FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALECK SIMONIA,
Plaintiff-Appellant,
v. No. 09-56025
GLENDALE NISSAN/INFINITI D.C. No.
2:07-cv-08090-VBK
DISABILITY PLAN, an ERISA plan;
THE HARTFORD INSURANCE OPINION
COMPANY, a corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Victor B. Kenton, Magistrate Judge, Presiding
Submitted June 17, 2010*
Pasadena, California
Filed June 24, 2010
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and Joan Humphrey Lefkow,
District Judge.**
Opinion by Judge Tallman
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Joan Humphrey Lefkow, United States District Judge
for the Northern District of Illinois, sitting by designation.
9249
9252 SIMONIA v. GLENDALE NISSAN/INFINITI
COUNSEL
Charles Fleishman, Esq., and Paul Fleishman, Esq., The
Fleishman Law Firm, Northridge, California, for plaintiff-
appellant Aleck Simonia.
Daniel W. Maguire, Esq., Burke, Williams & Sorensen, Los
Angeles, California, for defendants-appellees Glendale Nis-
san/Infiniti Disability Plan and the Hartford Insurance Com-
pany.
OPINION
TALLMAN, Circuit Judge:
Plaintiff-Appellant Aleck Simonia appeals the district
court’s denial of his motion for attorney’s fees under the
Employee Retirement Income Security Act of 1974
(“ERISA”). See 29 U.S.C. § 1132(g). We affirmed the district
court’s grant of summary judgment in favor of his former
employer’s health care plan in Simonia v. Glendale Nis-
san/Infiniti Disability Plan, No. 09-55569, 2010 WL 1896455
(9th Cir. May 12, 2010). We stayed consideration of his attor-
ney’s fee appeal pending the Supreme Court’s disposition of
Hardt v. Reliance Standard Life Insurance Co., ___ S. Ct.
___, No. 09-448, 2010 WL 2025127, at *3 (May 24, 2010).
District courts must now determine whether an ERISA fee
claimant has achieved “some degree of success on the merits”
before awarding fees under § 1132(g). Id. But the Supreme
Court expressly declined to foreclose the possibility that, once
a court has determined that a litigant has achieved some
SIMONIA v. GLENDALE NISSAN/INFINITI 9253
degree of success on the merits, it may then evaluate the tradi-
tional five factors under Hummell v. S.E. Rykoff & Co., 634
F.2d 446 (9th Cir. 1980), before exercising its discretion to
grant fees. See Hardt, ___ S. Ct. ___, 2010 WL 2025127, at
*9 n.8.
Because we continue to believe that “district courts should
have guidelines to apply in the exercise of their discretion
under § 1132(g),” Hummell, 634 F.2d at 453, we hold that
district courts must consider the Hummell factors after they
have determined that a litigant has achieved “some degree of
success on the merits,” Hardt, ___ S. Ct. ___, 2010 WL
2025127, at *3. Even assuming Simonia achieved some
degree of success on the merits, we agree with the district
court’s conclusion that fees are nonetheless inappropriate
after applying the Hummell factors. We therefore affirm the
denial of fees to Simonia.
I
Simonia became physically disabled on April 8, 2003, as
the result of a herniated lumbar disc. On that date, Simonia
possessed disability insurance under his employer’s ERISA
plan, which was insured by the Continental Casualty Com-
pany (“Continental”). Shortly thereafter, Continental began
paying Simonia disability insurance benefits. On November
30, 2003, the Hartford Insurance Company (“Hartford”)
bought Simonia’s policy from Continental and began paying
Simonia’s benefits.
On April 19, 2007, Hartford determined that Simonia was
no longer disabled due to a physical disability but was instead
disabled based on a mental disorder subject to his ERISA
plan’s twelve-month payment limit. On April 27, 2007, Hart-
ford was informed that Simonia had been awarded $1,551 per
month in Social Security Disability Insurance (“SSDI”) bene-
fits retroactively, effective October 1, 2004, which—when
combined with other forms of income—allegedly should have
9254 SIMONIA v. GLENDALE NISSAN/INFINITI
been offset to some extent against his payments from Hart-
ford. Hartford retroactively recalculated Simonia’s benefits
and determined that Simonia had allegedly been overpaid by
$22,309.51.
