NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

EDWARD BRASLEY; TODD

WAYMENT; VERNON ELLIOTT;

BETTY NEWELL, 

Plaintiffs-Appellants,

 v.

FEARLESS FARRIS SERVICE

STATIONS, INC.; WESTPOINT

TRANSPORTATION, INC., a wholly

owned subsidiary of Fearless Farris

Service Stations, Inc.; FEARLESS

FARRIS SERVICE STATIONS

DEFERRED COMPENSATION PLAN;

CHARLEY JONES, individually and as

present and/or former administrators and

fiduciaries of the Fearless Farris Service

Stations, Inc. Deferred Compensation

Plan; SHAWN DAVIS, individually and

as present and/or former administrators

and fiduciaries of the Fearless Farris

Service Stations, Inc. Deferred

Compensation Plan; STINKER STORES,

INC., 

Defendants-Appellees.

No. 16-35519

D.C. No. 1:08-cv-00173-BLW

MEMORANDUM*

FILED

MAR 13 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief Judge, Presiding

Argued and Submitted March 5, 2018

Seattle, Washington

Before: RAWLINSON, CLIFTON, and CHRISTEN, Circuit Judges.

Appellant Edward Brasley (Brasley) appeals the district court’s order

denying his request for attorneys’ fees pursuant to 29 U.S.C. § 1132(g)(1). 

The district court’s determination that Brasley failed to demonstrate “some

degree of success” on the merits in his post-judgment litigation of Fearless’1

compliance with the district court’s amended judgment was not supported by the

record. See Simonia v. Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118,

1120 (9th Cir. 2010) (explaining that, in cases under the Employee Retirement

Income Security Act, “a fees claimant must show some degree of success on the

merits before a court may award attorney’s fees”) (citation and internal quotation

marks omitted). Indeed, the post-judgment proceedings before the special master

required Fearless to provide lump sum benefit payments to plan participants in

order to satisfy the district court’s amended judgment in favor of the plan

participants. See McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129, 1136 (9th Cir.

1

 Defendant Fearless Farris Service Stations, Inc. and related entities. 

2
1996) (recognizing that “[a] plan participant who prevails in an action to enforce

rights under the plan is ordinarily entitled to a reasonable attorney’s fee if the

participant succeeds on any significant issue in litigation which achieves some of

the benefit sought in bringing suit”) (citation, alterations, and internal quotation

marks omitted). 

Having concluded that Brasley achieved “some success” on the merits, we

remand for the district court to apply in the first instance the factors delineated in

Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980), to determine if a

discretionary award of attorneys’ fees is justified. See Simonia, 608 F.3d at 1121

(holding that “after determining a litigant has achieved some degree of success on

the merits, district courts must still consider the Hummell factors before exercising

their discretion to award fees”). We express no view on the outcome of the district

court’s Hummell analysis, and acknowledge that the district court, after proper

application of the Hummell factors, retains discretion to award all, some, or none of

the requested fees. See id. 

VACATED and REMANDED WITH INSTRUCTIONS.

3