United States Court of Appeals

Fifth Circuit



## FILED

November 6, 2003

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 00-51109

_______________



### A NDREA 

### D. H ATTEBERG



### ,

Plaintiff-Appellant,

VERSUS



### R ED 

### A DAIR 

### C OMPANY 

### I NCORPORATED 

### E MPLOYEES 

### ’ P ROFIT 

### S HARING 

### P LAN

AND 

### I TS 

### R ELATED 

### T RUST 

### ;

A DAIR 

### E NTERPRISES



### , I NC 

### .;

F ULBRIGHT 

### & J AWORSKI



### , L IMITED 

### L EGAL 

### P ARTNERSHIP 

### ;

S TEWART 

### W. G AGNON 

### ; J ONATHAN 

### G OLDHOR 

### ; D ONALD 

### M. J ANSEN 

### ;

J OY 

### M. S OLOWAY 

### ; L ISA 

### H ARBOR 

### ; J ERYL 

### G OLUB 

### ;

J OETTA 

### J ANCZAK 

### ; J AMES 

### R ICHARD 

### H ATTEBERG



### ,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Texas



### m MO-97-CV-209

_________________________2

Before J OLLY , S MITH , and

E MILIO M. G ARZA , Circuit Judges.

P ER C URIAM : *

Andrea Hatteberg (“pla int iff”) appeals a

summary judgment in this dispute over various

employee benefit plans. Finding no error, we

affirm.

I.

Plaint iff and James Hatteberg were parties

to a contentious divorce in 1992. Among the

community

property divided between them

were the assets owed to James Hatteberg under the Red Adair Profit Sharing Pla n; Adair

Enterprises, Inc., was the plan administrator.

In 1992, a state court entered a qualified domestic relations order (“QDR O”) regarding

James Hatteberg’s accrued benefits under the

plan. This first QDRO entitled plaintiff to a

small portion of the plan’s assets, so she appealed. The method of calculation of her entitlements remained a matt e r of dispute and

litigation until 1997, when all parties re ached

a mediated settlement respecting the substance

and general form of a final QDRO, recognizing

a larger entitlement for plaint iff. In 1998,

under a second QDRO obtained pursuant to

the settlement, plaint iff

was paid, from the

plan’s trust account, the amount owed her under the settlement.

She was not completely satisfied, however.

She sue d t he instant defendants in federal

co urt, asserting claims arising from the prio r

dispute. The defendants include Adair Enterprises, Inc. (hereinafter “Adair”), whic h was the Plan administrator and a fiduciary to plaint iff, as well as Adair Enterprises employee Joetta Janczak, t he law firm of Fulbright & Jaworski (“Fulbright”), several Fulb right attorneys s erving as James Hatteberg’s divorce

counsel, and several Fulbright attorneys who

advised the plan administrator. Plaint iff claims

the administrator refused to supply requested

information about t he plan and that various

defendants bre a ched their fiduciary duty,

i nterfered with protected rights, engaged i n

prohibited transactions, and committed violations of the Employee Ret irement Income

Security Act of 1974 (“ERISA”).

To “bring focus” to the case, the district

c o urt appointed two special masters with expert ise in the intricacies of ERISA law. The

masters produced reports helpful to the court

in its final determinations. Later, at the court’s

request, p l aint iff and defendants filed respective motion s fo r summary judgment. The

court found the bulk of plaint iff’s claims to be

deficient.

The court ob served that the first claim,

based on alleged violations of 29 U.S.C.

§ 1132’s requirement that plan administrators

supply certain information to beneficiaries, had

merit. The court, however, in the absence of

a federal limit

at io ns period for such a claim,

applied the limitations period of an analogous

Texas state law claim and found that plaint iff’s

claim fell outside the two-year period.

The court also put aside plaint iff’s claims of

b reaches of fiduciary duty. She had argued

that the plan ad ministrator breached its fiduciary duty to her i n five ways: first, by failing

to distribute the pla n benefits to her on

November 14, 1994, the date of distribution to

other plan participants; second, by making a

passthrough amendment, which provided that * Pu rsuant to 5 T H C IR. R. 47.5, the court has

determined that thi s opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.3

all future expenses of the plan’s administration

were to be paid out of plan ass ets; thi rd, by

failing to replace the Fulbright attorney s advising the plan when it learned that other

Fulbright attorney s were representing James

Hatteberg as divorce lawyers; fourth, that the

administrator failed to operate the plan in accordance w it h plan documents by improperly

requiring any domes t ic relations order to be

final before it could be qualified; and fift h, by

engaging in prohibited t ransactions with Fulb right attorneys through unreasonabl e

compensation for legal services “unnecessary”

to the administration of the plan.

