Gross v. Sun Life Assurance Co. of Canada

United States Court of Appeals
For the First Circuit

No. 12-1175

DIAHANN L. GROSS,

Plaintiff, Appellant,

v.

SUN LIFE ASSURANCE COMPANY OF CANADA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Thompson, Selya, and Lipez,
Circuit Judges.

Michael D. Grabhorn, with whom Jonathan M. Feigenbaum and
Grabhorn Law Office, PLLC were on brief, for appellant.
Joshua Bachrach, with whom Wilson, Elser, Moskowitz, Edelman
& Dicker LLP was on brief, for appellee.

August 14, 2014
 LIPEZ, Circuit Judge. In previously deciding the merits

of this case brought under the Employees Retirement Income Security

Act of 1974 ("ERISA), we agreed with plaintiff Diahann Gross that

our circuit should no longer apply the highly deferential

"arbitrary and capricious" standard of review to certain benefits

decisions. See Gross v. Sun Life Assurance Co. of Can., 734 F.3d

1, 16 (1st Cir. 2013). We also found the administrative record

inadequate to permit our de novo judgment on Gross's entitlement to

benefits. Accordingly, we remanded the matter for further

proceedings. Gross now seeks an award of attorney's fees under 29

U.S.C. § 1132(g)(1) on the ground that she achieved "some degree of

success on the merits." See Hardt v. Reliance Standard Life Ins.

Co., 560 U.S. 242, 245 (2010) (quoting Ruckelshaus v. Sierra Club,

463 U.S. 680, 694 (1983)). Appellee Sun Life Assurance Company of

Canada contends that Gross is not entitled to attorney's fees and

that, in any event, her request is premature.

We conclude that our prior decision afforded Gross a

degree of success on the merits that qualifies her for an award of

fees. Further, we find that such an award is both appropriate and

properly ordered at this time. Hence, we remit Gross's fee request

to the district court for a determination in the first instance of

the proper amount of the award.

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 I.

A. Factual Background

We summarize the facts underlying Gross's disability

claim only briefly here, as they are presented in detail in our

earlier opinion. Gross was placed on disability leave at the age

of 34 based on her complaints of severe pain, weakness, and

numbness in her arms and legs, as well as recurring headaches. Her

treating physician attributed the symptoms to various medical

conditions, including fibromyalgia and reflex sympathetic

dystrophy, and concluded that Gross was unable to work. In denying

long-term disability benefits to Gross, Sun Life relied heavily on

video surveillance that showed Gross engaged in activities that

appeared inconsistent with her self-described physical limitations.

In her appeal to this court, Gross raised two substantial

threshold questions concerning her claim for disability benefits.

We rejected one -- applicability of the so-called "safe harbor

exception" to ERISA coverage -- but agreed with Gross's assertion

that policy language "requiring proof of disability 'satisfactory

to us' is inadequate to confer the discretionary authority that

would trigger deferential review" of the insurer's benefits

decision. 734 F.3d at 3. The latter holding departed from our

holding a decade earlier in Brigham v. Sun Life of Canada, 317 F.3d

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72 (1st Cir. 2003),1 and thus changed the law in this circuit

governing policies with the "satisfactory to us" language. As

directly applied to Gross's case, the decision withdrew from Sun

Life the right to make a judgment about her eligibility for

benefits that is subject to review only for abuse of discretion.

We also concluded that the administrative record was

"inadequate to allow a full and fair assessment of Gross's

entitlement to disability benefits," and therefore remanded the

case to allow further development of the evidence. 734 F.3d at 3-

4. In so ruling, we faulted Sun Life for failing to provide its

independent medical consultant with important background about

Gross's circumstances on a critical surveillance day and for

disregarding the consultant's observation that it "'might be

beneficial'" to reexamine Gross in light of the seeming

inconsistences between his prior evaluation and the surveillance.

Id. at 26-27; see also id. at 27 ("Sun Life's handling of the

inconsistencies between the medical reports and the video

surveillance . . . raises a legitimate question about whether Sun

Life has made a bona fide effort to determine Gross's

capabilities.").

1
As explained in our prior decision, our acceptance in
Brigham of "satisfactory to us" as adequate language to confer
discretionary authority was not binding because of the plaintiff's
procedural default and the state of the law at that time. See
Gross, 734 F.3d at 12-13.

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 At the same time, however, we recognized that Gross,

despite her burden to prove disability, had not submitted a

statement from her own doctor explaining why she was shown in the

surveillance video performing activities that appeared beyond her

self-reported capabilities. We therefore ordered a remand "so that

the parties can further address both the significance of the video

evidence in assessing Gross's limitations and the veracity of her

self-reported and observed symptoms." Id. at 27-28.

Gross subsequently filed the motion that is now before us

seeking an award of attorney's fees and costs for the litigation in

the district court and on appeal.2 As noted, Sun Life contends

that Gross is not yet eligible for a fee award.

B. Eligibility for Fee Award

(1) Legal Background

Under ERISA, a court "in its discretion may allow a

reasonable attorney's fee and costs of action to either party" in

a benefits proceeding. 29 U.S.C. § 1132(g)(1). In Hardt, the

Supreme Court clarified that eligibility for an award under section

1132(g)(1) does not require that the fee-seeker be a prevailing

party, but only that the "claimant show[] 'some degree of success

on the merits.'" Gastronomical Workers Union Local 610 & Metro.

Hotel Ass'n Pension Fund v. Dorado Beach Hotel Corp., 617 F.3d 54,

2
Her motion seeks $252,125 in legal fees, $5,742 for
paralegal fees, and $4,459.71 in costs.

-5-
66 (1st Cir. 2010) (quoting Hardt, 560 U.S. at 255).3 The

favorable result must be more than a "trivial success" or "a purely

procedural victory," but it is enough "if the court can fairly call

the outcome of the litigation some success on the merits without

conducting a lengthy inquiry into the question whether a particular

party's success was 'substantial' or occurred on a 'central

issue.'" Hardt, 560 U.S. at 255 (internal quotation marks omitted)

(brackets omitted).4 We have described such success as a "merits

outcome [that] produces some meaningful benefit for the fee-

seeker." Gastronomical Workers Union, 617 F.3d at 66.

