (2001)).

“[E]ven an award of nominal damages suffices under this test.”

Id.    at    604.      The   Supreme       Court       has,   however,      established   a

bright-line boundary on what constitutes “relief on the merits”

of a particular claim: only “enforceable judgments on the merits

and court-ordered consent decrees create the material alteration

of the legal relationship of the parties necessary to permit an

award       of    attorney’s          fees.”         Buckhannon,     532    U.S.   at    604

(internal quotation marks omitted).

       In     Goldstein,         we    clarified       this   Buckhannon      standard    by

holding that there is no exception for “tactical mooting” - the

situation where a defendant chooses to settle rather than risk

an    award       of   attorney’s       fees.         Goldstein,     445    F.3d   at   752.

Although         Buckhannon       does     not       specifically     address      tactical

mooting, we explained in Goldstein that “[t]he Supreme Court in

Buckhannon . . . did not leave the door ajar for an inferior

court to engraft a broad tactical mooting exception onto its

ruling . . . [and the Court instead] concluded that tactical

mooting          concerns    are       simply        insufficient     to    overcome     the

statutory requirement that a party applying for a fees and costs

award must first have been accorded some relief in the district

court.”          Id.   In Goldstein, however, we left open the question

of “whether there is an exception to the Buckhannon rule where a

                                                 9
defendant has agreed to provide the relief requested in response

to an affirmative indication by the presiding court that the

plaintiff is about to prevail.”         Id.

      In this case, the district court determined that Hardt was

a prevailing party based upon a previous remand order.                     That

order   denied     both    cross-motions      for   summary   judgment      but

required Reliance to reconsider Hardt’s claim within 30 days and

stated that if Reliance did not comply, “judgment will be issued

in favor of Ms. Hardt.”         (J.A. at 65.)       Although the district

court, reviewing the earlier remand order, noted that at the

time the case was remanded, it had been “inclined to reserve

judgment and permit [Reliance] to conduct a proper review of all

of the medical evidence” and explained that “[h]ad [Reliance]

completed its review in the manner ordered by the court and in

the prescribed time period, and again determined that [Hardt]

was not eligible for benefits, it is certainly possible that the

court would have found the result satisfactory,” (J.A. at 77),

the district court found Hardt to be a prevailing party because,

“on   remand,    [Hardt]   received    precisely    the   benefits   she    had

sought,”   (J.A. at 79).      As the district court explained, “[t]he

defendant, under threat of judgment against it, reversed its

decision and chose to award the plaintiff the precise relief she

was seeking.”     (J.A. at 77.)       In the district court’s view, this



                                      10
“[c]learly” constituted “judicially sanctioned relief.” (J.A. at

77.)

                                         B.

       On appeal, Reliance contends that, at best, this is a case

of “tactical mooting” and that there was no enforceable judgment

on   the    merits   or    judicially    sanctioned    relief.        We    agree.

Hardt’s case presents a set of circumstances that, like those

presented in Goldstein, are “simply insufficient to overcome the

statutory requirement that a party applying for a fees and costs

award must first have been accorded some relief in the district

court.”     Goldstein, 445 F.3d at 752.

       Hardt attempts to fit her case within the question we left

open   in   Goldstein,      but   that   opening   provides    her   no    relief.

Hardt’s case simply does not present the type of affirmative

indication contemplated by Goldstein.              On remand, the district

court required Reliance to provide Hardt with an appropriate

review of her claim; it gave no indication that Hardt was “about

to   prevail.”       Id.      Had   Reliance   continued      to   refuse   Hardt

complete disability benefits after further review, Hardt would

have had the opportunity to bring the decision back before the

district court, at which time the court could rule on the merits

of the claim.         Because it did not require Reliance to award

benefits to Hardt, however, the remand does not constitute an



                                         11
“enforceable judgment[] on the merits” as Buckhannon requires.

532 U.S. at 604.

      To avoid this result, Hardt points to two district court

cases    in   which      a    party     was   awarded       attorney’s        fees    after     a

remand to a plan administrator: Clark v. Metro Life Ins. Co.,

384 F. Supp. 2d 894 (E.D. Va. 2005), and Christian v. DuPont-

Waynesboro Health Care Coverage Plan, 12 F. Supp. 2d 535 (W.D.

Va.   1998).          Even      assuming      these        cases   are      consistent      with

Buckhannon, they do not aid Hardt.                     In each of those cases, the

plaintiff      included        a   second      count       alleging      procedural      error

under    ERISA    and        requesting       remand       as   the    appropriate       legal

relief.       Thus, by remanding the case, the district court in

those    cases    was        providing    the       very    relief     requested       by     the

complaint.       Hardt, however, did not include such a count in her

complaint.

        Because (1) Hardt’s only request for relief was the award

of benefits, which the district court did not award, and (2) the

district court’s remand order did not satisfy the requirements

of    Buckhannon      or      Goldstein,        Hardt       does      not    qualify     as    a

prevailing       party       and   is   thus    not     eligible       for     an    award     of

attorney’s fees.




                                               12
                         III.

For the foregoing reasons, Hardt’s attorney’s fees award is

                                                    VACATED.




                          13
