FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN PAUL MICHA, M.D., an

individual

Plaintiff,

v.

SUN LIFE ASSURANCE OF CANADA,

INC., a Delaware corporation,

Defendant/CrossDefendant/Appellee,

GROUP DISABILITY BENEFITS PLAN

FOR GYNECOLOGIC ONCOLOGY

ASSOCIATES PARTNERS, LLC, a

California limited liability company,

Defendant/CrossClaimant/Appellant.

No. 16-55053

D.C. No.

3:09-cv-02753-

JM-BGS

OPINION

Appeal from the United States District Court

for the Southern District of California

Jeffrey T. Miller, Senior District Judge, Presiding

Submitted August 22, 2016*

Filed October 31, 2017

* The previous panel from No. 12-55816, Micha v. Group Disability

Benefits Plan, retained jurisdiction of this appeal.
2 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

Before: Michael R. Murphy,

** Kim M. Wardlaw,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Murphy;

Concurrence by Judge Berzon

SUMMARY***

ERISA / Attorney’s Fees

The panel reversed the district court’s denial of appellate

attorney’s fees under 29 U.S.C. § 1132(g)(1) and remanded

for calculation of a reasonable award of fees and costs in an

ERISA case.

The panel held that in analyzing a party’s request for

appellate attorney’s fees under the Hummell test, a court must

consider the entire course of the litigation, rather than

focusing exclusively on the prior appeal. Weighing the five

Hummell factors in light of all of a defendant’s conduct, from

its wrongful denial of the plaintiff’s claim for ERISA benefits

to its filing of a petition for a writ of certiorari, the panel held

that the moving party was entitled to attorney’s fees for the

prior appeal, in which the panel had affirmed an award of

litigation attorney’s fees. The panel declined to consider the

issue, not raised before the district court, whether fees-on-

** The Honorable Michael R. Murphy, Senior Circuit Judge for the

U.S. Court of Appeals, Tenth Circuit, sitting by designation.

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 3

fees should be automatically awarded, without application of

the Hummell test.

Concurring, Judge Berzon wrote that, were the panel

reaching the issue, she would hold that attorney’s fees should

be awarded automatically on appeal to a party that

successfully defends the fees it was awarded at the district

court, in ERISA cases as in others.

COUNSEL

Marc S. Schechter and Corey F. Schechter, Butterfield

Schechter LLP, San Diego, California, for Defendant/CrossClaimant/Appellant.

Michael B. Bernacchi and Keiko J. Kojima, Burke Williams

& Sorensen LLP, Los Angeles, California, for

Defendant/Cross-Defendant/Appellee.
4 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

OPINION

MURPHY, Circuit Judge:

I. INTRODUCTION

This court generally employs the five-part test set out in

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

to determine the appropriateness of awarding or denying a

29 U.S.C. § 1132(g)(1) ERISA-based request for appellate

attorney’s fees.1See Credit Managers Ass’n of S. Cal. v.

Kennesaw Life & Accident Ins. Co., 25 F.3d 743, 752 (9th

Cir. 1994); Operating Eng’rs Pension Trusts v. B & E

Backhoe, Inc., 911 F.2d 1347, 1356–57 (9th Cir. 1990). The

question presented here is whether in analyzing a party’s

request for appellate attorney’s fees within the Hummell

rubric, a court must consider the entire course of the

litigation. The decision in Sokol v. Bernstein, 812 F.2d 559,

561 (9th Cir. 1987), compels an affirmative answer to that

question. Accordingly, exercising jurisdiction pursuant to

28 U.S.C. § 1291, this court REVERSES the district court’s

denial of appellate attorney’s fees and REMANDS the matter

to the district court for calculation of a reasonable award of

fees and costs.

II. BACKGROUND

In Micha v. Group Disability Benefits Plan, we affirmed

a § 1132(g)(1) award of litigation attorney’s fees in favor of

1 We specifically emphasize the qualifier “generally.” As set out

infra, there may well exist exceptions to the rigid applicability of the

Hummell test. For reasons that will soon become apparent, however, this

is not the appropriate case to explore the existence of any such exceptions.
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 5

Group Disability Benefits Plan (“Group Disability”) for

Gynecologic Oncology Associates Partners, LLC (“GOA”). 

597 F. App’x 905, 906–08 (9th Cir. 2014). Micha concluded

(1) Group Disability achieved “some success on the merits”2

and (2) the district court did not abuse its discretion in

concluding the five Hummell factors weighed in Group

Disability’s favor. Id. at 907 (quotations omitted). Micha

specifically recognized that

[w]hen, in the course of the underlying

litigation, the district court informed [Sun Life

Assurance Company (“Sun Life”)] it had

serious concerns regarding Sun Life’s

handling of [Dr. John] Micha’s claim for

disability benefits, Sun Life settled the suit. 

When it did so, Sun Life fully vindicated

Group Disability’s interests in the lawsuit.