Importantly, the Supreme Court declined in Hardt to

decide "whether a remand order, without more, constitutes 'some

success on the merits' sufficient to make a party eligible for

attorney's fees under § 1132(g)(1)." 560 U.S. at 256. In Hardt,

the claimant's success had three components: (1) a remand requiring

a reevaluation of her claim, (2) the district court's expressed

favorable view of that claim, with a warning that the court would

3
The Court noted the sharp contrast between the language of
section 1132(g)(1), which applies to actions "by a participant,
beneficiary, or fiduciary," and the language of section 1132(g)(2),
which imposes a "prevailing party" requirement for an award of
attorney's fees in actions to recover delinquent employer
contributions to multiemployer plans. See Hardt, 560 U.S. at 252.
4
The Supreme Court borrowed heavily in Hardt from the
reasoning and language in Ruckelshaus, 463 U.S. 680, "the principal
case" in the line of precedents addressing statutes "that do not
limit attorney's fees awards to the 'prevailing party.'" Hardt,
560 U.S. at 254. That borrowing includes language quoted in the
sentence to which this footnote is attached.

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grant judgment for the claimant if the plan administrator did not

"adequately consider[] all the evidence within 30 days," id.

(internal quotation mark omitted), and (3) an eventual award of

benefits by the plan administrator. The Court characterized that

combination as "far more" than trivial success. Id. We thus

understand the Court to be saying that circumstances less favorable

than Hardt's also would meet the requisite level of success.

The question to which we now turn is whether the

particular circumstances of the remand in this case satisfy the

Hardt standard.

(2) Discussion

Gross maintains that she is entitled to a fee award under

Hardt because she proved that Sun Life "violated her fundamental

ERISA rights" and she secured a change in the standard of review

for policies containing the "satisfactory to us" language. Sun

Life argues that a remand on its own does not constitute success

"on the merits," and it asserts that our ruling on the standard of

review "can only be considered a 'purely procedural victory'" that

also does not justify a fee award.

Most courts considering the question left unanswered in

Hardt have held that a remand to the plan administrator for review

of a claimant's entitlement to benefits, even without guidance

favoring an award of benefits or an actual grant of benefits, is

sufficient success on the merits to establish eligibility for fees

-7-
under section 1132(g)(1). See, e.g., McKay v. Reliance Standard

Life Ins. Co., 428 F. App'x 537, 546-47 (6th Cir. 2011); Barnes v.

AT & T Pension Benefit Plan-Nonbargained Program, 963 F. Supp. 2d

950, 962-63 (N.D. Cal. 2013); McCarthy v. Commerce Group, Inc., 831

F. Supp. 2d 459, 463, 493 (D. Mass. 2011); Scott v. PNC Bank Corp.

& Affiliates Long Term Disability Plan, No. WDQ-09-3239, 2011 WL

2601569, at *7 (D. Md. June 28, 2011); Olds v. Ret. Plan of Int'l

Paper Co., No. 09-0192-WS-N, 2011 WL 2160264, at *2 (S.D. Ala. June

1, 2011) (citing cases); cf. Petrone v. Long Term Disability Income

Plan for Choices Eligible Emps. of Johnson & Johnson & Affiliated

Cos., No. 11-10720-DPW, 2014 WL 1323751, at *2 & n.1 (D. Mass. Mar.

31, 2014) (finding no need to decide whether "remand simpliciter"

is enough, but noting that "the prevailing lower court wisdom

appears to be that a remand of an ERISA challenge may trigger a fee

award in favor of the plaintiff under § 1132(g)"); but see, e.g.,

Adair v. El Pueblo Boys & Girls Ranch, Inc. Long Term Disability

Plan, No. 11-cv-02749-WYD-KLM, 2013 WL 4775927, at *22 (D. Colo.

Sept. 5, 2013) (stating that plaintiff may renew her request for

attorney's fees if she achieves success on remand); McCollum v.

Life Ins. Co. of N. Am., No. 10-11471, 2013 WL 308978, at *1 (E.D.

Mich. Jan. 25, 2013) (holding that plaintiff "has not yet achieved

any 'degree of success on the merits'" where case was remanded for

"full and fair review of Plaintiff's claim for disability

benefits"); Vivas v. Hartford Life and Accident Ins. Co., No. 10-

-8-
22992-CIV, 2013 WL 5226720, at *3 (S.D. Fla. June 17, 2013)

(concluding that remand to the plan administrator "is a purely

procedural victory that does not rise to Hardt's standard requiring

a finding of 'some success on the merits'").5

Among other factors, the courts concluding that remand

simpliciter is enough have emphasized that a remand for further

administrative proceedings commonly results from a substantive

review of the evidence -- i.e., "the court considers the merits of

the case and reaches it[s] conclusion on that basis." Scott, 2011

WL 2601569, at *8 (emphasis added). Hence, these courts treat such

a remand as sufficient "success" under Hardt based on the two

positive outcomes inherent in such an order: (1) a finding that the

administrative assessment of the claim was in some way deficient,

and (2) the plaintiff's renewed opportunity to obtain benefits or

compensation. See, e.g., McKay, 428 F. App'x at 546-47; Barnes,

963 F. Supp. 2d at 962; Spradley v. Owens-Ill. Hourly Emps. Welfare

Benefit Plan, No. CIV-09-460-RAW, 2011 WL 209164, at *1 (E.D. Okla.

Jan. 21, 2011); Olds, 2011 WL 2160264, at *3; Bowers v. Hartford

Life & Accident Ins. Co., No. 2:09-CV-290, 2010 WL 4117515, at *2

(S.D. Ohio Oct. 19, 2010).

As explained below, it is unnecessary for us to adopt a

position on whether remand alone is enough to trigger fees

5
We note that many of the court decisions applying Hardt have
been unpublished. We cite them here primarily to show the trend of
decisions, not as authoritative precedent.

