NOT FOR PUBLICATION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

- DSF

AGR

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, CLER K U.S. COURT OF APPEAL SBefore: 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 a ward unjust. Smith v. CMTA

- IAM Pension
Tr. , 746 F.2d 587, 589 (9th Cir. 1984). The record support s 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 reasonab le

*** 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 merit s in arbitration proceedings did not constitute an “action” within the meaning of ERISA’s fee

- shifting rule , this was not error
. F ee recovery under 29 U.S.C. § 1132(g)(1) is not available for pre

- litigation administrative activity

. Cann v. Carpenters’ Pens ion 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 on to which P once 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 consi dered an “action” for the purposes of ERISA fee recovery. Such an interpre tation is inconsistent with our holding in Cann , which limits attorneys’ fees4

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

.