The district court rejected each of t he five

theories and plaint iff’s other ERISA-based

theories o f prohibited party-in-interest

transactions, deliberate decepti on, and

i nterferences with protected ri ghts.

Accordingly, the court denied plaintiff’s

motion, and granted defendant’s motio n. It

taxed the cost of the special masters to Adair

and ordered the parties otherwise to bear their

own costs.

II.

We review a summary judgment de novo

and affirm if there is no genuine issue of material fact and the m

o vant is entitled to

judgment as a matter of law. Ramirez v. City

of San Antonio

, 312 F.3d 178, 181 (5th Cir.

2002). An issue of fact is material only if its

outcom e would affect the outcom e of the case.

Id. We draw all reasonable inferences in favor

of the nonmoving party, who in this case is the

plaintiff. I

d. We review the district court’s

procedural decisions for abuse of discre tion.

Celestine v. Petroleos de Venezuela, S.A.

, 266

F.3d 343, 349 (5th Cir. 2001). III.

Irrespective of whether plaint iff established

the elements of a cla im under 29 U.S.C.

§ 1132(c)(1) for Adair’s failure to provide requested information to her as a beneficiary of

the trust, the district court was correct in concluding that her claim is barred by a two-year

stat ut e of limitations. ERISA does not

explicitly provide a statute of limitations

period for actions under § 1 132(c). Because

there was no Fifth Circuit authority on the

issue, the district court looked to analogous

Texas state law to determin e the relevant

limitations p eri od. See M cClure v. Zoecon,

Inc ., 936 F.2d 777, 778 (5th Cir. 1991).

Plaint iff argued that the court should have

applied either the Texas four-year statute of

limitations fo r fraud actions or the residual

four-year period for actions for which no other

limitation s period applies. The district court

was correct in observing that a violation of

§ 1132 is not analogous to fraud 

### S S without

m o re, the withholding of information from a

b eneficiary is quite unlike defrauding a

beneficiary. Despite plaintiff’s assertions, the

evidence does not support the conclusion that

the plan administrators engaged in bad faith in

withholding the information plaint iff had requested. The district court also declined to

apply the Texas residual statute of limitations,

adopting instead the state statute of limitations

for an action for breach of fiduciary duty 

### SS an

action similar to that described in § 1132. 1

Plaint iff also has argued that the four-year

1 In Texas, ther e are two different limitations

periods that might apply, but this court has adopted

the line of cases applying a two-year tort period for

claims o f breach of fiduciary duty. K ansa

Reinsurance Co. v. Stewart Title Co.

, 2 0 F.3d

1373, 1374 (5th Cir. 1994).4

limitations period of T EX

. C IV

. P RAC

. & R EM

. C ODE § 16.004(a)(5) should apply. That statute, regarding breach of fiduciary duty,

became effective on August 30, 1999, some

eighteen months after plaint iff filed the instant

suit. Accordingly, that statute’s limitations

period is inapplicable here.

There is no evidence that plaint iff made any

request for information after August 30, 1995;

she sued on December 12, 1997. Accordingly,

her clai m is barred by the two-year statute of

limitations, and we need not addres s the

dist rict court’s ruling limiting recovery to $1

per day of violation.

IV.

It is undisputed that Adair was plaint iff’s

fiduciary, but she argues tha t a num ber of

other persons should also be considered her

fiduciaries. Among these is Joetta Janczak, a

member of the administration committe e that

managed the Plan. The district court declined

to consider her a fiduciary of plaint iff’s, based

on evidence that she exercised no cont ro lling

authority over the pla n and undertook only

ministerial functions with respect to it.

Plaint iff contends that Janczak is a “named

fiduciary” under 29 U.S.C § 1102(a)(2) and

that the district co urt erred in accepting Janczak’s testimony that her duties were “merely

ministerial.” ERISA deems a person a plan

fiduciary to the extent that he or she “exercises

any discretio n ary authority or discretionary

control respecting management of [the] plan or

exercises any authority or control respecting

management or disposition of its assets,” or

“has any di screti onary authority or

di screti onary responsibility in the

administration

o f [the] plan.” 29 U.S.C.