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eligibility. Nonetheless, we find the majority position

persuasive. A remand to the claims administrator for

reconsideration of benefits entitlement ordinarily will reflect the

court's judgment that the plaintiff's claim is sufficiently

meritorious that it must be reevaluated fairly and fully. See 29

U.S.C. § 1133(2) (stating that participants in ERISA benefit plans

are entitled to "a full and fair review by the appropriate named

fiduciary of the decision denying the claim"). Here, for example,

we observed that Gross had submitted sufficient medical evidence

that, "if credited, is adequate to prove [her] entitlement to

disability benefits." 734 F.3d at 22. In complying with our

remand instructions, the district court has now ordered Sun Life to

render a new decision that includes reconsideration of videotape

evidence that was not fairly examined during the original

administrative process. See Case No. 1:09-cv-11678-RWZ, Dkt. 65

(Apr. 16, 2014).6 The substance of the claim was thus a central

concern in the appeal, and it will be the focus of the proceedings

on remand.

To the extent Sun Life argues that an award of some

amount of benefits is a necessary component of the success required

6
In Hardt, and in many of the cases cited above, the remand
at issue was directly from the district court to the claims
administrator. Our remand to the district court in this case,
directing a remand to the claims administrator, is functionally the
same for purposes of examining the plaintiff's success as if the
remand had been ordered in the first instance by the district
court. We therefore treat it as such.

-10-
by Hardt, we are unpersuaded. The Supreme Court easily could have

identified Hardt's eventual benefits award as a condition of her

entitlement to attorney's fees, but it did not do so. Hence, in

our view, the Court's reservation of judgment about "a remand

order, without more" cannot mean that the "more," in every case,

must include the eventual receipt of benefits in some amount.

Indeed, a remand for a second look at the merits of her benefits

application is often the best outcome that a claimant can

reasonably hope to achieve from the courts. To classify such

success as a minimal or "purely procedural victory" mistakes its

importance.

Our dissenting colleague acknowledges that there "may" be

a limited set of cases in which an ERISA claimant will be entitled

to fees absent a benefits award -- those where a court has

explicitly found a violation of ERISA's substantive or procedural

components -- but he asserts that Supreme Court precedent does not

allow a more inclusive reach for section 1132(g)(1). There is no

such prohibition in Hardt or any other Supreme Court case. To the

contrary, the Court purposefully left open the scope of "some

success on the merits," allowing the lower courts to give content

to that requirement. Our colleague's conclusion that a remand

without an award of benefits can suffice only if it remedies a

violation of an explicit ERISA right elevates the outcome of

certain cases to a bright-line rule that circumscribes unwisely the

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case-by-case development of "some success on the merits"

contemplated by the Supreme Court.

Under Hardt, the question in each case is whether the

claimant has achieved something more than trivial or procedural

success. When an ERISA beneficiary has earned a second look at her

claim based on a deficient first review, her success can be equally

consequential whether or not the identified flaw is explicitly

linked by the remanding court to a statute or regulation. The

court's labeling of the claims administrator's conduct may be one

appropriate factor to consider; it should not be the only one.

In this case, however, we need not finally resolve the

adequacy of a "remand, without more," or the characteristics of a

qualifying remand. As the Second Circuit has observed, "Hardt

appears to have left room for many factual scenarios to satisfy the

standard of some success on the merits." Scarangella v. Grp.

Health, Inc., 731 F.3d 146, 152 (2d Cir. 2013). Like the plaintiff

in Hardt, Gross obtained more than merely a second chance for "a

full and fair review" of her claim by the plan administrator.

Although we did not nudge Sun Life toward a decision in

Gross's favor -- indeed, we expressly refrained from expressing any

view on the ultimate merits of her claim -- we made a substantive

ruling on the standard of review that altered the dynamic between

Sun Life and Gross in the subsequent proceedings. Contrary to Sun

Life's and our dissenting colleague's insistence, that legal

-12-
decision had more than procedural impact. It increased the

likelihood of a favorable benefits determination -- perhaps from

Sun Life, and certainly from a reviewing court in the event Gross's

claim is again denied by the claims administrator -- because Sun

Life's judgment will no longer be insulated from full judicial

review. In effect, the change in the standard of review has

strengthened Gross's claim: "The very existence of 'rights' under

such plans depends on the degree of discretion lodged in the

administrator. The broader that discretion, the less solid an

entitlement the employee has . . . ." Herzberger v. Standard Ins.

Co., 205 F.3d 327, 331 (7th Cir. 2000). At a minimum, this outcome

constitutes "some meaningful benefit for the fee-seeker,"

Gastronomical Workers Union, 617 F.3d at 66, and, hence, satisfies

the Hardt standard of "some degree of success on the merits,"

Hardt, 560 U.S. at 255 (internal quotation marks omitted).

Our colleague attempts to diminish the substantive import

of Gross's standard-of-review success with a hypothetical that he

says makes it "transparently clear that the plaintiff had not

achieved anything resembling success on the merits." He contends

that Gross plainly would have earned "no more than a purely

procedural victory" if we had applied the de novo standard of

review ourselves, instead of remanding, and concluded that she is

not entitled to benefits.

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 That contention is simply wrong. The fact that a

claimant's success and the denial of benefits might be combined in

a single decision does not change the quantum of success achieved

and, hence, provides no reason to alter our approach. The question

remains the same: what outcome, short of a receipt of benefits,

constitutes the requisite success under Hardt? Contrary to our

colleague's implication, there is nothing incongruous about

rewarding only the successful portion of a mixed decision. We do

it all the time in the context of attorney's fees. See, e.g.,

Joyce v. Town of Dennis, 720 F.3d 12, 31 (1st Cir. 2013) (noting

"the well established principle that a fees award should reflect

the plaintiff's level of success"). Thus, even if we had reviewed

the record ourselves and concluded that Gross is not entitled to

disability benefits, we still would have found her eligible for a

fee award based on the success she did achieve.

