NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO PONCE DE LEON aka 

FRANK PONCE DE LEON,

Plaintiff-Appellant,

v.

INTERNATIONAL 

LONGSHOREMEN’S AND 

WAREHOUSEMEN’S UNION—

PACIFIC MARITIME ASSOCIATION 

WELFARE PLAN,

Defendant-Appellee.

No. 16-55364

D.C. No. 2:13-cv-05561-DSFAGR

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Submitted November 16, 2017**

Pasadena, California

 

* 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).

FILED

NOV 27 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Before: NGUYEN and HURWITZ, Circuit Judges, and SEEBORG,*** District 

Judge

Francisco Ponce de Leon appeals a district order, denying his request for 

attorneys’ fees arising out of an Employee Retirement Income and Security Act 

(ERISA) benefits dispute. We affirm.

1. The district court applied the established test for awarding attorneys’ fees

under section 502(g)(1) of ERISA, 29 U.S.C. § 1132(g)(1), which presumes that 

fees should be awarded to a claimant who achieves success on the merits absent

“special circumstances” that make an award unjust. Smith v. CMTA-IAM Pension 

Tr., 746 F.2d 587, 589 (9th Cir. 1984). The record supports the district court’s 

conclusion that Ponce de Leon’s litigation efforts were not responsible for his 

success, but were instead “trivial” and “purely procedural.” See Hardt v. Reliance 

Standard Life Ins. Co., 560 U.S. 242, 255 (2010) (quoting Ruckelshaus v. Sierra 

Club, 463 U.S. 680, 688 n.9 (1983)). Ponce de Leon voluntarily agreed to stay his 

litigation soon after filing his complaint and before the Plan filed a responsive 

pleading. Thereafter the district court played largely a passive role in Ponce de 

Leon’s case—simply staying the action pursuant to the parties’ stipulation pending 

resolution of the administrative claims process and then confirming an award that 

had already been satisfied. Therefore, the district court made a reasonable 

 

*** The Honorable Richard Seeborg, United States District Judge for the Northern 

District of California, sitting by designation.
3

determination that Ponce de Leon’s successful recovery of benefits resulted from 

his efforts in arbitration rather than from litigation activity.

2. To the extent the district court denied fees because it found that Ponce de 

Leon’s success on the merits in arbitration proceedings did not constitute an 

“action” within the meaning of ERISA’s fee-shifting rule, this was not error. Fee 

recovery under 29 U.S.C. § 1132(g)(1) is not available for pre-litigation 

administrative activity. Cann v. Carpenters’ Pension Tr. Fund for N. Cal., 989 

F.2d 313 (9th Cir. 1993). While fees expended on administrative proceedings after 

a court-ordered remand may be recoverable, see Peterson v. Cont’l Cas. Co., 282 

F.3d 112, 122 (2d Cir. 2002), the district court in this case did not compel the 

parties to go to arbitration, but instead merely entered the parties’ stipulation to do 

so. As a result, the district court concluded that there was no ERISA “action” 

properly before the court and thus, no pending litigation onto which Ponce de Leon 

could tack his administrative proceedings. 

3. Ponce de Leon argues in the alternative that regardless of whether they are 

associated with litigation, the arbitration proceedings themselves should be 

considered an “action” for the purposes of ERISA fee recovery. Such an 

interpretation is inconsistent with our holding in Cann, which limits attorneys’ fees
4

to litigation proceedings. Plaintiffs may not circumvent Cann by filing suit before 

exhausting administrative remedies, in order to get the benefit of fee recovery. 

 

AFFIRMED.