                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 25 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DEBRA HERRMAN,                                  No.    19-35182

                Plaintiff-Appellant,            D.C. No. 3:17-cv-01336-MO

 v.
                                                MEMORANDUM*
LIFEMAP ASSURANCE COMPANY,

                Defendant-Appellee.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                             Submitted May 15, 2020**
                                Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,*** District
Judge.

      Debra Herrman appeals the district court’s denial of her motion for

attorney’s fees. We reverse and remand with instructions to reconsider Herrman’s


      *
             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).
      ***
            The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
fee motion under the correct legal standard.

      1. Title 29 U.S.C. § 1132(g)(1) provides that the district court may, in its

discretion, award attorney’s fees to either party in certain types of ERISA actions.

To guide the exercise of this discretion, we have instructed that district courts

should consider the five so-called Hummell factors. Simonia v. Glendale

Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1121 (9th Cir. 2010) (citing

Hummell v. S. E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980)). In many cases,

we have also applied a rule that a prevailing ERISA beneficiary “should ordinarily

recover an attorney's fee unless special circumstances would render such an award

unjust.” Smith v. CMTA-IAM Pension Tr., 746 F.2d 587, 589 (9th Cir. 1984)

(internal quotation marks omitted).

      Our cases do not make entirely clear how the Hummell factors and the

“prevailing beneficiary” rule interact in all cases. But at a minimum, when an

ERISA beneficiary obtains a full recovery of benefits owed or otherwise prevails

entirely, the district court abuses its discretion if it denies fees by merely applying

the Hummell factors, without identifying “special circumstances” that would

render a fee award unjust. See Carpenters Health & Welfare Tr. for S. Cal. v.

Vonderharr, 384 F.3d 667, 674 (9th Cir. 2004); McConnell v. MEBA Med. &

Benefits Plan, 778 F.2d 521, 525 (9th Cir. 1985); see also McElwaine v. US W.,

Inc., 176 F.3d 1167, 1173 (9th Cir. 1999) (per curiam). Indeed, the presumption in


                                           2
favor of fees in such cases means that the district court need not discuss the

Hummell factors at all before granting the motion. See Grosz-Salomon v. Paul

Revere Life Ins. Co., 237 F.3d 1154, 1164 (9th Cir. 2001); Nelson v. EG & G

Energy Measurements Grp., Inc., 37 F.3d 1384, 1392 (9th Cir. 1994).

      Herrman obtained a full recovery of benefits, but the district court denied

fees by merely applying the Hummell factors, without analyzing whether special

circumstances existed that would make a fee award unjust. Accordingly, it applied

the wrong legal standard. See Micha v. Sun Life Assurance of Can., Inc., 874 F.3d

1052, 1057 (9th Cir. 2017).

      2. The Supreme Court’s decision in Hardt v. Reliance Standard Life Ins.

Co., 560 U.S. 242 (2010), does not disturb this analysis. Hardt addressed a

different question under section 1132(g)(1)—whether a party who is not a

“prevailing party,” but who nonetheless achieves some degree of success on the

merits, can obtain a fee award—and expressly declined to overturn circuit

precedents discussing factors that guide the district court’s exercise of discretion.

Id. at 255 n.8. Our precedent guiding district court discretion in cases where a

beneficiary has obtained a full recovery of benefits is thus not “clearly

irreconcilable” with Hardt. See Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir.

2012).

      3. Herrman is entitled to an award of attorney’s fees for this appeal, in an


                                           3
amount to be determined by the district court upon remand. See Bos. Mut. Ins. v.

Murphree, 242 F.3d 899, 904 (9th Cir. 2001). We view our conclusion that

Herrman is entitled to fees for her successful appeal as separate from the question

whether special circumstances exist that would render a fee award for the district

court phase of the litigation unjust. That is a question for the district court to decide

on remand.

      REVERSED AND REMANDED.