Id.3

2

See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 244–45

(2010) (holding a party need not “prevail[]” to obtain a fee award under

§ 1132(g)(1); instead, a court has discretion to grant such an award as long

as the party “has achieved some degree of success on the merits”

(quotations omitted)).

3 The district court in the underlying benefits dispute between Micha

and Group Disability, on one side, and Sun Life, on the other side,

concluded there was “ample evidence” Sun Life engaged in misconduct

in denying Micha’s disability claim:

Plaintiff’s central complaint appears to be that Sun Life

engaged in a pattern of conduct designed to permit the

company to avoid learning certain details about

Plaintiff’s condition that would require it to find him
6 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

Micha emphasized that the fee award in Group

Disability’s favor was a “remnant of discarded precedent”

and noted that because of a significant, intervening change in

this court’s case law, our unpublished disposition was “likely

of no practical significance to anyone other than the parties

on appeal.” Id. at 906 n.1.4 Sun Life filed a Petition for a

disabled under the policy. Indeed, a review of the

record finds ample evidence to support this contention.

EOR at 254. In response to the district court’s conclusion as to

misconduct on the part of Sun Life, Sun Life settled with Micha and

granted him disability benefits. Thereafter, in granting Group Disability’s

request for litigation attorney’s fees, the district court specifically found

Sun Life acted in bad faith in denying Micha disability benefits. EOR at

331 (“While this case did not reach trial, the court made several findings

in its Order Regarding Motions to Determine Scope of Review . . .

indicating Sun Life’s bad faith in assessing Micha’s claims.”). Based on

its finding Sun Life acted in bad faith, the district court concluded “the

first and fifth Hummell factors weigh in favor of awarding [litigation

attorney’s] fees to” Group Disability. Id.

4

 As explained in Micha,

Group Disability is an employee welfare plan . . .

maintained to provide disability benefits to [GOA]

employees . . . . Group Disability purchased a

disability policy from Sun Life covering GOA’s

employees, including Dr. John Micha. Micha sought

disability benefits from Sun Life. When Sun Life

denied the claim, Micha brought suit against Sun Life

and Group Disability. See 29 U.S.C. § 1132(a)(1)(B).

597 F. App’x at 906 (footnote omitted) (emphasis in original). The rule

requiring Micha to sue Group Disability to obtain benefits from Sun Life

was eventually abandoned by this court sitting en banc:

In Everhart v. Allmerica Financial Life Insurance Co.,

275 F.3d 751, 756 (9th Cir. 2001), this court held that
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 7

Writ of Certiorari, asserting the unpublished disposition in

Micha would have wide-ranging repercussions.5 But see id.

Sun Life’s petition for certiorari claimed Micha would

(1) increase litigation over fee awards and (2) expand the

class of individuals entitled to an award of attorney’s fees, not

only with regard to ERISA but also through “similar

attorney’s fees claims being filed in federal courts outside of

the ERISA context.” Group Disability filed an opposition to

the petition and the Supreme Court denied Sun Life’s request

for certiorari. 135 S. Ct. 2894 (2015).

Seeking a § 1132(g)(1) award of appellate attorney’s fees

for prevailing in Micha, Group Disability filed a Motion to

Transfer Consideration of Attorney Fees on Appeal to the

District Court for Determination. See Ninth Cir. R. 39-1.8

(“Any party who is or may be eligible for attorneys fees on

appeal to this Court may . . . file a motion to transfer

29 U.S.C. § 1132(a)(1)(B) “does not permit suits

against a third-party insurer to recover benefits when

the insurer is not functioning as the plan administrator.” 

Instead, under Everhart, the ERISA plan wasthe proper

defendant in a suit for benefits. Id. After the filing of

the complaint giving rise to this appeal, this court

overruled Everhart. Cyr v. Reliance Standard Life Ins.

Co., 642 F.3d 1202, 1207 (9th Cir. 2011) (en banc).

Id. at 906 n.1 (emphasis in original).

5 We GRANT Group Disability’s Motion to Take Judicial Notice as

to Exhibits 1 and 2. See Harris v. Cty. of Orange, 682 F.3d 1126, 1132

(9th Cir. 2012) (“We may take judicial notice of undisputed matters of

public record, including documents on file in federal or state courts.”

(citation omitted)). We DENY the motion as to Exhibit 3 because those

documents are unnecessary to the disposition of this appeal. Sun Life’s

Request for Judicial Notice is DENIED because it is unnecessary to take

notice of documents contained in this court’s docket.
8 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

consideration of attorneys fees on appeal to the district court

. . . from which the appeal was taken.”). The panel granted

the motion and before the district court Group Disability

asked that its request for appellate attorney’s fees be resolved

with the five-factor test set out in Hummell.