At the heart of our colleague's hypothetical is a

suggestion that any decision that does not award benefits is merely

procedural. To the same effect is his battle-and-war imagery,

which concludes with the observation that "[s]urviving to fight

another day is not the same as winning the war." Yet, he also

appears to recognize that such a narrow conception of "some"

success on the merits is incompatible with Hardt, where -- as we

have noted -- the Court could have, but did not, condition fees on

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an award of benefits. He thus grudgingly acknowledges that certain

"battle" victories may justify an award of fees.

Here, as we have explained, Gross secured a ruling on the

standard of review that improved her likelihood of success on the

merits of her claim and will impact all similar future claims. It

thus provided -- to borrow our colleague's formulation for the

requisite success -- "some concrete gain for the claimant." As

such, it is readily distinguishable from interim, "procedural"

victories such as a favorable ruling on a discovery dispute or a

motion to intervene. Cf., e.g., Barnes, 963 F. Supp. 2d at 961

(noting that "winning a motion for class certification or a motion

to intervene would constitute a purely procedural victory"); Olds,

2011 WL 2160264, at *3 n.2 (giving as examples of procedural

victories "favorable rulings on discovery disputes or motions in

limine and orders disqualifying opposing counsel").

Our colleague's discrediting of the significance of the

panel's standard-of-review ruling causes him to focus on our

observations about the significance of a remand simpliciter. In so

doing, he critiques a decision we did not make. Although we have

favorably reviewed the rationales for awarding fees based solely on

a claimant's success in obtaining a remand, our decision in this

case does not rest on such rationales. Here, we have held that

there is "more." Hence, our colleague necessarily rejects our

outcome not because he disagrees with our thinking on whether a

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remand alone may justify a fee award, but because he rejects our

conclusion that the panel's standard-of-review holding was a

significant, substantive success for Gross. Yet, he offers little

explanation for dismissing that holding as purely procedural. In

effect, he concludes that her victory was procedural simply because

it was not accompanied by an award of benefits.

In crediting Gross with non-trivial success on the

merits, we do not mean to portray as entirely irrelevant the

eventual outcome of her claim for benefits. That outcome will be

a factor in any post-remand request for fees, and it may be

considered by the district court in considering a reasonable fee

for the pre-remand legal work. While Gross's failure to achieve an

award of benefits, either in this court or on remand, "may speak to

the quantum of [her] success on the merits of [her] claim, . . . it

[would] not convert [her] substantial success on that claim into

failure or trivial success." Olds, 2011 WL 2160264, at *3.

We thus hold that Gross is eligible for an award of fees

under Hardt.

C. Timing

In its supplemental brief opposing Gross's motion for

fees, Sun Life appears to argue that the fee request is premature

because Gross's benefits claim is not yet fully decided: "Time will

tell whether Ms. Gross is entitled to receive benefits. If, in the

future, a court concludes that she is totally disabled, there is no

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question that the issue of eligibility for attorney's fees will be

ripe." Our discussion above demonstrates that Sun Life's ripeness

argument, relying in large part on the fact that no disability

benefits have yet been awarded, is off the mark. As we have

explained, the remand for reconsideration of her entitlement to

benefits, in combination with a less deferential standard of

review, means that Gross already has achieved the success that

makes her eligible for fees. Our judgment in this appeal is now

final,7 and the outcome of the supplemental proceedings ordered by

our remand will not change Gross's eligibility for fees for the

phase of the case that concluded with that judgment. We therefore

consider the fees issue "fit[] for adjudication." Gastronomical

Workers Union, 617 F.3d at 61; see also id. ("Fitness involves

questions about whether the necessary factual predicate is

7
The fact that we are addressing the attorney's fee issue
generated by this appeal does not affect the finality of our
judgment on the merits. See Ray Haluch Gravel Co. v. Cent. Pension
Fund of Int'l Union of Operating Eng'rs & Participating Emps., 134
S. Ct. 773, 778 (2014) (noting that "an unresolved issue of
attorney's fees generally does not prevent judgment on the merits
from being final"); Budinich v. Becton Dickinson & Co., 486 U.S.
196, 199-200 (1988) ("As a general matter, at least, we think it
indisputable that a claim for attorney's fees is not part of the
merits of the action to which the fees pertain."); see also White
v. N.H. Dep't of Emp't Sec., 455 U.S. 445, 451 (1982) (noting that
a request for attorney's fees under another fee-shifting statute,
42 U.S.C. § 1988, "raises legal issues collateral to the main cause
of action").

-17-
sufficiently matured to allow a court to resolve the issue

presented.").8

In evaluating ripeness, we ordinarily also look to

"whether a refusal to adjudicate th[e] issue will work a hardship

on the party who seeks a remedy." Gastronomical Workers Union, 617

F.3d at 61. Sun Life argues that Gross has not met this prong of

the ripeness test because she has not argued that she will suffer

hardship from a delay in consideration of her fees request. The

fee issue itself, however, bespeaks a need for prompt resolution.

Fee-shifting statutes are designed "to encourage the bringing of

meritorious . . . claims which might otherwise be abandoned because

of the financial imperatives surrounding the hiring of competent

counsel." Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982), quoted

8
Other courts also have ruled on ERISA fees requests at the
point at which the case has been remanded to the claims
administrator. See, e.g., McKay, 428 F. App'x at 545-46 (noting
that district court awarded attorney's fees after remand, before
final resolution of the case); Bio-Med. Applications of Ky., Inc.
v. Coal Exclusive Co., No. 08-80-ART, 2011 WL 3568249, at *1 (E.D.
Ky. Aug. 15, 2011) (stating that, despite recent remand for review
of plaintiff's claims, plaintiff "has nevertheless shown that it is
entitled to an award of attorneys' fees at this juncture"); Blajei
v. Sedgwick Claims Mgmt. Servs., Inc., No. 09-13232, 2010 WL
3855239, at *5 (E.D. Mich. 2010) (concluding that "it is
appropriate to rule on Plaintiff's Motion for Attorney Fees even
though Plaintiff has presently only secured a remand to the Plan
Administrator"). Although our decision did not itself return this
case to the claims administrator, we expressly directed the
district court to "remand the matter to Sun Life for proceedings
consistent with this opinion," 734 F.3d at 28, and we gave the
court the discretion to determine only the scope of those remanded
proceedings. Hence, as observed above, see supra note 6, the
practical effect of this two-step remand order is no different from
a remand that originated with the district court.

