* United States District Judge, Western District of Texas, sitting by designation.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20891

PERRI LEMON; JAMES C PLUMMER

Plaintiffs - Appellants

v.

LIBERTY LIFE ASSURANCE COMPANY OF BOSTON

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas, Houston

USDC No. 4:07-CV-1291

Before JONES, Chief Judge, JOLLY, Circuit Judge, and CARDONE,* District

Judge.

PER CURIAM:**

In this ERISA appeal, Perri Lemon and her counsel, James Plummer,

appeal an order requiring Lemon and Plummer to pay the attorneys’ fees and

costs of Liberty Life Assurance Company of Boston. Because the district court

did not sufficiently articulate its reasons for awarding attorneys’ fees, we vacate

the award, in part, and remand for further consideration. 

United States Court of Appeals

Fifth Circuit

F I L E D

December 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-20891

1

“In any action under this subchapter . . . , the court in its discretion may allow a

reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). 

2

I.

This case arises from a dispute between Lemon and Liberty over a

disability policy issued pursuant to the Employee Retirement Income Security

Act of 1974, as amended, 29 U.S.C. § 1001, et seq. (“ERISA”). In the district

court, Lemon alleged that Liberty wrongfully denied her disability claim. Video

surveillance, however, indicated that Lemon was not nearly as disabled as she

claimed. Accordingly, the district court granted Liberty’s motion for summary

judgment. Liberty then filed a motion for attorneys’ fees and costs pursuant to

§ 502(g)(1) of ERISA.1 The court granted the motion and ordered both Lemon

and Plummer to pay $7,498. The court did not declare the legal basis for the

award, but granted the award for two succinctly stated reasons: (1) Lemon had

lied to her doctor and exaggerated her pain, and (2) Plummer had maintained

a baseless suit and misrepresented his client’s condition to the court. Each of

these reasons appears to be in the nature of a sanction.

II.

In ERISA cases, we review an award of attorneys’ fees and costs for abuse

of discretion. Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan,

493 F.3d 533, 541 (5th Cir. 2007). It is an abuse of discretion for a district court

to assess attorneys’ fees without considering the factors announced in Iron

Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980). See Wade,

493 F.3d at 543 n.8. The award of costs, however, is subject to the “prevailing

party” test. Id. at 543. 

In order for this court to review the award of fees, the district court must

explicitly state the statutory basis for its decision. It must also clearly and
No. 07-20891

2 Liberty’s motion cited § 502(g)(1), but the district court did not reference that

provision. The applicable statutory authority is particularly important in this case because the

court ordered Plummer to pay fees and costs. This circuit has not considered whether

§ 502(g)(1) permits the assessment of fees against a party’s counsel. The Second Circuit has

noted that statutes, such as § 502(g)(1), that are silent on awards against the attorney, are

usually not a proper basis for such an award. See, e.g., Healey v. Chelsea Res. Ltd., 947 F.2d

611, 624 (2d Cir. 1991) (“When a fee-shifting statute that authorizes the courts to award

attorneys’ fees to prevailing parties does not mention an award against the losing party’s

attorney, the appropriate inference is that an award against attorneys is not authorized.”).

Fee-shifting or sanctions may be warranted in this case under 28 U.S.C. § 1927 or Rule 11, but

we cannot evaluate such an award without knowing the statutory or other authority under

which it was made. We indicate no opinion on any aspect of the award of attorneys’ fees

against a party’s counsel.

3

thoroughly state the factual justifications for the award. In its Order on

Attorneys Fees, the district court did neither.2

Because the award of costs is governed by the “prevailing party” test, we

AFFIRM the award of costs against Lemon. We VACATE and REMAND the

award of costs against Plummer. We also VACATE and REMAND the award of

attorneys’ fees against both Lemon and Plummer. On remand the district court

should state the statutory or other basis for each award and articulate, in some

detail, the evidence and the reasoning that support each award. 

AFFIRMED, in part, VACATED, in part, and REMANDED.