6 The district

court concluded that despite having achieved some success on

the merits by prevailing on appeal, Group Disability was not

entitled to appellate attorney’s fees under the Hummell

factors. The district court reasoned as follows: (1) Sun Life

did not act in bad faith or with culpability as to the prior

appeal because that appeal presented a novel issue (i.e.,

whether a nominal defendant could recover from a codefendant based on the success of the plaintiff’s case);

(2) Sun Life’s ability to pay an award was uncontested, but

not determinative; (3) an award of fees would not deter future

misconduct because (a) the prior appeal was not taken in bad

faith and (b) Micha made clear the “facts of this case are

unlikely to be repeated”; (4) the fourth factor, whether

litigation provided a benefit to all plan participants or

resolved a novel legal issue, was not implicated by Group

Disability’s fee request; and (5) the relative merits of the

parties’ positions on appeal favored Group Disability, but

6

 The five Hummell factors are:

(1) the degree of the opposing parties’ culpability or

bad faith; (2) the ability of the opposing parties to

satisfy an award of fees; (3) whether an award of fees

against the opposing parties would deter others from

acting under similar circumstances; (4) whether the

parties 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.

634 F.2d at 453.
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 9

only slightly because Sun Life’s prior appeal “was predicated

upon fairly debatable legal arguments involving a novel

ERISA issue.” As should be clear from this recitation of the

district court’s reasoning, in analyzing the Hummell factors,

the district court focused exclusively on Sun Life’s actions

and arguments on appeal in Micha and refused to consider

Sun Life’s conduct in the underlying suit Micha brought for

disability benefits.

III. ANALYSIS

A. Forfeited Bases to Reverse the District Court

1. Automatic-Entitlement Rule

Group Disability asserts we should adopt the Seventh

Circuit’s automatic-entitlement rule and, on that basis,

reverse the district court’s denial of appellate attorney’s fees. 

See Bandak v. Eli Lilly & Co. Ret. Plan, 587 F.3d 798, 803

(7th Cir. 2009) (“[A]ffirmance entitles an appellee who has

properly been awarded an attorney’s fee in the district court

to an attorney’s fee for successfully defending the district

court’s judgment in the court of appeals. Otherwise the

purpose of the initial award—to shift the cost of litigation to

the losing party—would be imperfectly achieved.” (quoting

Sullivan v. William A. Randolph, Inc., 504 F.3d 665, 672 (7th

Cir. 2007))). We decline to consider this issue because it was

never raised in the district court. See Hillis v. Heineman,

626 F.3d 1014, 1019 (9th Cir. 2010).7

7

 It is, therefore, unnecessary to decide whether extant Ninth Circuit

precedent would prevent the adoption of an automatic-entitlement rule. 

In Credit Managers Association of Southern California, this court held

that “[i]n considering whether to award appellate fees under 29 U.S.C.
10 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

2. Prevailing-Party Presumption

Group Disability claims the district court erred when it

failed to apply a prevailing-party presumption in resolving its

entitlement to appellate attorney’s fees. See United

Steelworkers of Am. v. Ret. Income Plan for Hourly-Rated

Emps. of ASARCO, Inc., 512 F.3d 555, 564 (9th Cir. 2008)

(“[A]s a general rule, the prevailing party on an ERISA claim

is entitled to attorney’s fees, unless special circumstances

would render such an award unjust.” (quotation omitted)). 

This issue was raised for the first time in Group Disability’s

motion for reconsideration. Citing this court’s precedents,

the district court refused to consider the issue. See Kona

Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.

2000) (holding that a motion for reconsideration “may not be

used to raise arguments or present evidence for first time

when they could reasonably have been raised earlier in the

litigation”). We review for abuse of discretion the denial of

a motion for reconsideration. Smith v. Pac. Props. & Dev.

Corp., 358 F.3d 1097, 1100 (9th Cir. 2004). We perceive no

§ 1132(g), we must consider the five Hummell factors.” 25 F.3d 743, 752

(9th Cir. 1994); see also Operating Eng’rs, 911 F.2d at 1356–57 (same). 