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                                                                                     FILED
Herrman v. LifeMap, 19-35182                                                          JUN 25 2020
VanDyke, J., dissenting.                                                          MOLLY C. DWYER, CLERK
                                                                                   U.S. COURT OF APPEALS

       Smith v. CMTA-IAM Pension Trust, 746 F.2d 587 (9th Cir. 1984) imposes a

requirement in ERISA cases that courts in our circuit must award attorney’s fees to

a prevailing ERISA beneficiary “unless special circumstances would render such an

award unjust.” Id. at 589. I think the panel majority correctly applies the Smith

requirement in this case, and so would join its well-reasoned decision if I thought

Smith was reconcilable with Hardt v. Reliance Standard Life Insurance Co., 560

U.S. 242 (2010). But I don’t. And because Hardt post-dates Smith and I am not

aware of any binding opinion from this court that has applied the Smith presumption

since Hardt, I think the Smith requirement falls with our court’s rule that we are not

bound by circuit precedent that is “clearly inconsistent” with intervening higher

precedent. Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012). Without the

distorting influence of the Smith requirement, I would affirm the district court’s

application of the Hummell factors in this case.1

       In Hardt, the Supreme Court observed that the text of Section 1132(g)(1)

“unambiguously allows a court to award attorney fees ‘in its discretion … to either

party.’” 560 U.S. at 254 (quoting 29 U.S.C. § 1132(g)(1)). The Court noted that



1
  I don’t read the panel majority as concluding that the district court abused its discretion in how
it applied the Hummell factors—only that it erroneously failed to also apply Smith’s “special
circumstances” presumption.



                                                 1
“[t]he words ‘prevailing party’ do not appear” in ERISA’s fee-shifting statute, id. at

252, and distinguished ERISA’s fee-shifting authority from other statutes requiring

an award of fees to the “prevailing party,” explaining that “‘prevailing party’

precedents … do not govern the availability of fees awards under § 1132(g)(1).” Id.

at 251. The Court also emphasized that Section 1132(g)(1) “vest[s] judges with such

broad discretion” when determining whether to award fees. Id. at 254.

       Smith, in contrast, treats Section 1132(g)(1) like a civil rights fee-shifting

statute where the prevailing party must get attorney’s fees absent special

circumstances. See Smith, 746 F.2d at 589 (“As in cases involving section 1988

awards, a district court considering a motion for attorney’s fees under ERISA should

apply its discretion consistent with the purposes of ERISA, those purposes being to

protect employee rights and to secure effective access to federal courts.”) (emphasis

added). 2 Smith’s rule removes all discretion from judges in the Ninth Circuit

whenever an ERISA beneficiary is a “prevailing party,” requiring our courts to

award fees absent special circumstances. This is just a “prevailing party” fee rule

by another name—exactly what the Supreme Court in Hardt disavowed. Indeed, in


2
  Notably, Smith’s “special circumstances” rule is not only inconsistent with subsequent Supreme
Court authority; it is no longer even supported by the out-of-circuit precedent that it was originally
based on. See Smith, 746 F.2d at 589 (quoting Landro v. Glendenning Motorways, Inc., 625 F.2d
1344, 1356 (8th Cir. 1980), overruled by Martin v. Ark. Blue Cross and Blue Shield, 299 F.3d 966,
971–72 (8th Cir. 2002)). In overturning Landro, the Eighth Circuit acknowledged that “ERISA
does not closely correspond with the fee-shifting scheme in the civil rights statutes[; i]nstead,
ERISA’s language is neutral in its reference to fees ….” Martin, 299 F.3d at 971.




                                                  2
describing the “prevailing party” fee standard, the Supreme Court has used precisely

the same “special circumstances” language that Smith used to describe ERISA’s fee-

shifting requirements. See, e.g., Newman v. Piggie Park Enters., Inc., 390 U.S. 400,

402 (1968) (“It follows that one who succeeds in obtaining an injunction under [Title

II of the Civil Rights Act of 1964] should ordinarily recover an attorney’s fee unless

special circumstances would render such an award unjust.”) (emphasis added).

      Because Smith’s rule, borrowed from the “prevailing party” fee-shifting

context, is inconsistent with Hardt’s clarification that Section 1132(g)(1) should not

be treated like a prevailing party statute, I would affirm the district court. I therefore

respectfully dissent.




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