§ 1002(21)(A)(i), (ii). Though plaintiff claims

that Janczak’s “fiduciary status and liabilit y are not dependent on her actual functions with

respect to the plan,” the district court correctly

noted that this court has hel d that the “actual

authority which a person exer cises over a

plan” is a more important factor than the i r

organization title with respect to a plan. S ee

Donovan v. Mercer

, 747 F.2d 304, 308-09

(5th Cir. 1984).

The k ey, t hen, is the factual matter of

whether Janczak was more than a “merely

ministerial” member of the plan comm ittee.

Plaint iff n o tes that Janczak was extremely

knowledgeable about the plan, sent letters directing distributions from the plan, an d of ten

co mmunicated with the Fulbright attorneys

about the plan. These facts, however, do not

suggest that Janczak exercised a level of discretion that should be characterized as control

or authority. To the contrary, these facts are

quite consistent with the duties and knowledge

t hat should be expected of a “minist er ial”

member of the plan committee. Janczak’s testimony and other evi dence support the

conclusion that her duties did not relate to the

substance of the management of the plan. The

district court reas o nably concluded that she

was not plaintiff’s fiduciary.

Plaint iff also argue s t hat Adair’s Fulbright

attorney s should be considered her fiduciaries.

She alleges something approaching a conspiratorial relationship among them, to hijack the

plan and l oot its assets through thei r control

over the plan administrators. The key issue in

determining whether the Fulbright attorney s

were fiduciaries is the level of control the lawyers exercised over the decisionmaking. I d .;

29 C.F.R. § 2509.75-5. The district court held

that “there is no evidence that any Fulbright &

Jaworski attorney exercised c ontrol or

authority over the plan at any time.”5

Plaint iff contends the district court ignored

evidence in her favo r. Particularly, she says

the plan committee relied only on the advice of

Fulbright lawyer Goldhor regarding the requirement of finalit

y b efo re payment. Fulbright lawyer Jansen, she says, had authority to

determine whe t her the Hatteberg QDRO’s

were qualified under ERISA.

Certainly, Goldhor, Jansen, and other Fulbright lawyers gave a dvice to the pl an

committee, and doubtless their advice at time

caused the committee to a ct in ways it

otherwise would not have. But these activities

are consistent with a normal relationship

between lawy er and client 

### S S the committee

would not have solicited the aid of attorney s if

it did not intend t o act on their advice. It is

unwarranted to infer from the fa ct that the

Fulbright law y

ers shaped the committee’s view

of their legal obligations that they became the

de facto controllers of the plan assets, and we

see no indication that the attorney s formulated

any sort of scheme to loot the plan of its

assets.

Plaint iff also maintained that Fulbright divorce attorney s who represented James Hatteberg sho uld be considered fiduciaries, on the

t heory that they were part of the larger

conspiracy among Fulbright attorney s t o

control the plan and loot its assets f or thei r

own use. Again, there is no evidence to

support this conclusion. Accordingly, the

district court acted properly in denying that the

Fulbright divorce attorney s were plaint iff’s

fiduciaries.

Finally, plaint iff ins i sts that James Hatteberg

was o ne of her fiduciaries, again by virtue of

exercising “de facto discretionary control and

authority ove r t he Plan’s management . . .”

while working in concert with t he Fulbright attorneys. As the dist rict court observed,

however, James Hatteberg should not be

considered a fi d uciary. Although he

improperly requested that the plan

administrator not disclose certain information

to the plaint iff, his request was not tantamount

to control, even if the plan a dministrators

eventually failed to disclose the requested

information because of t heir mistaken

understanding of ERISA’s requirements.

A s to the fiduciary status of Jancza k, the

various oth e r Fulbright lawyers, and James

Hat t eberg, there remains no genuine issue of

material fact to be resolved. The district

court’s conclusions are well reasoned.

V.

A.

The district court found no basis to believe

that the plan fiduciaries managed assets so as

to use them as a litigation weapon in the state

court proceed ings, in violation of ERISA’s

“exclusive purpose” and “anti-inurement” prov isions. The record shows that the

administrators did not illicit ly “profit” from the

funds, or were unreasonable administrat ive

expenses w ere deducted from plan assets.

Retaining the Fulbright atto rneys to give

advice on complex and obscure ERISA issues

was reasonable. To support her arguments,

plaint iff provides little more than allegations of

such conspiratorial b e havior. There remains

no genuine issue of material fact.