On May 18, 2007, Hartford informed Simonia that (1) he
would no longer be receiving payments for a physical disabil-
ity, but rather for a mental disability subject to the plan’s
twelve-month mental disorder limitation, and (2) he had been
overpaid by $22,309.51 and would not be receiving any fur-
ther benefits until Hartford received a personal check or
money order in that amount.
II
Simonia filed his declaratory judgment lawsuit on Decem-
ber 12, 2007, challenging Hartford’s classification of his dis-
ability as a mental disorder subject to the plan’s twelve-month
payment limit. Hartford counterclaimed for $8,589—the
amount Simonia had allegedly been overpaid based on his
retroactive SSDI benefits less the amount recouped by with-
holding twelve months’ worth of Simonia’s mental disorder
payments.
On October 16, 2008, Simonia informed Hartford that the
Social Security Administration had retroactively reduced his
SSDI award, and he requested that Hartford recalculate the
alleged overpayment. On December 5, 2008, the parties set-
tled the counterclaim and stipulated to its dismissal. Simonia
did not prevail in his claims against Hartford for continuing
benefits. Simonia thereafter filed a motion seeking $63,745 in
attorney’s fees because he “was successful as a counter-
defendant in that the defendant dismissed its counterclaim.”
The district court, applying the five factors in Hummell,
634 F.2d at 453, denied the motion for fees. Simonia timely
appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
SIMONIA v. GLENDALE NISSAN/INFINITI 9255
III
[1] In an ERISA action, “the court in its discretion may
allow a reasonable attorney’s fee and costs of action to either
party.” 29 U.S.C. § 1132(g)(1). In Hardt, the Supreme Court
held that “a fee claimant need not be a ‘prevailing party’ to
be eligible for an attorney’s fees award under § 1132(g)(1).”
___ S. Ct. ___, 2010 WL 2025127, at * 7. Instead, the Court
reasoned that Ruckelshaus v. Sierra Club, 463 U.S. 680, 694
(1983), governs, and that “a fees claimant must show ‘some
degree of success on the merits’ before a court may award
attorney’s fees under § 1132(g)(1).” Hardt, ___ S. Ct. ___,
2010 WL 2025127, at *9 (quoting Ruckelshaus, 463 U.S. at
694).
[2] The Court noted that a claimant does not satisfy that
requirement by achieving a “ ‘trivial success on the merits’ or
a ‘purely procedural victor[y].’ ” Id. (quoting Ruckelshaus,
463 U.S. at 688 n.9) (alteration in original). However, a
claimant can satisfy that requirement if “the court can fairly
call the outcome of the litigation some success on the merits
without conducting a lengthy inquir[y] into the question
whether a particular party’s success was substantial or
occurred on a central issue.” Id. (alteration in original) (cita-
tion and internal quotation marks omitted).
[3] Only after passing through the “some degree of success
on the merits” door is a claimant entitled to the district court’s
discretionary grant of fees under § 1132(g)(1). In Hardt, the
Supreme Court said, “We do not foreclose the possibility that
once a claimant has satisfied this requirement, and thus
becomes eligible for a fees award under § 1132(g)(1), a court
may consider the five factors adopted by the [Fourth Circuit]
Court of Appeals . . . in deciding whether to award attorney’s
fees.” ___ S. Ct. ___, 2010 WL 2025127, at *9 n.8. In the
Ninth Circuit, the discretionary decision to award fees has tra-
ditionally been governed by the five factors set forth in Hum-
9256 SIMONIA v. GLENDALE NISSAN/INFINITI
mell, 634 F.2d at 453, which mirror the Fourth Circuit’s
factors in Hardt. Those factors are:
(1) the degree of the opposing parties’ culpability or
bad faith; (2) the ability of the opposing parties to
satisfy an award of fees; (3) whether an award of
fees against the opposing parties would deter others
from acting under similar circumstances; (4) whether
the parties requesting fees sought to benefit all par-
ticipants and beneficiaries of an ERISA plan or to
resolve a significant legal question regarding
ERISA; and (5) the relative merits of the parties’
positions.
