NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVE NAGY, 

Plaintiff-Appellee, 

 v. 

GROUP LONG TERM DISABILITY 

PLAN FOR EMPLOYEES OF ORACLE 

AMERICA, INC. and HARTFORD LIFE 

AND ACCIDENT INSURANCE 

COMPANY, 

Defendants-Appellants.

No. 16-16160 

D.C. No. 3:14-cv-00038-HSG 

MEMORANDUM*

DAVE NAGY, 

Plaintiff-Appellee, 

 v. 

GROUP LONG TERM DISABILITY 

PLAN FOR EMPLOYEES OF ORACLE 

AMERICA, INC. and HARTFORD LIFE 

AND ACCIDENT INSURANCE 

COMPANY, 

Defendants-Appellants.

No. 17-15491 

D.C. No. 4:14-cv-00038-HSG 

 

*

 This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUN 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted May 14, 2018

San Francisco, California

Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and ZILLY,**

District Judge.

Defendant-Appellants Group Long Term Disability Plan for Employees of 

Oracle America, Inc. and Hartford Life and Accident Insurance Company 

(collectively “Appellants”) appeal the district court’s decision to overturn a denial 

of so-called “own occupation” long-term disability benefits under an employee 

welfare plan governed by the Employee Retirement Income Security Act of 1974 

(“ERISA”), as well as the ensuing award of attorney’s fees to Plaintiff-Appellee 

Dave Nagy (“Nagy”). We affirm the award of “own occupation” benefits but 

vacate the award of attorney’s fees.

1. Where, as here, the district court reviews de novo the denial of benefits, that 

review is limited to the administrative record unless “circumstances clearly 

establish that additional evidence is necessary to conduct an adequate de novo

review of the benefit decision.” Mongeluzo v. Baxter Travenol Long Term 

Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir. 1995) (quoting Quesinberry v. 

 

**

 The Honorable Thomas S. Zilly, United States District Judge for the 

Western District of Washington, sitting by designation.
3 

Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993)). Several such 

circumstances were present here, including “complex medical questions,” “issues 

regarding the credibility of medical experts,” and the fact that the additional 

evidence at issue—a decision granting Nagy social security benefits—“could not 

have [been] presented in the administrative process.” Opeta v. Nw. Airlines 

Pension Plan for Contract Emps., 484 F.3d 1211, 1217 (9th Cir. 2007) (quoting 

Quesinberry, 987 F.2d at 1027). Furthermore, we have recognized that social 

security decisions can be particularly important evidence in ERISA cases. See 

Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 679 (9th Cir. 2011). 

For these reasons, the district court did not abuse its discretion by considering the 

social security decision even though it was not part of the administrative record.

2. The district court evaluated de novo whether Nagy qualified for “own 

occupation” benefits. That mixed question boiled down to whether Nagy’s 

condition rendered him “unable to perform with reasonable continuity” work 

comparable to that he had been “regularly performing” beforehand. Because that 

is “about as factual sounding as any mixed question gets,” we review for clear 

error.1 U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at 

 

1

 Despite the paper-intensive focus of ERISA cases, it remains true that the 

district court “has both the closest and the deepest understanding of the record,” 

U.S. Bank, 138 S. Ct. at 968. Cf. United States v. Hinkson, 585 F.3d 1247, 
4 

Lakeridge, LLC, 138 S. Ct. 960, 968 (2018). Although the facts here may be 

susceptible to more than one interpretation, we cannot say that the district court 

clearly erred in finding that Nagy’s condition rendered him unable to perform work 

comparable to his prior job duties.2 See Ocean Garden, Inc. v. Marktrade Co., 953 

F.2d 500, 502 (9th Cir. 1991) (noting that, for a finding to be clearly erroneous, it 

must “strike us as wrong with the force of a five-week old, unrefrigerated dead 

fish”).

3. “[A]bsent special circumstances, a prevailing ERISA employee plaintiff 

should ordinarily receive attorney’s fees from the defendant.” Smith v. CMTA-IAM 

Pension Tr., 746 F.2d 587, 590 (9th Cir. 1984). No such circumstances exist here, 

so the district court properly decided to award attorney’s fees. Appellants argue 

that the district court nevertheless abused its discretion in awarding fees in the 

amount of $245,305.50. 

First, Appellants maintain that the fee award should not have compensated 

work performed in connection with administrative proceedings ordered by the 

district court regarding so-called “any occupation” benefits that occurred after this 

 

1258-59 (9th Cir. 2009) (en banc) (reviewing deferentially the district court’s 

assessment of paper evidence proffered as part of a motion for a new trial).

2

 The district court also did not err by relying on the opinions of Nagy’s 

treating physicians, especially given that “[t]here is no blood test or other objective 

laboratory test” for Nagy’s condition. Salomaa, 642 F.3d at 677. 
5 

litigation about “own occupation” benefits was complete. Although Appellants 

made this same argument below, and although the district court never addressed it,

Nagy responds only by mistakenly asserting that the district court “addressed every 

argument made by [Appellants].” Nagy has therefore forfeited any other argument

he might have offered in defense to this portion of the fee award, which included 

compensation for work performed by his attorney as well as by a paralegal.