There is a key distinction between those cases and this appeal. In both

Credit Managers and Operating Engineers this court was deciding

whether to grant appellate fees in appeals that presented ERISA merits

issues. This case, on the other hand, is the type of fees-on-fees case that

gave rise to the automatic-entitlement rule. The sole question before the

district court here was whether Group Disability was entitled to appellate

attorney’s fees for achieving some degree of success on the merits in an

appeal where the only issue was the appropriateness of a district court’s

award of litigation attorney’s fees. Whether that distinction is meaningful

enough to allow a panel of this court to adopt the automatic-entitlement

rule without superseding involvement of the en banc court is a matter we

leave for an appeal where the issue is properly raised and litigated in the

district court.
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 11

abuse of discretion in the district court’s refusal to consider

an issue that could reasonably have been raised in Group

Disability’s original motion for appellate attorney’s fees.8

B. Hummell’s Multi-Factor Test

Group Disability asserts the district court’s analysis of the

Hummell factors is infected with legal error and its denial of

appellate attorney’s fees is manifestly unreasonable. In

particular, Group Disability asserts the district court’s refusal

to consider Sun Life’s pre-appeal conduct improperly skewed

its analysis of the Hummell factors in favor of Sun Life. An

award of attorney’s fees is reviewed for abuse of discretion,

though “any elements of legal analysis and statutory

interpretation which figure in the district court’s decision are

reviewable de novo.” Fabbrini v. City of Dunsmuir, 631 F.3d

1299, 1302 (9th Cir. 2011) (quotation omitted). Thus, in

reviewing a district court’s denial of ERISA attorney’s fees,

this court must reverse if the district court used incorrect legal

standards to reach its findings. Hope v. Int’l Bhd. of Elec.

Workers, 785 F.2d 826, 831 (9th Cir. 1986). Furthermore,

this court will reverse a denial of fees if “it has a definite and

firm conviction that the district court committed a clear error

of judgment.” United States v. Tucor Int’l, Inc., 238 F.3d

1171, 1175 (9th Cir. 2001).

The district court erred when it refused to consider the full

course of the litigation, specifically including Sun Life’s preappeal conduct, in applying the Hummell factors to Group

8

It is, therefore, unnecessary to address whether the prevailing-party

presumption set out in United Steelworkerssurvived the Supreme Court’s

decision in Hardt, 560 U.S. at 244–45.
12 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

Disability’s request for appellate attorney’s fees.9See Sokol,

812 F.2d at 561 (“First, the district court found that Bernstein

had acted arbitrarily and capriciously and, thus, this appeal

would not have arisen had it not been for his initial bad faith

in handling the pension.”).10 Weighing the five Hummell

9 The district court refused to consider Sun Life’s pre-appeal conduct

inweighing the Hummellfactors because Group Disabilitypurportedly did

not raise the issue in its original request for fees. The district court’s

procedural ruling as to waiver of the issue is erroneous. In asserting an

entitlement to appellate attorney’s fees, Group Disability specifically

noted it achieved some success on the merits when it participated in and

supported Micha’s attempt to obtain disability benefits from Sun Life. 

Group Disability claimed that but for Sun Life’s bad faith in denying

Micha’s benefits claim, it never would have “became a victim to the

lawsuit.” The only fair reading of Group Disability’s request for appellate

fees is that Group Disability was asking that the district court keep the

basis for Group Disability’s success firmly in mind as it moved though the

Hummell analysis.

10 In its order denying fees, the district court stated that “[w]here an

appellee seeks attorney’s fees and costs for services performed in

connection with defending an appeal, courts in the Ninth Circuit review

whether the appellant pursued the appeal in bad faith and not whether the

appellant’s conduct, which resulted in the original litigation, warrants a

finding of bad faith or culpability.” None of the three cases the district

court cited, however, support that proposition. Two of the cases, DeVoll

v. Burdick Painting, Inc., 35 F.3d 408, 414 (9th Cir. 1994) and Operating

Engineers, 911 F.2d at 1357, involved ERISA beneficiaries, who, unlike

the plans at issue here, are rarely charged attorney’s fees. See Operating

Eng’rs, 911 F.2d at 1357 (noting that “the Hummell considerations very

frequently suggest that attorney’s fees should not be charged against

ERISA plaintiffs”); Flanagan v. Inland Empire Elec. Workers Pension

Plan &Tr., 3 F.3d 1246, 1253 (9thCir. 1993) (“[O]ur common perception

[is] that attorney’sfees should not be charged against ERISA plaintiffs.”). 

And in both DeVoll and Operating Engineers, unlike here, there is no

indication the ERISA beneficiaries acted in bad faith or were culpable at

any point in the litigation, undermining any inference that the opinions’

silence about pre-appeal conduct indicated such consideration was barred. 
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 13

factors in light of all of Sun Life’s conduct, from its wrongful

denial of Micha’s claim to its filing of a petition for a writ of

certiorari, it is clear Group Disability is entitled to appellate

attorney’s fees.

1. Degree of Culpability or Bad Faith

This factor strongly favors an award of appellate fees and

costs to Group Disability. Group Disability was forced into

this litigation only after Sun Life wrongfully denied disability

benefits to Micha. See supra note 3. Although denominated

as a “defendant” under this court’s then-prevailing Everhart

decision, Micha concluded Group Disability was, in reality,

a co-plaintiff fully supportive of Micha’s request for ERISA

benefits. 597 F. App’x at 907. Sokol requires that courts

weighing the first Hummell factor consider any pre-appeal

bad faith or culpability on the part of the non-claiming party. 