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in Riverside v. Rivera, 477 U.S. 561, 578 (1986) (referring to

attorney's fees in civil rights cases under 42 U.S.C. § 1988).

ERISA's fee provisions, in particular, are intended "to encourage

beneficiaries to enforce their statutory rights," Donachie v.

Liberty Life Ass. Co. of Boston, 745 F.3d 41, 45-46 (2d Cir. 2014)

(internal quotation mark omitted), and "to encourage attorneys to

take on such cases, which are often time consuming and complex,"

Hanley v. Kodak Ret. Income Plan, 663 F. Supp. 2d 216, 219

(W.D.N.Y. 2009). This case, for example, was removed to federal

court in October 2009 after initial proceedings in state court, and

Gross's benefits claim is still unresolved.

Without some prospect of compensating their attorneys

along the way, ERISA litigants may face difficulty both securing

counsel initially and retaining counsel as proceedings move

forward. See, e.g., Griffin v. Jim Jamison, Inc., 188 F.3d 996,

998 (8th Cir. 1999) (noting in an ERISA case that "three lawyers

had declined to represent the plaintiff before he approached his

present counsel"). We see no justification for a delay that might

add to that risk.

In reaching this conclusion, we recognize that addressing

Gross's attorney's fee motion at this juncture could result in

piecemeal fees litigation if Gross is successful before the claims

administrator on remand, see, e.g., Rote v. Titan Tire Corp., 611

F.3d 960, 965 (8th Cir. 2010) (per curiam) (concluding that ERISA

-19-
authorizes the award of fees incurred during an administrative

remand when district court retains jurisdiction); Peterson v.

Continental Cas. Co., 282 F.3d 112, 119 (2d Cir. 2002) (same), or

if she is again denied benefits but succeeds in litigation

challenging that adverse ruling. Although the balkanization of the

fees issue may not be ideal in terms of court efficiency, the facts

pertinent to fees motions covering separate phases of the case will

not substantially overlap. Hence, without minimizing the burden on

the district court, we decline to prioritize marginal efficiency

over the possibility of better access to skilled counsel for ERISA

claimants.

We therefore conclude that Gross's motion for attorney's

fees is ripe for adjudication.

II.

Having concluded that Gross is eligible for an award of

attorney's fees under section 1132(g)(1), we consider whether an

award is appropriate here. Although the Supreme Court in Hardt

emphasized that the multi-factor tests traditionally used by courts

to decide whether to award fees do not bear on the eligibility for

fees under section 1132(g)(1), it allowed such inquiries as a

second step to determine whether a claimant found eligible should

be awarded fees. See 560 U.S. at 254-55 & n.8. We continue to

find useful the five factors delineated in our precedent, see

Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225

-20-
(1st Cir. 1996); Gray v. New Eng. Tel. & Tel. Co., 792 F.2d 251,

257-58 (1st Cir. 1986), and, hence, we review their applicability

here. Accord Temme v. Bemis Co., No. 14-1085, 2014 WL 3843789, at

*4 (7th Cir. Aug. 6, 2014) (per curiam) (noting that five-factor

test may be used to analyze whether fees should be awarded in an

ERISA case); Scarangella, 731 F.3d at 153 n.10, 156 (noting that

district court could consider factors in exercising its discretion

on whether to award fees); Williams v. Metro. Life Ins. Co., 609

F.3d 622, 635 (4th Cir. 2010) (approving use of five-factor

analysis); Simonia v. Glendale Nissan/Infiniti Disability Plan, 608

F.3d 1118, 1121 (9th Cir. 2010) (requiring use of five-factor

analysis); McKay, 428 F. App'x at 545-46 (same).

The five factors that should be considered by courts

reviewing fee requests under ERISA are:

(1) the degree of culpability or bad faith
attributable to the losing party; (2) the
depth of the losing party's pocket, i.e., his
or her capacity to pay an award; (3) the
extent (if at all) to which such an award
would deter other persons acting under similar
circumstances; (4) the benefit (if any) that
the successful suit confers on plan
participants or beneficiaries generally; and
(5) the relative merit of the parties'
positions.

Cottrill, 100 F.3d at 225. The list is "exemplary rather than

exclusive," id., "and indeed, not every factor in the list must be

considered in every case," Janeiro v. Urological Surgery Prof'l

-21-
Ass'n, 457 F.3d 130, 143 (1st Cir. 2006). No single factor is

decisive. Id.

A. Culpability or Bad Faith

Although we did not conclude in our earlier decision that

Sun Life exhibited bad faith in its handling of this case, we did

describe its behavior as sufficiently culpable to count this factor

in Gross's favor. See Janeiro, 457 F.3d at 143 (stating that it is

unnecessary "to find that defendants acted with an especially high

degree of culpability"). As noted above, we observed in our merits

decision that Sun Life may not have "made a bona fide effort to

determine Gross's capabilities." Gross, 734 F.3d at 27.

More specifically, we observed that the reason Gross made

an unusually long drive on one of the days she was videotaped --

her mother's medical emergency -- was "essential" knowledge for a

"reliable appraisal of her medical condition." Id. Yet, Sun Life

apparently failed to provide this important context to its

independent medical consultant and at least one internal reviewer.

See id. at 26-27 (noting that the doctor who performed the final

medical assessment of Gross's claim "commented in his report that

'[i]t is unclear who the claimant was seeing [at the medical

building in Ashland] or why she would need to travel so far to be

seen.'" (alterations in original)).9 Further, Sun Life disregarded

9
The record shows that Sun Life knew the reason for Gross's
trip to Ashland at least by the time Sun Life requested that
medical assessment in January 2008. We cannot tell whether the

-22-
the independent consultant's suggestion that a reevaluation could

shed light on the seeming inconsistencies between the videotape

evidence and the medical reports that Gross suffered from credible

disabling pain. Sun Life's reliance on medical judgments it knew

were reached with incomplete information weighs in favor of Gross's

fee request. See generally Metro. Life Ins. Co. v. Glenn, 554 U.S.