3

 See, 

e.g., Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009). 

Second, Appellants argue that the district court abused its discretion in 

calculating the fee award using an hourly rate of $675/hour for Nagy’s attorney, 

notwithstanding record evidence suggesting that this rate was in line with the 

market rate for similar services performed by attorneys with similar qualifications 

and experience. Appellants maintain, as they did in district court, that the rate 

should have been no higher than $500/hour given the skill of Nagy’s attorney and 

the quality of representation he provided. Nagy again offers no meaningful 

response, so he has forfeited any argument that might have helped his cause here 

too. See id.

 

3

 Indeed, Nagy expressly waived any claim to these fees after oral 

argument. And in any event, the disputed work was performed in connection with 

administrative proceedings regarding “any occupation” benefits that occurred prior 

to a separate lawsuit about “any occupation” benefits. Such work would not be 

compensable under ERISA even if Nagy were to prevail in that lawsuit. See Cann 

v. Carpenters’ Pension Tr. Fund for N. Cal., 989 F.2d 313, 316 (9th Cir. 1993). 
6 

We vacate the award of attorney’s fees and remand for recalculation of that 

award. On remand, the district court should exclude all work performed in 

connection with administrative proceedings and calculate the fee award using an 

hourly rate of $500/hour for Nagy’s attorney. Each party shall bear their own costs 

on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.
1

Dave Nagy v. Group Long Term Disability, et al., 16-16160, 17-15491

FRIEDLAND, J., concurring:

I concur in our decision to affirm the award of “own occupation” benefits 

and to vacate the award of attorney’s fees. I write separately to emphasize that, in 

determining a reasonable hourly rate, district courts must take into account “the 

experience, skill, and reputation of the attorney requesting fees.” Welch v. Metro. 

Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (quoting Chalmers v. City of Los 

Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986)). This means that the “[q]uality of 

representation” is a key factor in determining a reasonable hourly rate. Van 

Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1046 (9th Cir. 2000). District 

courts must of course be guided by the prevailing rate charged in the community

for similar work performed by comparable attorneys, rather than “the rates actually 

charged the prevailing party.” Welch , 480 F.3d at 946. But that is no license to

overlook the skill of the particular attorney requesting fees and the quality of 

representation he or she has provided.

The magistrate judge’s report and recommendation was thorough in many 

respects, but it neglected this crucial inquiry—even though Appellants argued, and 

our precedents instructed, that it was required. The district court did not correct 

FILED

JUN 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

the oversight. This matters because the services of Nagy’s attorney do not appear 

to have been worth anything close to the $675/hour he was awarded.

1

The trial briefs that Nagy’s attorney prepared in district court misstated or

omitted key arguments. For example, the only argument in the opening trial brief 

regarding the crucial opinions of Dr. Early was that those opinions did “not add 

anything except for a continuation of [Nagy’s] symptoms.” That is just wrong. 

And nowhere did Nagy’s attorney point out that at least two medical professionals 

hired by Appellants conducted less-than-careful reviews of Nagy’s medical 

records. Specifically, Dr. Welbel missed Dr. Montoya’s documenting of five-plus 

symptoms of chronic fatigue syndrome, and Dr. Sullivan overlooked Nagy’s prior 

diagnoses of depression. To earn $675/hour, an attorney should be expected to 

find favorable facts like these, especially over the course of 300-plus hours of 

work.

The performance of Nagy’s attorney in this court was similarly 

unimpressive. What follows, for example, is his entire defense of the fee award of 

nearly a quarter-million dollars in the argument section of the answering brief he 

prepared for this appeal:

[The magistrate judge] carefully reviewed the Hummell factors, and as we 

set out in the statement of the case concerning the fee award, she addressed 

 1

 I note that the presumptive ten-percent cap on imposing a “haircut” on the 

number of hours claimed, see Moreno v. City of Sacramento, 534 F.3d 1106, 1112 

(9th Cir. 2008), was no bar to significantly reducing the hourly rate requested.
3

every argument made by [Appellants]. Because [Appellants] have not 

explained why any part of [the] Report and Recommendation is wrongly 

decided, there is no basis to set aside the fee award.

That’s it. And as our disposition describes, neither of those sentences is accurate. 

Furthermore, the portion of “the statement of the case concerning the fee award” 

referenced above—which Nagy’s attorney appears to have produced by copying 

and pasting extended excerpts of the magistrate judge’s report and 

recommendation—fails to explain in any meaningful way why the report and 

recommendation’s reasoning was correct.

Determining a reasonable hourly rate is “inherently difficult.” Chalmers, 

796 F.2d at 1210 (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). But 

that difficulty does not excuse district courts from evaluating the quality of 

representation, particularly when there has been a challenge to whether the level of 

quality justifies the requested hourly rate.