                                                                         FILED
                           NOT FOR PUBLICATION
                                                                         NOV 27 2017
                    UNITED STATES COURT OF APPEALS                   MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FRANCISCO PONCE DE LEON aka                      No.   16-55364
FRANK PONCE DE LEON,
                                                 D.C. No. 2:13-cv-05561-DSF-
             Plaintiff-Appellant,                AGR

    v.
                                                 MEMORANDUM*
INTERNATIONAL
LONGSHOREMEN’S AND
WAREHOUSEMEN’S UNION—
PACIFIC MARITIME ASSOCIATION
WELFARE PLAN,

             Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                         Submitted November 16, 2017**
                              Pasadena, California




*This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.

** The
     panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
Before: NGUYEN and HURWITZ, Circuit Judges, and SEEBORG,*** District
Judge

      Francisco Ponce de Leon appeals a district order, denying his request for

attorneys’ fees arising out of an Employee Retirement Income and Security Act

(ERISA) benefits dispute. We affirm.

      1. The district court applied the established test for awarding attorneys’ fees

under section 502(g)(1) of ERISA, 29 U.S.C. § 1132(g)(1), which presumes that

fees should be awarded to a claimant who achieves success on the merits absent

“special circumstances” that make an award unjust. Smith v. CMTA-IAM Pension

Tr., 746 F.2d 587, 589 (9th Cir. 1984). The record supports the district court’s

conclusion that Ponce de Leon’s litigation efforts were not responsible for his

success, but were instead “trivial” and “purely procedural.” See Hardt v. Reliance

Standard Life Ins. Co., 560 U.S. 242, 255 (2010) (quoting Ruckelshaus v. Sierra

Club, 463 U.S. 680, 688 n.9 (1983)). Ponce de Leon voluntarily agreed to stay his

litigation soon after filing his complaint and before the Plan filed a responsive

pleading. Thereafter the district court played largely a passive role in Ponce de

Leon’s case—simply staying the action pursuant to the parties’ stipulation pending

resolution of the administrative claims process and then confirming an award that

had already been satisfied. Therefore, the district court made a reasonable


*** The Honorable Richard Seeborg, United States District Judge for the Northern
District of California, sitting by designation.
determination that Ponce de Leon’s successful recovery of benefits resulted from

his efforts in arbitration rather than from litigation activity.

      2. To the extent the district court denied fees because it found that Ponce de

Leon’s success on the merits in arbitration proceedings did not constitute an

“action” within the meaning of ERISA’s fee-shifting rule, this was not error. Fee

recovery under 29 U.S.C. § 1132(g)(1) is not available for pre-litigation

administrative activity. Cann v. Carpenters’ Pension Tr. Fund for N. Cal., 989

F.2d 313 (9th Cir. 1993). While fees expended on administrative proceedings after

a court-ordered remand may be recoverable, see Peterson v. Cont’l Cas. Co., 282

F.3d 112, 122 (2d Cir. 2002), the district court in this case did not compel the

parties to go to arbitration, but instead merely entered the parties’ stipulation to do

so. As a result, the district court concluded that there was no ERISA “action”

properly before the court and thus, no pending litigation onto which Ponce de Leon

could tack his administrative proceedings.

      3. Ponce de Leon argues in the alternative that regardless of whether they are

associated with litigation, the arbitration proceedings themselves should be

considered an “action” for the purposes of ERISA fee recovery. Such an

interpretation is inconsistent with our holding in Cann, which limits attorneys’ fees


                                            3
to litigation proceedings. Plaintiffs may not circumvent Cann by filing suit before

exhausting administrative remedies, in order to get the benefit of fee recovery.




      AFFIRMED.




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