UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

PATRICK GARRETT, Plaintiff-Appellee,

v. PRINCIPAL LIFE INSURANCE COMPANY, Defendant-Appellant. No. 13-6142 (D.C. No. 5:09-CV-01378-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.
This is an appeal by de fendant Principal Life Insu rance Company (Principal) from the district court’s order that gran ted plaintiff Patrick Garrett’s motion for attorney’s fees and prejudgmen t interest following the succes sful outcome of his suit against Principal for medical benefits under an employee benefit plan governed by

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 18, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - the Employee Retirement In come Security Act of 1974 (ERISA), 29 U.S.C. §§ 1101-1461. We have jurisdicti on under 28 U.S.C. § 1291 and affirm. Background Prior to entering its order for attorn ey’s fees and prejudgment interest, the district court entered two orde rs that are relevant here. First, it found that Principal was wrong when it denied Mr. Garrett’s claim for medical benefits. Next, it entered an order that Principal owed Mr. Garrett th e entire amount of his claim – $65,000. We affirmed both orders in Appeal No. 13-60 87. Having resolved the merits in favor of Mr. Garrett, the court then consid ered Mr. Garrett’s motion for fees and prejudgment interest. Concer ning the fee request, the court found that it was “reprehensible for [Principal to] . . . first . . . den[y] [t he claim] based on non existing exclusionary policy language and then f our years later afte r [the court found Principal] culpable, to seek a 50% reduc tion in benefits for a totally different reason.” Aplt. App. at 209. As to pr ejudgment interest, the court found that an award was “appropriate in this case to compensate [Mr. Ga rrett] for the lost use of money to which he was legally entitled.” Id . at 211. It awarded Mr. Garrett fees in the amount of $32,662.50 and prejudgment in terest in the amount of $47,671.08. Attorney’s Fees “We review the district court’s decisi on whether or not to award attorney’s fees and prejudgment interest for an abuse of discretion. . . .” Thorpe v. Ret. Plan of Pillsbury Co. , 80 F.3d 439, 445 (10th Cir. 1996). “To find th at the district court- 3 - abused its discretion, we must have a definite c onviction that the court, upon weighing relevant factors, clearly erred in its judgment.” McGee v. Equicor-Equitable HCA Corp. , 953 F.2d 1192, 1209 (10t h Cir. 1992) (internal quotation marks omitted). Fu rther, “[i]t is well establis hed that an appellate court plays a limited role in review ing a district court’s award of attorney’s fees . . . and deference is given to a distri ct court’s judgment on the matter, since the district court is in a better position to as sess the course of litigatio n and quality of work.” Id . (internal quotation marks omitted). “A fee claimant need not be a prevailing party to be eligible for an award of attorney’s fees . . . under ERISA.” Cardoza v. United of Omaha Life Ins. Co. , 708 F.3d 1196, 1207 (10th Cir. 2013). Instead, “[a] court may award fees and costs under 29 U.S.C. § 1132(g)(1) as l ong as the fee claimant ha s achieved ‘some degree of success on the merits.’” Id . (quoting Hardt v. Reliance Standard Life Ins. Co. , 560 U.S. 242, 245 (2010)).

There are “five factors a court may consid er in deciding whether to exercise its discretion to award attorney’s fees.” Id . They are: (1) the degree of the opposing party’ s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of fees; (3) whether an award of fees would deter ot hers from acting under similar circumstances; (4) whether the party requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5 ) the relative merits of the parties’ positions.- 4 - Id . But “[n]o single factor is dispositive and a court need not consider every factor in every case.” Id

. As an initial matter, the court found that Mr. Garrett, ha ving prevailed on his claim for benefits, “clearly achieved some degree of su ccess on the merits and is eligible for attorney’s fees under 29 U.S. C. § 1132(g)(1).” Aplt. App. at 209 (internal quotation marks omitted) . It then applied the five factors. As to the first factor, the court explained that on two occasions, Principal “completely denied” Mr. Garrett’s claim “for two different reasons,” and then sought a reduction in the amount owed “for a totally different reason.” Id . As to the second factor, the court found “there is no dispute that [Principal] is able to satisfy an aw ard of attorney’s fees.” Id . at 210. Concerning the third factor , the court found “that an award of attorney’s fees would deter other plan administrators fro m acting in the same manner under similar circumstances.” Id . In this regard, the c ourt noted the potential for Principal to repeat the same actions with other employ ees under this or a similar group policy. As to the f ourth factor, the court consid ered that, because Mr. Garrett “was but one employee covered by the employ ee group policy,” his suit might benefit other employees seeking benefits under the same policy. Id . Last, the court found “that [Mr. Garrett’s] position was more mer itorious than [Principal’s] position.” Id