Id. We conclude, as we did in Hummell, that these factors pro-
vide a helpful guideline to both district courts and litigants.
We therefore hold that after determining a litigant has
achieved some degree of success on the merits, district courts
must still consider the Hummell factors before exercising their
discretion to award fees under § 1132(g)(1).
IV
We review for an abuse of discretion the district court’s
decision on a motion for attorney’s fees. See Cline v. Indus.
Maint. Eng’g & Contracting Co., 200 F.3d 1223, 1235 (9th
Cir. 2000). The district court denied Simonia’s motion for
fees before the Supreme Court issued its opinion in Hardt. As
a result, the district court proceeded to the Hummell analysis
without deciding whether or not Simonia had achieved some
degree of success on the merits. We will therefore assume,
without deciding, that Simonia has satisfied this requirement.1
1
In light of the Supreme Court’s admonition that a “ ‘trivial success on
the merits’ or a ‘purely procedural victor[y]’ ” will not qualify as “some
degree of success on the merits,” we emphasize that we assume without
deciding that Hartford’s voluntary dismissal of its counterclaim qualifies
as some degree of success on the merits for Simonia. Hardt, ___ S. Ct.
___, 2010 WL 2025127, at *9 (quoting Ruckelshaus, 463 U.S. at 688 n.9)
(alteration in original).
SIMONIA v. GLENDALE NISSAN/INFINITI 9257
However, we must conclude that the district court’s applica-
tion of the Hummell factors certainly reveals no abuse of dis-
cretion.
[4] First, there is no “culpability” or “bad faith” evidenced
by Hartford’s actions. Simonia began receiving retroactive
SSDI benefits in 2006. Under Simonia’s policy, these benefits
—when combined with certain forms of income—offset his
award from Hartford. At the time Hartford filed its counter-
claim, it had a good faith belief that Simonia had been over-
paid by $22,309.51, and that the deduction of Simonia’s
remaining mental disorder benefits would result in a balance
due of $8,589. Hartford was then informed that Simonia’s
SSDI benefits had been retroactively reduced. Hartford there-
after stipulated to a dismissal of the counterclaim. These
actions evidence good faith.
[5] Second, Hartford undoubtedly has the ability to satisfy
an award of fees. However, no single Hummell factor is nec-
essarily decisive. See Carpenters S. Cal. Admin. Corp. v. Rus-
sell, 726 F.2d 1410, 1416 (9th Cir. 1984). Third, given
Hartford’s good faith actions, we do not wish to deter others
from acting in the same manner. Fourth, in seeking to settle
the counterclaim following the Social Security Administra-
tion’s retroactive reduction in benefits, Simonia did not seek
“to benefit all participants and beneficiaries of an ERISA plan
or to resolve a significant legal question regarding ERISA.”
Hummell, 634 F.2d at 453. Instead, as the district court found,
Simonia sought to benefit only himself. Finally, the district
court correctly noted that the counterclaim was meritorious
when it was filed. When the Social Security Administration’s
adjustment allegedly deprived the counterclaim of merit,
Hartford settled and voluntarily dismissed. The district court
did not exceed the permissible bounds of its discretion in
determining that the Hummell factors weigh against an award
of attorney’s fees.
Even assuming that, as Simonia argues, Hartford mis-
takenly calculated the amount of overpayment and the coun-
9258 SIMONIA v. GLENDALE NISSAN/INFINITI
terclaim was of questionable merit when filed, there is no
evidence in the record to indicate that Hartford acted in bad
faith. On the contrary, Hartford’s subsequent voluntary dis-
missal is indicative of its good faith in this matter. Simonia’s
claim would therefore still fail after considering all of the fac-
tors.
V
In order to grant fees under 29 U.S.C. § 1132(g)(1), courts
must first determine whether a litigant has achieved some
degree of success on the merits. If so, courts must then deter-
mine whether the Hummell factors weigh in favor of awarding
that litigant attorney’s fees. Only if both of these conditions
are met may a district court award fees. On this record, we
conclude that the district court did not abuse its discretion in
denying Simonia’s motion for his attorney’s fees.
AFFIRMED.