In the third case, Misic v. Building Service Employees Health & Welfare

Trust, 789 F.2d 1374, 1379 (9th Cir. 1986), the discussion of appellate

attorney’s fees is so limited, it simply cannot be said the case bears

meaningfully on the issue at hand. It is clear, however, that both parties

in Misic prevailed in significant part, casting doubt on the notion that

either party’s litigation position in the district court amounted to culpable

behavior. Id.

The district court, in denying reconsideration of its denial of fees,

contorted its reliance on those three cases, stating they demonstrated

merely “that courts in the Ninth Circuit may properly consider appeal

conduct under the Hummell factors,” but did not preclude consideration

of pre-appeal conduct, which it said could be, but did not have to be,

considered. Even were the district court’s depiction of Ninth Circuit law

accurate, its order is silent on why it relied on three distinguishable cases

to ignore Sun Life’s bad faith rather than Sokol, which is directly

analogous to this case and, as we hold today, mandates consideration of

any pre-appeal bad faith conduct.
14 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

812 F.2d at 561. This rule prevents a party from insulating

itself from an award of appellate fees by merely identifying

an issue whose resolution is “sufficiently uncertain to have

justified [the party against which an award of litigation fees

has been entered] in seeking appellate review.” Sullivan,

504 F.3d at 672. A party like Sun Life should not be able to

appeal from a litigation fee award, even on an issue justifying

appellate review, and thereby impose significant costs on the

appellee in defending the fee award, while taking comfort in

the knowledge that any potential appellate fee award against

it will be judged solely on the basis of its appellate arguments

on the fee issue. Id.

Furthermore, as this court’s memorandum disposition in

Micha made clear, the underlying fee appeal was a deadender, with no legal significance to anybody but the parties. 

597 F. App’x at 906 n.1. Nevertheless, Sun Life vigorously

litigated the matter on appeal, going so far as to dubiously

assert in a petition for certiorari that the memorandum

disposition in Micha would have exceedingly far-reaching

implications for awards under various types of fee-shifting

statutes. The first Hummell factor weighs heavily in favor of

an award of appellate attorney’s fees to Group Disability.

2. Ability to Pay

As noted by the district court, Sun Life does not dispute

its ability to satisfy a fee award. At no point in its analysis,

however, did the district court indicate what weight, if any, it

assigned to this factor. This court’s precedents indicate that,

at least as to a suit involving an ERISA beneficiary as a

plaintiff, a defendant-appellant’s ability to pay should weigh

strongly in favor of an award of fees. See Smith v. CMTAIAM Pension Trust, 746 F.2d 587, 590 (9th Cir. 1984). 
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 15

Although Group Disability is not technically an ERISA

beneficiary, this Hummell factor still weighs in favor of an

award of fees. In affirming the district court’s original award

of litigation fees in favor of Group Disability, Micha held as

follows:

Having concluded Micha’s ERISA suit

against defendant Sun Life and nominaldefendant/plaintiff-in-interest Group

Disability is the proper vantage from which to

review the validity of the district court’s fee

award, this court easily rejects Sun Life’s

arguments as to success on the merits. Sun

Life contends that in deciding whether an

attorney’s fee award was appropriate, the

district court was required to focus on the

relief Group Disability obtained on its own

behalf. At each and every point necessary,

Group Disability supported Micha’s request

for disability benefits as consistent with the

insurance contract it purchased from Sun Life. 

When, in the course of the underlying

litigation, the district court informed Sun Life

it had serious concerns regarding Sun Life’s

handling of Micha’s claim for disability

benefits, Sun Life settled the suit. When it did

so, Sun Life fully vindicated Group

Disability's interests in the lawsuit.

597 F. App’x at 907. According to Micha, Group Disability’s

interests were identical to, and fully aligned with, Micha’s

interests in obtaining a proper award of disability benefits. 

That identity-of-interest did not disappear when Sun Life

appealed the fee award in favor of Group Disability. Sun Life
16 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

has offered no reason to conclude that identity-of-interest

disappeared when analyzing whether the Hummell factors

weigh in favor of an award of appellate fees to Group

Disability. That being the case, the rule of law set out in

Smith weighs in favor of an award of fees in this particular

case.

3. Deterrence

The district court concluded the deterrence factor weighed

against an award of fees because: (1) the original fee award

sufficiently deterred insurance companies from denying

legitimate claims; (2) Sun Life did not act in bad faith in

bringing its appeal because the issue raised was novel; and

(3) the fact the case only arose under the now-rejected

Everhart decision, a situation that would not likely repeat,

meant an award of fees would have no deterrent value. The

district court’s conclusion in this regard is manifestly

unreasonable. First, an award of litigation fees and costs is

not particularly meaningful when a defendant can force the

expenditure of significant fees on appeal to defend that

award. Thus, a proper award of litigation fees that is not

backed up by an award of appellate fees is generally not a

sufficient deterrent to wrongful conduct on the part of an

ERISA defendant. Second, the district court’s consideration

of bad faith is legally suspect because the district court

refused to consider Sun Life’s pre-appeal conduct which, as

discussed above, involved bad faith. See supra note 3. 