. Principal argues that an award of atto rney’s fees was in appropriate because “[t]his was a highly unique case that woul d have no demonstrable impact on any future claims decisions. Ther e is no evidence that Principa l Life has faced, or will- 5 - face in the future, the same unique question [Mr.] Garre tt’s claim presented.” Aplt. Opening Br. at 18. Taking this argument at face value, it doe s not matter whether this was a “unique case” with no foreseeable future impact. Thes e are just some of the factors that the court may consider in deciding whether to aw ard fees. Further, the court was not obliged to cons ider these factors at all. See Cardoza , 708 F.3d
at 1207. We also reject Principal’ s argument that atto rney’s fees were improper because it “had an arguable basis for it s decision to deny benefits.” Aplt. Opening Br. at 16. This is not the law in this circuit. Instead, once Mr. Ga rrett achieved some degree of success on the merits, the dist rict court could exercise its discretion to award attorney’s fees. See Cardoza , 708 F.3d at 1207. The district court considered the releva nt factors and explained why an award of attorney’s fees was appropriate . We see no abuse of discretion.
Reasonableness Principal argues that the amount of attorn ey’s fees awarded to Mr. Garrett was unreasonable. First, Principa l argues that “[Mr.] Garret t’s counsel spent 5.25 hours related to the two Complain ts his attorneys drafted wh ich contained improper state law bad faith claims and re searching and unsuccessfully responding to the Motion to Dismiss that Principal Life was forced to file to eliminate th e improper claims.” Aplt. Opening Br. at 20. However, Princi pal’s brief contains no citations to the record and so we will not consider its argument. See Fed. R. App. P. 28(a)(9)(A)- 6 - (“The appellant’s opening brief must contain . . . citations to the authorities and parts of the record on which the appellant relies. . . .”); 1 see also Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely ha ve declined to consider arguments that are . . . inade quately presented[] in an a ppellant’s opening brief.”). Second, Principal seeks a reduction “for an hour of pre-litigation work.” Aplt. Opening Br. at 21. It cite s several district court d ecisions and cases from other circuit courts of appeals that allegedly stand for the prop osition that attorney’s fees incurred in the administrativ e phase of ERISA proceedings are not recoverable. Once again, we do not consider this argument because Principal has failed to cite to the record. See Bronson , 500 F.3d at 1104. Next, Principal argues that the district court should have reduced the award by “$5,325.00 for 19 hours of ti me spent by counsel familiar izing themselves with the basics of ERISA litigation.” Aplt. Opening Br. at 22. This court ha s “noted that time spent reading background material designed to familiarize the atto rney with the area of the law would normally be absorbed into a firm’s overhead and that, therefore, attempting to charge an adversary with ti me spent conducting background research is presumptively unreasonable.” Case v. Unified Sch. Dist. No. 233 , 157 F.3d 1243, 1253 (10th Cir. 1998). Again, however, Prin cipal has failed to provide adequate citations to the record for our review. For example, although Principal cites to three

1 This requirement is now set forth in Fed. R. App. P. 28(a)(8)(A), which took effect on December 1, 2013.- 7 - pages of the appendix, it does not cite to any particular time entries. Instead, Principal apparently expects us to forage through these pages an d identify the entries that allegedly relate to background research and then further pars e them to determine how much time is attributable to “reading background material.” This is not our responsibility. See United States v. Rodriguez-Aguirre , 108 F.3d 1228, 1237 n.8 (10th Cir. 1997) (“[I]t is the appellant’s responsibility to tie the salient facts, supported by specific record ci tation, to [its] legal conten tions.” (citation omitted) (internal quotation ma rks omitted)). Last, Principal argues that the award of attorney’s fees should be reduced by “3,750.00 for 12.5 hours of time resear ching and briefing the attorney fee application,” because these fees were not incurred to pursue Mr. Garrett’s medical benefits. Aplt. Opening Br. at 22. We have recognized as a general matter that “[a]n award of reasonable attorney’s fees may include compensa tion for work performed in preparing and presenting the fee application.” Case , 157 F.3d at 1254 (internal quotation marks omitted). Prejudgment Interest The district court awarded Mr. Garrett pr ejudgment interest and tied this award to the rate specified by Oklahoma law (15% per annum). In particular, it found “that the rate of 15% per year would ad equately, but not excessively, compensate [Mr. Garrett] for the lost us e of the money . . . [and] that this 15% rate is in no way meant to punish [Principal] for any wr ongdoing.” Aplt. App. at 211.- 8 - Principal argues that the district c ourt’s use of Oklahoma’s prejudgment interest rate was punitive and therefore unlawful. See Allison v. Bank One-Denver , 289 F.3d 1223, 1243 (10th Cir. 2002) (“We have held s quarely that punitive damages are not available in an ERISA action.”). However, we have a pproved of the use of the relevant state’s statut ory prejudgment interest ra te, including Oklahoma’s, as appropriate in ERISA cases as long as “nothing in the record suggests that the award . . . is punitive.” Weber v. GE Grp. Life Assurance Co. , 541 F.3d 1002, 1016- 17 (10th Cir. 2008). Because th ere is nothing in the record to suggest that the rate was punitive, we conclude that the c ourt did not abuse its discretion. See id

. (“Calculation of the rate fo r prejudgment intere st . . . rests firm ly within the sound discretion of the trial court.”) (i nternal quotation marks omitted)). The judgment of the dist rict court is affirmed. Entered for the Court
Wade Brorby Senior Circuit Judge