105, 115 (2008) (noting that ERISA "imposes higher-than-marketplace

quality standards on insurers," requiring administrators to perform

their duties "'solely in the interests of the participants and

beneficiaries' of the plan" (quoting 29 U.S.C. § 1104(a)(1))).

B. Ability to Satisfy an Award of Attorney's Fees

Sun Life does not assert that it is incapable of paying

a fee award, but argues only that Gross has not proven that it can.

Given that Sun Life is an insurance company that is not claiming

financial hardship, we place this factor on Gross's side of the

scale. It is of little weight, however, as "the capacity to pay,

by itself, does not justify an award." Cottrill, 100 F.3d at 227.

C. Deterrence

We have noted on multiple occasions the difficulty of

proving disability based on conditions, such as chronic fatigue

syndrome and fibromyalgia, that do not lend themselves to diagnosis

by means of objective testing. See, e.g., Boardman v. Prudential

company also had the information before asking its independent
consultant in March 2007 to review the surveillance videos.

-23-
Ins. Co. of Am., 337 F.3d 9, 16 n.5 (1st Cir. 2003); Cook v.

Liberty Life Assurance Co., 320 F.3d 11, 21 (1st Cir. 2003); see

also Maher v. Mass. Gen. Hosp. Long Term Disability Plan, 665 F.3d

289, 304 (1st Cir. 2011) (Lipez, J., dissenting) ("Our court has

emphasized before that in dealing with hard-to-diagnose, pain-

related conditions, it is not reasonable to expect or require

objective evidence supporting the beneficiary's claimed diagnosis."

(citing Boardman and Cook)). That difficulty is exacerbated when

plan administrators like Sun Life adopt a grudging attitude toward

a claimant's self-reported symptoms.

Although a benefits administrator is entitled to probe

subjective complaints of disabling pain, it must maintain an open

mind when evaluating such reports. Videotapes of disability

claimants going about their daily lives can be telling, but they

also can be misleading. Rather than adopting a "gotcha" attitude

toward seeming inconsistencies, the plan must make "a bona fide

effort to determine [the claimant's] capabilities." Gross, 734

F.3d at 27.

Here, evenhanded treatment of Gross's substantial medical

evidence, including disclosure of all pertinent information to

consulting and reviewing doctors, might have led to a quicker

resolution of Gross's claim -- one way or the other. To be sure,

Gross may bear some responsibility for our inability to resolve her

benefits claim without a remand. See Gross, 734 F.3d at 27 (noting

-24-
Gross's failure to submit a doctor's letter responding to the

surveillance videos). We also are sensitive to the responsibility

of administrators to the overall solvency of their plans, and their

need to closely scrutinize claims to avoid fraud that could affect

other participants. See, e.g., Mote v. Aetna Life Ins. Co., 502

F.3d 601, 608 (5th Cir. 2007) ("ERISA plan administrators have a

duty to all beneficiaries and participants to investigate claims

and make sure to avoid paying benefits to claimants who are not

entitled to receive them." (internal quotation marks omitted));

Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583, 589 (8th Cir.

1999) ("A company failing to conduct proper inquiries into claims

for benefits breaches its duty to all claimants as a fiduciary of

the benefit funds when it grants claims to unqualified

claimants."). Moreover, an administrator need not make the

claimant's case for her, and it cannot be faulted for evidentiary

gaps more appropriately filled by the claimant.

Still, plan administrators ordinarily will be in the best

position to develop a record adequate for the full and fair review

required by the statute, see 29 U.S.C. § 1133(2), and courts should

not hesitate to demand "higher-than-marketplace quality standards"

in the handling of claims. Glenn, 554 U.S. at 115. We therefore

conclude that an award of fees to Gross may have a desirable

deterrent effect by demonstrating that excessive hostility to

claims involving subjective symptoms is ill-advised. All parties

-25-
will be better served if ERISA fiduciaries are motivated to develop

records that fairly represent all available information about a

claimant's condition and capabilities.

We thus hold that the deterrence factor also weighs in

favor of Gross.10

D. Benefit to Others

Although Gross pursued this litigation to secure

disability benefits for herself, the success she achieved on the

standard of review issue will benefit all claimants whose policies

contain the "satisfactory to us" language. As described above, our

ruling adopting de novo review strengthens the entitlement to

benefits for employees covered by such policies. See Herzberger,

205 F.3d at 331. This change in our precedent, precipitated by

Gross, reflects "a growing consensus of circuit courts that require

stricter clarity in plan language before insulating insurance

10
Sun Life argues that it is Gross's litigation conduct, not
its own actions, that should be deterred, pointing in particular to
her filing of state law claims in two different federal
jurisdictions. That redundancy is irrelevant to Gross's fees
eligibility, which is based on her success on the merits of her
ERISA claim. Moreover, under the Hensley analysis, see Hensley v.
Eckerhart, 461 U.S. 424 (1983), Gross will not be entitled to fees
for unsuccessful claims or for excessive lawyering on successful
ones. See, e.g., Cent. Pension Fund of the Int'l Union of
Operating Eng'rs & Participating Emps. v. Ray Haluch Gravel Co.,
745 F.3d 1, 5 (1st Cir. 2014) (stating that a reasonable fee
excludes "those hours that are 'excessive, redundant, or otherwise
unnecessary'" (quoting Hensley, 461 U.S. at 434)); id. (stating
that "the degree of a prevailing party's success" is "'a crucial
factor' to be considered in tailoring the final award" (quoting
Hensley, 461 U.S. at 440)). Gross is not seeking fees for the
state law litigation.

-26-
companies from full judicial review." Cosey v. Prudential Ins. Co.

of Am., 735 F.3d 161, 166 (4th Cir. 2013) (joining First Circuit

and four others in adopting this view). Having achieved resolution

in this circuit of "a significant ERISA legal question," Bio-Med.

