                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-1132



TRUSTEES OF THE PLUMBERS      AND   PIPEFITTERS
NATIONAL PENSION FUND,

                                               Plaintiff - Appellee,

          versus


VIRGINIA ROSE SPRAGUE,

                                              Defendant - Appellant,

          and


BESSIE GENEVA SAXON,

                                                           Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:06-cv-00903-LMB)


Submitted:   September 21, 2007           Decided:   October 16, 2007


Before WILKINSON and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Virginia Rose Sprague, Appellant Pro Se.     John Robert Harney,
O’DONOGHUE & O’DONOGHUE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          Virginia Rose Sprague appeals from the district court’s

order granting the motion for summary judgment filed by the Board

of Trustees of the Plumbers and Pipefitters National Pension Fund

(“Trustees”) in this interpleader action and requiring Sprague to

pay the Trustees’ fees and costs.   We have reviewed the record and

find no reversible error in the district court’s finding that the

pension benefits at issue were properly paid to Bessie Saxon rather

than Virginia Sprague.   Accordingly, we affirm that ruling for the

reasons stated by the district court.        See Bd. of Trs. of the

Plumbers and Pipefitters Nat’l Pension Fund v. Saxon, No. 1:06-cv-

00903-LMB (E.D. Va. Jan. 5, 2007). However, for the reasons stated

below, we vacate the district court’s order requiring Sprague to

reimburse the Trustees for their attorney’s fees and costs.

          In awarding attorney’s fees, the district court relied

primarily on its discretionary authority to reimburse a plaintiff’s

fees and costs in an interpleader action.*    Despite the lack of an


     *
      The district court, in the alternative, ordered Sprague to
reimburse the Trustees’ expenses pursuant to 29 U.S.C. § 1132(g)(1)
(2000), which provides that in an action under the Employee
Retirement Income Security Act of 1974, (“ERISA”), a “court in its
discretion may allow a reasonable attorney’s fee and costs of
action to either party.”      This court has held that only a
prevailing party is entitled to consideration for attorney’s fees
in an ERISA action. Martin v. Blue Cross & Blue Shield of Va.,
Inc., 115 F.3d 1201, 1210 (4th Cir. 1997).
     To qualify as a “prevailing party,” a plaintiff must “receive
at least some relief on the merits of his claim before he can be
said to prevail . . . even an award of nominal damages suffices
under this test.” Griggs v. E.I. DuPont de Nemours & Co., 385 F.3d

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express reference in the federal interpleader statute to costs or

attorney’s fees, federal courts have held that it is proper for an

interpleader plaintiff to be reimbursed for costs associated with

bringing the action forward.   See First Trust Corp. v. Bryant, 410

F.3d 842, 856 (6th Cir. 2005) (noting that courts have relied on

federal interpleader statute, 28 U.S.C. § 2361, as a basis for fee

recovery); see also Trs. of Directors Guild of America - Producer

Pension Benefits Plans v. Tise, 234 F.3d 415, 426-27 (9th Cir.

2000); Rhoades v. Casey, 196 F.3d 592, 603 (5th Cir. 1999);

Septembertide Publ’g, B.V. v. Stein and Day, Inc., 884 F.2d 675,

683 (2d Cir. 1989); Prudential Ins. Co. of America v. Boyd, 781

F.2d 1494, 1497-98 (11th Cir. 1986); Ferber Co. v. Ondrick, 310

F.2d 462, 467 (1st Cir. 1962).

          While an interpleading plaintiff may be reimbursed for

its costs at the district court’s discretion, we find that the

award in this case was in error.    Specifically, the district court

held Sprague liable for reimbursement of the Trustees’ attorney’s

fees and costs.   While some courts have held that losing parties


440, 454 (4th Cir. 2004) (quotation and citation omitted). In this
case, the Trustees filed a complaint in interpleader, stating that
they were an innocent stakeholder with no claim to the benefits at
issue. Even though the district court granted the Trustees’ motion
for summary judgment, the only party that directly benefitted from
that decision was Bessie Saxon; the Trustees merely continued to
pay her monthly benefits as they had previously.       Because the
Trustees received no relief or benefit as a result of the district
court’s ruling, they cannot be deemed a “prevailing party” and
therefore cannot recover their attorney’s fees and costs under
§ 1132(g)(1).

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can be held responsible for the interpleading plaintiff’s fees and

costs, this option has been applied only “when their conduct

justifies it.”     See Septembertide, 884 F.2d at 683 (citing Boyd,

781 F.2d at 1498).      Even if we were to conclude that a losing party

could be held accountable for the interpleading plaintiff’s costs,

there would be insufficient grounds for imposing such liability in

this case.      The district court held that Sprague “unnecessarily

forced” the Trustees to bring this interpleader action, and that

following her initial objection, she failed to take further action

to support her claims, outside of a “pro forma answer to the

interpleader     action      and   an   affidavit        restating     her   initial

assertions.” However, we cannot conclude that Sprague’s conduct in

this matter constituted bad faith, fraud, or otherwise justified an

award of attorney’s fees.          See Wheeler v. Dynamic Eng’g, Inc., 62

F.3d 634, 641 (4th Cir. 1995) (mere negligence or error does not

constitute bad faith in determining whether to award attorney’s

fees).    Sprague filed an answer to the interpleader complaint, and

following the Trustees’ motion for summary judgment, filed an

affidavit that reiterated why she believed she was entitled to the

pension   benefits.       Additionally,         in   a   letter   to   the   parties

regarding their final decision on the benefits, the Trustees

recognized that a court could be persuaded by Sprague’s claim that

her 1984 divorce decree and property settlement agreement required

the   pension    fund   to    treat     her     as   the   pension     beneficiary.


                                        - 5 -
Considering that the Trustees’ own ruling indicated to Sprague that

her claim might have merit, it does not appear that Sprague

“unnecessarily     forced”    the   Trustees   to    bring    an   interpleader

action.       Therefore, we hold that Sprague should not be held

responsible for the Trustees’ attorney’s fees or costs.

              We note that fee awards are generally drawn from the

interpleaded fund itself, not from the losing party, see Bryant,

410 F.3d at 856; Tise, 234 F.3d at 427; Septembertide Publ’g, B.V.,

884 F.2d at 683; Boyd, 781 F.2d at 1498; Ferber Co., 310 F.2d at

467, and that, in this case, the Trustees’ motion for summary

judgment specifically requested that the fees be drawn from the

interpleaded funds, not from Sprague.              We leave for the district

court on remand the question of whether the Trustees are entitled

to recover fees and costs from the interpleaded fund itself.

              Accordingly, we affirm the district court’s grant of

summary judgment upholding the Trustees’ award of benefits to

Saxon, vacate the order requiring Sprague to reimburse the Trustees

for   their    attorney’s    fees   and   costs,    and   remand   for   further

proceedings consistent with this opinion.              We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                             AFFIRMED IN PART,
                                                              VACATED IN PART,
                                                                  AND REMANDED


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