IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11050
Summary Calendar
ROBERT D. RILEY,
Plaintiff-Appellant
versus
ADMINISTRATOR OF THE SUPERSAVER
401K CAPITAL ACCUMULATION PLAN FOR
EMPLOYEES OF PARTICIPATING AMR
CORPORATION SUBSIDIARIES,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
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May 1, 2000
Before POLITZ, WIENER, and PARKER, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Robert D. Riley appeals the take-nothing
judgment of the district court in his ERISA1 suit against
Defendant-Appellee Administrator of the SuperSaver 401K Capital
Accumulation Plan for Employees of Participating AMR Corporation
Subsidiaries (“the Plan”). Riley claims that the Plan failed to
pay benefits owed and breached its fiduciary duty by failing to
provide complete and accurate information about the Plan. The Plan
filed a motion for summary judgment seeking dismissal of Riley’s
action and an award of attorneys’ fees and costs pursuant to §
1
Employee Retirement Income Security Act, 29 U.S.C. §§
1001 et seq.
502(g) of ERISA.2 The district court granted the Plan’s motion in
part by rejecting Riley’s claims against the Plan, but denied the
part of the Plan’s summary judgment motion that sought attorneys’
fees and costs. Riley has appealed the adverse judgment on the
substance of his ERISA claims; but the Plan neither cross-appealed
the district court’s denial of costs and attorneys’ fees nor
briefed that issue to us, so it is waived.
I.
MERITS
We have carefully reviewed the facts as revealed by the record
on appeal, the appellate briefs and record excerpts of the parties,
and the Memorandum Opinion and Order of the district court, in the
context of the applicable law as briefed to us by the parties and
as set forth in the district court’s opinion. As a result of our
review, we are satisfied that the district court’s clear and
detailed analysis of this case is correct and that the ultimate
ruling on the merits of Riley’s claims is free of error.
Consequently, we would merely waste judicial resources by writing
further on the issues raised by Riley. We therefore affirm the
take-nothing judgment of the district court for essentially the
reasons set forth in its Memorandum Opinion and Order.
II.
ATTORNEYS’ FEES
As the Plan did not appeal or brief the question of its
2
29 U.S.C. § 1132(g)(1).
2
entitlement to attorneys’ fees under ERISA, that issue is not
before us. We are nevertheless constrained to observe that —— even
under the deferential abuse of discretion standard of review —— the
district court’s ruling on that point could not have been sustained
had it been appealed.
The court began correctly by invoking the five-factor test we
established in Iron Workers Local No. 272 v. Bowen,3 as quoted in
Dial v. NFL Player Supplemental Disability Plan.4 The Bowen
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
attorneys’ fees;
3. Whether an award of attorneys’ fees against the opposing
parties would deter other persons acting under similar
circumstances;
4. Whether the parties requesting attorneys’ fees sought to
benefit all participants and beneficiaries of an ERISA plan or
to resolve a significant question regarding ERISA itself; and
5. The relative merits of the parties’ positions.5
After quoting all five of the Bowen factors, however, the
district court stated, “[i]n the instant cause, the Court’s
analysis begins and ends with the degree of Riley’s culpability or
3
624 F.2d 1255, 1266 (5th Cir. 1980).
4
174 F.3d 606, 613-14 (5th Cir. 1999).
5
Id.
3
bad faith.” Thus the court never reached the remaining four Bowen
factors. Yet, nothing in Bowen, Dial, or other precedents on point
can be read to endow the single factor of culpability or bad faith
with exclusive powers of control. By ending its inquiry after
considering only that one factor and ignoring the rest, the
district court abused its discretion.
Irrespective of whether we might agree or disagree with the
district court’s analysis of that one factor (indeed had it been
before us de novo, we might well have disagreed with the district
court, given Riley’s dogged pursuit of the claim in the face of
little or no legal or factual bases, as demonstrated by his failure
to address a number of the Plan’s winning contentions at summary
judgment), the deferential abuse of discretion standard of review
would have prevented us from substituting our conclusion for the
trial court’s on that one factor. It is nevertheless conceivable
that the results of an examination of all remaining factors might
have outweighed the absence of culpability or bad faith by
demonstrating that Riley had the ability to satisfy an award of
attorneys’ fees, that such an award would deter other retirees and
plan participants from pursuing legally and factually meritless
claims, that the Plan’s recovery of attorneys’ fees would benefit
all participants and beneficiaries by recouping Plan assets spent
defending such litigation, and that the relative merits of the
Plan’s position was (as is obvious) clearly superior to Riley’s.
Had the court considered all the Bowen factors (and any relevant
4
non-Bowen factors as well) and reached conclusions favorable to the
Plan, the court in its discretion might well have awarded
attorneys’ fees to the Plan despite the absence of bad faith on
Riley’s part.
Albeit dicta under these circumstances, we are constrained to
write and publish this analysis to dispel any mistaken belief among
the courts of this circuit or potential ERISA litigants that alone
the factor of culpability and bad faith somehow supplants the other
Bowen factors and conclusively determines the outcome of the
attorneys’ fees issue. To the contrary, Bowen makes clear that (1)
the list of five factors to be considered in an ERISA § 502(g)
attorneys’ fees case is a non-exhaustive, ejusdem generis list
(“[A] court should consider such factors as the following [five
factors]....[I]n any individual case, however, other considerations
may be relevant as well.”)6 and (2) none among the five listed
factors is entitled to greater weight —— much less unilaterally
determinative powers —— than any of the others (“No one of these
factors is necessarily decisive, and some may not be apropos in a
given case, but together they are the nuclei of concerns that a
court should address in applying Section 502(g).”).
In sum, when considering a request for attorneys’ fees under
§ 502(g) of ERISA, the court should consider and explicate the five
Bowen factors, and should do so without giving predominance or
6
Bowen, 624 F.2d at 1266 (emphasis added); see also Dial,
174 F.3d at 614 (“the district court’s opinion mentions no
relevant non-Bowen factors”).
5
preclusive effect to any one of them; and the court should also
consider relevant non-Bowen factors, if there are any.
III.
CONCLUSION
For the reasons set forth in the district court’s clear and
comprehensive opinion, the judgment of that court is, in all
respects,
AFFIRMED.
6