Finally, the district court’s third consideration (i.e., that the

relative unimportance of the decision in Micha limits the

deterrent effect of any appellate fee award) is arguably

inconsistent with the district court’s determination that Sun

Life’s appellate conduct was taken in good faith because the

issue on appeal was novel. That is, the undeniable fact that
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 17

the district court’s original award of attorney’s fees was

entirely a product of the now-discarded Everhart decision

makes Sun Life’s vigorous appellate advocacy, exemplified

by its petition for certiorari, all the harder to understand and

all the more susceptible to the deterrent effect of an award of

appellate fees. The district court abused its discretion in

concluding this factor weighed against an award of fees. 

Instead, an award of appellate fees in the circumstances

present in this appeal would have a significant deterrent effect

as to the bringing of marginal appeals after a misconductbased denial of ERISA benefits, see supra note 3, led to an

award of litigation fees and costs.

4. Significance of Legal Issue/Benefit to All Plan

Participants

Micha held that the resolution of Sun Life’s appeal had no

practical significance to anybody but the parties on appeal. 

597 F. App’x at 906 n.1. Because Sun Life vigorously

pursued an appeal with limited practical significance all the

way through a petition for a writ of certiorari, this factor

weighs in favor of an award of fees to Group Disability.

11

11 In concluding this factor did not weigh in favor of an award of fees,

the district court stated as follows: “Group Disability admits that this

factor does not weigh in favor of an award of fees. Instead, Group

Disability argues that this factor is largely inapplicable in an individual

dispute and should therefore be deemed inapplicable here.” The district

court’s decision is based upon a misreading of the record. In its request

for fees, Group Disability specifically argued that because the litigation

fee award was well grounded in law and equity, Sun Life’s appeal from

that award did not present a significant legal issue. It is certainly true that

in its reply in support of an award of fees, Group Disability conceded that

the other portion of this factor, benefit to others, was irrelevant. Notably,

however, there is nothing in Group Disability’s reply withdrawing its

previous argument that because Sun Life’s appeal did not present a
18 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

5. Relative Merits of the Parties’ Positions

Given that Group Disability prevailed on every matter at

issue in Micha, the district court correctly concluded this

factor favored an award of fees because Group Disability

prevailed on appeal.

Properly viewed, each of the Hummell factors weighs in

favor of an appellate fee award to Group Disability. The

district court’s contrary conclusion and denial of an award of

appellate attorney’s fees amounts to an abuse of discretion.

IV. CONCLUSION

For those reasons set out above, the district court’s denial

of Group Disability’s motion for appellate attorney’s fees and

costs is REVERSED and the matter is REMANDED to the

district court for the calculation of a reasonable award of fees

and costs.

significant legal issue, this factor still favored an award of fees. Thus, the

district court erred in concluding Group Disability conceded the

inapplicability ofthis entire factor, instead of conceding the inapplicability

of the benefit-to-other-participants portion of the fourth Hummell factor.
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 19

BERZON, Circuit Judge, concurring:

I concur in the opinion with the following observations:

Were we reaching the issue,

1

I would hold that both

Supreme Court precedent and our own case law compel the

conclusion that ERISA § 502(g)(1) fees should be awarded

on appeal to a party that successfully defends the fees it was

awarded at the district court. Put another way, “fees-on-fees”

should be nigh unto automatic, in ERISA cases as in others. 

We should not troop through the Hummell factors, see

Hummell v. S. E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.

1980), with regard to the fees appeal—even though, as the

opinion in this case illustrates, the result of doing so properly

is likely another fee award.

The case law on fee-shifting statutes is well-settled. See,

e.g., Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161–63 (1990);

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 408–09

(1990). “[C]ourts have uniformly held that time spent

establishing the entitlement to and amount of the fee is

compensable under federal fee-shifting provisions . . . .” 

Blixseth v. Yellowstone Mountain Club, LLC, 854 F.3d 626,

629 (9th Cir. 2017). We have applied this principle in

1 As the main opinion notes, Group Disability affirmatively invited

use of the Hummell factors in analyzing fees for the fees appeal, arguing

exclusively on that basis to the district court. See Op. at 7–9. Only on

appeal did Group Disability assert that appellate fees are nearly always

available for the successful defense of a fee award. We have discretion to

“consider an issue raised for the first time on appeal if the issue presented

is purely one of law and the opposing party will suffer no prejudice as a

result.” United States v. Valdez-Novoa, 780 F.3d 906, 914 (9thCir. 2015)

(internal quotation marks omitted). The majority has opted not to exercise

that discretion here. See Op. at 9. I accede to that decision.
20 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

numerous contexts. See, e.g., id. (fees under 28 U.S.C.