Applications of Ky., 2011 WL 3568249, at *5, Gross deserves credit

for providing benefit to others.

E. Relative Merits

Notwithstanding Gross's success in securing a remand, the

relative merits of this action do not line up solely on Gross's

side of the calculus. Gross has not yet established a right to

benefits and, even with supplemental evidence upon remand, she may

fall short of meeting her burden to prove that she is totally

disabled. See Gross, 734 F.3d at 28 ("We take no view as to the

outcome of the further proceedings to be held on remand.").

Moreover, we rejected one of Gross's primary contentions -- that

her long-term disability policy was not part of an ERISA plan -- as

well as her related argument that her employer's disability plan

was excluded from ERISA coverage under the regulatory "safe harbor"

provision. See Gross, 734 F.3d at 7-11. In sum, the merits here

are not one-sided, and this factor therefore does not advance

Gross's motion for attorney's fees.

F. Conclusion

We have thus determined that four of the five Cottrill

factors weigh in favor of Gross's request for fees. Although her

-27-
failure to capture the important "relative merits" factor is of

some significance, that gap alone is not fatal to her fees request.

Having achieved adequate success under Hardt to establish

eligibility for fees, Gross may not be denied a fee award based

solely on the fact that she did not have greater success. Even

where the relative merits of a case are in equipoise, we must

inquire whether, on balance, the five factors -- or any other

pertinent considerations -- justify an award. See Janeiro, 457

F.3d at 143 ("[N]o single factor is dispositive . . . ."). We

discern no facts of consequence here beyond the considerations

identified in Cottrill. Based on our review of those factors, we

conclude that Gross is entitled to an award under

section 1132(g)(1).

III.

The parties agree that the "lodestar" method should be

used to determine a reasonable fee award for Gross. See Cent.

Pension Fund of the Int'l Union of Operating Eng'rs & Participating

Emps. v. Ray Haluch Gravel Co., 745 F.3d 1, 5 (1st Cir. 2014). The

lodestar is "[t]he product of the hours reasonably worked times the

reasonable hourly rate(s)." Id. Numerous factors, identified by

the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983),

"may support upward or downward adjustments from a lodestar." Diaz

v. Jitan Hotel Mgmt., Inc., 741 F.3d 170, 173 n.2 (1st Cir. 2013).

-28-
 The heavily fact-dependent lodestar analysis is best

performed in the first instance by the district court. We

therefore remand the case for that purpose and for consideration as

well of Gross's related request for costs.

So ordered.

– Dissenting Opinion Follows –

-29-
 SELYA, Circuit Judge (dissenting). In this ERISA case,

the plaintiff seeks attorneys' fees and costs totaling more than

$262,000. The majority gives its imprimatur to an award under 29

U.S.C. § 1132(g)(1) despite the fact that the plaintiff has

achieved nothing more than a purely procedural victory. This

trouvaille rests on what I believe to be an erroneous conclusion:

that the plaintiff has achieved some success on the merits

sufficient to warrant a fee award under Hardt v. Reliance Standard

Life Insurance Co., 560 U.S. 242, 255 (2010). As a result, the

rule of law for which the majority opinion will be cited is neither

allowed nor adumbrated under Supreme Court precedent. I

respectfully dissent.

The majority's first mistake is its conclusion that it

need not answer the question left open by the Hardt Court: "whether

a remand order, without more, constitutes some success on the

merits." Id. at 256 (internal quotation marks omitted). To

justify this conclusion, the majority insists that our favorable

decision on the standard of review bespeaks some merits success.

See ante at 12-13. This insistence is misguided.

Conventional wisdom teaches that a picture is sometimes

worth a thousand words. Here, a hypothetical serves the same

purpose. Suppose the panel had agreed with the plaintiff that the

standard of review should be de novo but, applying that standard,

had upheld the plan administrator's decision in its entirety and

-30-
denied the plaintiff relief. In such a situation, it would be

transparently clear that the plaintiff had not achieved anything

resembling success on the merits. Winning the battle over the

standard of review would be at most a purely procedural victory —

and the Supreme Court has instructed that purely procedural

victories do not count as merits success. See Hardt, 560 U.S. at

255 (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 n.9

(1983)).

It defies logic to say that leaving open the ultimate

fate of the plaintiff's claim, see Gross v. Sun Life Assur. Co.,

734 F.3d 1, 28 (1st Cir. 2013), somehow transmogrifies this

procedural victory into a merits victory. Surviving to fight

another day is not the same as winning the war (or even the same as

winning a significant battle).

This analysis does not end the matter but, rather, tees

up the real question that the plaintiff's motion poses: "whether a

remand order, without more, constitutes some success on the

merits." Hardt, 560 U.S. at 256 (internal quotation marks

omitted). The majority professes to avoid this question, but it

strongly suggests an affirmative answer. See ante at 10 (deeming

"persuasive" cases holding that a remand alone is sufficient under

Hardt). Beyond this generality, it asserts that the remand here

may justify a fee award because it reflects "a finding that the

administrative assessment of the [plaintiff's] claim was in some

-31-
way deficient" and provides a "renewed opportunity to obtain

benefits or compensation." Ante at 9. Relatedly, the majority

asserts that the remand embodies our judgment that the plaintiff's

claim was "sufficiently meritorious" to demand reevaluation. Ante

at 10.

I find these assertions unconvincing. The plaintiff

brought this action "to recover benefits due to [her] under the

terms of [her] plan, to enforce [her] rights under the terms of the

plan, [and] to clarify [her] rights to future benefits under the

terms of the plan." 29 U.S.C. § 1132(a)(1)(B); see Gross, 734 F.3d

at 5. It follows that the merits issue in this case is whether the

plaintiff is entitled to benefits (and, if so, to what extent). As

long as the plaintiff secures some benefits as a result of

litigation, she will be eligible for a fee award. Cf. Ruckelshaus,

463 U.S. at 688 (holding that Congress's omission of a prevailing

party requirement in 42 U.S.C. § 7607(f) "was meant to expand the

class of parties eligible for fee awards from prevailing parties to

partially prevailing parties" (emphasis in original)). At this

point, however, the benefits claim is entirely up in the air. We

simply do not know whether her claim will prove to be successful in

whole, in part, or not at all.