§ 1927); In re S. Cal. Sunbelt Developers, Inc., 608 F.3d 456,

462 (9th Cir. 2010) (fees following dismissal of an

involuntary bankruptcy petition); Camacho v. Bridgeport

Fin., Inc., 523 F.3d 973, 978, 981 (9th Cir. 2008) (fees under

the Fair Debt Collection Practices Act); see also Kinney v.

Int’l Bhd. of Elec. Workers, 939 F.2d 690, 693 (9th Cir. 1991)

(common-law fee-shifting).

The underlying logic is that unless securing a fee

entitlement on appeal is cost-free to the party awarded fees on

the merits, the initial fee award will be effectively reduced or

eliminated, fundamentally undermining the purposes of the

fee-shifting provision. See Bandak v. Eli Lilly & Co. Ret.

Plan, 587 F.3d 798, 803 (7th Cir. 2009); Camacho, 523 F.3d

at 981. These purposes include creating an incentive for

attorneys to provide representation in cases where counsel

might otherwise be difficult to obtain, or where it is

particularly important that the represented party obtain the

full monetary amount due, without having to expend an

additional sum to secure it. See, e.g., Jean, 496 U.S. at 164

(“If the Government could impose the cost of fee litigation on

prevailing parties . . . , the financial deterrent that the EAJA

aims to eliminate would be resurrected.”); Ne. Ohio Coal. for

the Homeless v. Husted, 831 F.3d 686, 724–25 (6th Cir. 2016)

(“[D]iluting the overall fee award by failing to provide fully

compensatory fees for fees undermines the congressional

intent behind [§ 1988], which is to encourage the private

prosecution of civil rights suits through the transfer of the

costs of litigation to those who infringe upon basic civil

rights.” (internal quotation marks omitted)). In such cases, if

fee-shifting is to mean anything, it must mean that the

prevailing party actually obtains the benefit of its fee award,

rather than depleting or exhausting it in the inevitable follow-
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 21

on litigation. Moreover, if the party prevailing as to fees will

not get its full fees for defending the award, the opposing

party has leverage to force a discount to the fee award in

settlement, without pursuing an appeal and expending its own

attorneys’ fees to do so. Husted, 831 F.3d at 724.

There is no doubt that the ERISA fees provision at issue

here, 29 U.S.C. § 1132(g)(1), is a fee-shifting provision of the

sort covered by these precedents. The ERISA fees provision

contemplates that a court may award reasonable fees and

costs “[i]n any action . . . by a participant, beneficiary, or

fiduciary.” Id. (emphasis added). A plain reading of this

language makes clear that Congress intended the fee-shifting

provision to apply to the “action” as a whole, rather than to

discrete aspects of it. Nor does anything in the statute suggest

that the fee award qualifies as damages or operates as a

sanction; where the fees are part of a damages or sanction

award, the party who wins the fee award is not entitled to fees

incurred in defending it on appeal. Sunbelt, 608 F.3d at 464

(“The distinction . . . is between those statutes which permit

recovery of attorney’s fees as damages, and which are

therefore consistent with the American Rule, and those which

permit the recovery of attorney’s fees qua attorney’s fees and

therefore create an exception to the American Rule.”

(citations and internal quotation marks omitted)); Blixseth,

854 F.3d at 629 (“[T]he Supreme Court [has] distinguished

fee-shifting provisions, where eligibility turns on the merits

or outcome of the litigation and costs are shifted for the

litigation as a whole, from sanctions statutes like the former

version of Rule 11, where eligibility turned on whether a

specific pleading was well-founded and costs are shifted only

for a discrete portion of the litigation.”).
22 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

Moreover, the Supreme Court has referred to § 1132(g)(1)

as a “fee-shifting” provision and as a “statutory deviation[]

from the American Rule.” Hardt v. Reliance Standard Life

Ins. Co., 560 U.S. 242, 253–54 (2010). And the standard for

ERISA fees under Hardt focuses on the action as a whole, not

on success on any individual component of the action. “A

claimant does not satisfy th[e] requirement [of achieving

some success on the merits] by achieving trivial success . . .

or a purely procedural victory, but does satisfy it if the court

can fairly call the outcome of the litigation some success on

the merits without conducting a lengthy inquiry into the

question whether a particular party’s success was substantial

or occurred on a central issue.” Id. at 255 (emphasis added)

(alterations and internal quotation marks omitted).2

The opinion in this case gets halfway to an “automatic

entitlement rule” by concluding that the district court was

required to consider the entire litigation under its second

Hummell analysis. As long as the second Hummell analysis3

2 Baker Botts L.L.P. v. ASARCO, LLC, 135 S. Ct. 2158, 2164–66

(2015), does not support a contrary conclusion. Baker Botts held that the

statute at issue in that case—§ 330(a)(1) of the Bankruptcy Code—was

not a fee-shifting statute that displaced the ordinary American Rule. Id.