If a claimant in such a case fails to secure any

benefits, it becomes more difficult — although not impossible — to

say that she has achieved some success on the merits. There may be

-32-
cases in which a finding of administrative deficiency, untethered

to an eventual award of benefits, can constitute success on the

merits in the context of a benefits claim. But in my judgment that

category of cases is limited to cases in which the claimant has

vindicated a substantial right accorded to her under ERISA (say, by

showing either that the defendant violated some procedural

entitlement accorded by ERISA or that the defendant's decision was

so arbitrary that it abridged the claimant's right under ERISA to

a full and fair review).11 See, e.g., McKay v. Reliance Standard

Life Ins. Co., 428 F. App'x 537, 546-47 (6th Cir. 2011) (affirming

fee award when defendant's conduct was "arbitrary and capricious");

Barnes v. AT & T Pension Benefit Plan-Nonbargained Program, 963 F.

Supp. 2d 950, 961-63, 966 (N.D. Cal. 2013) (finding fee eligibility

because defendant violated ERISA notice requirements and because

claimant's suit was a catalyst for a beneficial change in the

defendant's plan interpretation); McCarthy v. Commerce Grp., Inc.,

831 F. Supp. 2d 459, 489, 493 (D. Mass. 2011) (awarding fees when

defendant failed "to provide even the bare-bones of ERISA's core

11
In Buffonge v. Prudential Insurance Co., 426 F.3d 20 (1st
Cir. 2005), we explained that the requirement that a plan must
"afford a reasonable opportunity . . . for a full and fair review"
of a claim denial should be understood to protect a claimant from
"arbitrary or unprincipled decisionmaking." Id. at 30 (emphasis
omitted) (discussing 29 U.S.C. § 1133(2)). Understood in this
manner, the "full and fair review" requirement affords claimants
some "substantive" protection, id., in addition to the procedural
protections provided by 29 C.F.R. § 2560.503-1(h). In our merits
opinion in this case, we found no violation of either the
provision's substantive or procedural components.

-33-
procedural protections"); Olds v. Ret. Plan of Int'l Paper Co., No.

09-0192, 2011 WL 2160264, at *1 (S.D. Ala. June 1, 2011) (awarding

fees in response to "gross violation" of regulations implementing

ERISA's "full and fair review" requirement). Here, however, no

such vindication has taken place; in our merits opinion, we found

neither that Sun Life committed a specific ERISA violation nor that

its benefits determination was arbitrary. Instead, we found only

that the record was not sufficiently developed for us to "determine

whether Sun Life justifiably rejected Gross's disability claim."

Gross, 734 F.3d at 28.

The majority's emphasis on "the plaintiff's renewed

opportunity to obtain benefits," ante at 9, is likewise inadequate

to bear the weight of a fee award. In the circumstances of this

case, a second bite at the apple would constitute a "meaningful

benefit for the [plaintiff]," Gastronomical Workers Union Local 610

& Metro. Hotel Ass'n Pension Fund v. Dorado Beach Hotel Corp., 617

F.3d 54, 66 (1st Cir. 2010), only if and when it produced a

favorable (or partially favorable) resolution of the benefits

claim. If the claim is eventually rejected in toto, the

plaintiff's second chance to make the case will have proven

worthless.

The majority's thesis is not advanced by its curious

suggestion that the remand reflects our judgment that the

plaintiff's claim was "sufficiently meritorious" as to require

-34-
reevaluation. Ante at 10. This strikes me as nothing more than a

convoluted way of saying that a remand, without more, is sufficient

to trigger an entitlement to a fee award under 29 U.S.C. §

1132(g)(1). The plaintiff's claim is either meritorious or it is

not; and as the majority concedes, our merits opinion "expressly

refrained from expressing any view on the ultimate merits of [the

plaintiff's] claim." Ante at 12. Whether the plaintiff's claim is

sufficiently meritorious to warrant relief remains an "open

question." Gross, 734 F.3d at 27.

This brings us back to the pivotal question (the question

that the majority says it need not answer): does a remand, without

more, comprise some success on the merits sufficient to ground a

fee award under 29 U.S.C. § 1132(g)(1)? This question, left open

by Hardt, demands a nuanced answer. In some situations, a remand

order alone may be enough to render a claimant eligible for fees.

Those are situations in which the remand follows a finding that the

plan administrator violated a substantial right accorded to the

claimant under ERISA. In this case, however, there has been no

such finding. Thus, all we have here is a remand alone — and a

remand alone is not enough to pave the way for a fee award under 29

U.S.C. § 1132(g)(1).

I do not gainsay the majority's lament that "a remand for

a second look at the merits . . . is often the best outcome that a

claimant can reasonably hope to achieve from the courts." Ante at

-35-
11. Nor do I propose that an ERISA claimant always must secure a

judgment for benefits in order to qualify for fees. But if a

court's order does not produce some concrete gain for the claimant,

such as an award of benefits or a direct vindication of some

substantial ERISA right, the claimant cannot be said to have

achieved some success on the merits.

Here, the plaintiff has not yet secured (and, indeed, may

never secure) some success on the merits. She is, therefore, not

yet entitled to an award of fees under 29 U.S.C. § 1132(g)(1). Put

another way, a fee award at this juncture would be at best

premature and at worst gratuitous. Consequently, the plaintiff's

motion for fees should be denied without prejudice.12

Because the majority mistakenly treats the plaintiff's

purely procedural victory as a badge of success sufficient to

justify a fee award, I am constrained to dissent.

12
I find puzzling one portion of the majority opinion, added
in an attempt to respond to this dissent. See ante at 15-16. In
order to dispel any doubt, let me state unequivocally that I
disagree with the majority's expressed thinking as to whether a
remand alone may justify a fee award.

-36-