Section 330 authorizes a court to award “reasonable compensation for

actual, necessary services rendered,” 11 U.S.C. § 330(a)(1)(A), a phrase

the Supreme Court held “neither specifically nor explicitly authorizes

courts to shift the costs of adversarial litigation from one side to the

other.” Baker Botts, 135 S. Ct. at 2165. Consequently, the Court held,

there was no basis to conclude that fees-on-fees were allowed under § 330. 

Here, by contrast, there is no question that the provision at issue is a feeshifting provision, for which fees incurred on appeal are allowed.

3 Or the third Hummell analysis. Or the fourth. Among the problems

with repeating the Hummell analysis with every fee request is that it forces

parties back to court to adjudicate fees from prior litigation adjudicating
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 23

accounts for everything that preceded it, a party’s fee

entitlement isn’t likely to change from one stage of litigation

to the next. The reasons for upholding fees from the district

court will apply equally to granting them for the appeal. The

result is, in effect, something close to the ordinary fees-onfees approach this court has applied in other fee-shifting

contexts.

But if the effect is largely the same, refusing to adopt the

ordinary approach is all the more difficult to justify. As

noted, the ERISA fees provision, 29 U.S.C. § 1132(g)(1), is

not meaningfully different from any other fee-shifting

provision controlled by Jean. See Bandak, 587 F.3d at

802–03. Of course, we do require a Hummell analysis before

ERISA fees will be awarded. Simonia v. Glendale

Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1119 (9th Cir.

2010). But nothing in Simonia requires that the Hummell

analysis be performed more than once, or separately at the

fees-on-fees stage.

The amount of a fee award may be determined separately

at the fees-on-fees stage, with the filing of a new fee

application. See Jean, 496 U.S. at 163 (“[N]o award of fees

is ‘automatic.’ . . . Exorbitant, unfounded, or procedurally

defective fee applications—like any other improper position

that may unreasonablyprotract proceedings—are matters that

the district court can recognize and discount.”). But as Jean

also stresses, the entitlement to fees-on-fees and the amount

of such fees are distinct questions. Id. at 161–63; see also

fees. The Supreme Court has disapproved of this sort of “Kafkaesque

judicial nightmare of infinite litigation to recover fees for the last round of

litigation over fees.” Jean, 496 U.S. at 163 (internal quotation marks

omitted).
24 SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN

Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998). Under a

fee-shifting statute, the threshold entitlement question is

answered only once.

As the opinion notes, this court has previously conducted

a separate Hummell analysis for fees awarded on an ERISA

merits appeal. Operating Eng’rs Pension Trusts v. B & E

Backhoe, Inc., 911 F.2d 1347, 1356 (9th Cir. 1990); see also

Op. at 9–10 n.7.4 We could, however, limit Operating

Engineers to its procedural posture, and distinguish it from

fees-on-fees disputes such as Micha’s, where the logic

underpinning the automatic entitlement rule is particularly

compelling.

5

See Voice v. Stormans Inc., 757 F.3d 1015,

1016 (9th Cir. 2014).

4

I am less confident than the majority that Credit Managers can be

described as a merits appeal. See Credit Managers Ass’n of S. Cal. v.

Kennesaw Life & Acc. Ins. Co., 25 F.3d 743, 746 (9th Cir. 1994). But

even as a fees-on-fees case, Credit Managers does not preclude an

automatic entitlement here. Credit Managers assumed Hummell

governed, without considering any possible fees-on-fees distinction. Id.

at 752. It is therefore nonprecedential on that point. See Sorenson v.

Mink, 239 F.3d 1140, 1149 (9th Cir. 2001) (“[U]nstated assumptions on

non-litigated issues are not precedential holdings binding future

decisions.” (citation omitted)); Estate of Magnin v. C.I.R., 184 F.3d 1074,

1077 (9th Cir. 1999) (“When a case assumes a point without discussion,

the case does not bind future panels.”).

5 Because Jean requires a single fee entitlement decision under feeshifting statutes such as this, the approach taken in Operating

Engineers—a separate entitlement analysis for defending a merits victory

on appeal—is almost certainly wrong. But as the present case concerns

only fees for a fees appeal, Operating Engineers has no direct application. 

Moreover, like Credit Managers, Operating Engineers assumes, without

explanation, that Hummell applies a second time to appellate fees, and so

likely does not bind future panels. Operating Engineers, 911 F.2d at

1356–57; Estate of Magnin, 184 F.3d at 1077.
SUN LIFE ASSURANCE V. GRP. DISABILITY BENEFITS PLAN 25

In sum, had the automatic entitlement issue been raised at

the district court, I would have taken this opportunity to make

clear that parties who seek fees on a successful ERISA fees

appeal are not required to prove their entitlement to fees a

second time. As the issue was not raised in the district court,

and as the majority has opted not to exercise its discretion to

decide a new issue raised for the first time on appeal, I concur

in the opinion.