B.

Plaint iff claims the plan administrators

breached t heir fiduciary duty of prudence by

failing to establish and follow reasonable

QDRO procedures as required by 29 U.S.C.

§ 1056(d)(3). Particularly, she complains that

Adair improperly delayed recognition of the

disputed family court DRO as a QDRO,6

preventing her timely receipt of benefits.

There is no requirement under ERISA, or

under the plan, that an order be final before it

is qualified. Though plaintiff became a

fiduciary upon entry of the First QDRO, it was

not establis hed h ow much of the plan assets

sh e was entitled to receive until the entry of

the final QDRO in 1997. As the district court

concluded, Adair’s unnecessary delay in qualifying the domestic relations order was in good

faith and, according ly, did not constitute a

breach of fiduciary duty. The record does not

show otherwise, and there is no genuine issue

of material fact.

C.

Plaint iff alleges that the plan administrators

engaged in a prohibited transaction when they

hired Fulbrig ht lawyers to advise the plan on

various legal matters. Title 29 U.S.C. § 1106-

(a)(1)(c) prohibits a plan fiduciary from

causing a plan to engage in transactions that

allow the furnishing of

services between the

plan and a pa rt y in interest. Reasonable

arrangements for legal and othe r services

necessary to operate the plan a re excepted,

however, if the compensation paid is

reasonable. 29 U.S.C. § 1108(b)(2).

The district court properly found that the

$6,389.35 paid to the Fulbright attorney s by

the plan was a reasonable fee for legal research

services necessary to the operati on of the plan.

Certainly, it does not seem an excessive fee,

considering ERISA’s complexities.

As part of her claim of “prohibited

transactions” between the adm inistrators and

the Fulbright lawyers, plaint iff alleges that the

Fulbright lawyers operated primarily to contro l

the assets o f t he plan for their own interests.

There is no substant ial evidence for this accusation, so there is no genuine issue of material fact.

D.

Plaint iff argues that because the plan

documents provided to he r did not address

w h ether plan expenses were to be deducted

from plan assets, t he administrators were

prohibited from making expense deductions.

Ad m inistrators are required under ERISA to

operate a plan in accordance with its written

terms. In this case, however, the plan was

amended, as allowed under its original terms,

so as to permi

t expense deductions.

Accordingly, it was within th e term s of the

Plan to deduct expen ses from assets at the

time when the administrators did so.

The district court also noted, convincingly,

that t he passthrough amendment did not reduce plaint iff’s vested b enefit account, so it

did not thereby

violate the anti-cutback

provisions of ERISA; the expenses were paid

before earnings an d losses were allocated to

individual accounts. Accordingly, there is no

genuine issue of material fact.

VI.

A.

As we have said, plaint iff asserts defendants

engaged in transactions for parties-in-interest

in violation of 29 U.S.C. § 1106(b). She also

argues that even if James Hatteberg and the

Fulbright attorney s advising the plan are no t

fiduciaries, she has a claim against them for

engaging in party- i

n-i nterest transactions under

§ 1132(a)(3).

Again, plaint iff argues that the Fulbright divorce attorneys’ representation of James Hatteberg, while other Fulbright attorney s advised

the plan, constitutes a transaction prohibited

by 29 U.S.C. § 1106. As noted, under 297

U. S .C. § 1108(b)(2), there is a safe harbor

from § 1106 for provision of legal services,

such as those provided by the Fulbright

lawyers to the administrators, s o long as no

m o re than reasonable compensation is paid.

The district court observed that there was no

evidence of a legal or ethical conflict of

interest in the administrators’ retention of the

Fulbright attorneys, nor th a t unreasonable

compensation was p aid to them. Even if,

under Wildbur v. ARCO Chem. Co.

, 974 F.2d

631, 645 (5th Cir. 1992), plaintiff was one of

Fulbr i ght’s clients for purposes of providing

ERISA advice to the plan, the record does not

support a finding of a conflict of interest. As

th e district court noted, there services were

very “limit

ed” and the lawyers were not

unreasonably com

p ensated. There is no

genuine issue of material fact.

B.

Plaint iff alleges “deliberate deception” by a

fiduciary under Varity v. How e , 516 U.S. 489

(1996), in which the Court held that an

employer acted as a fiduciary and breached its

fiduciary duties when it made false

representations to partic ipants in its ERISA

plan about the security of transfer ring their

accounts. Plaint iff claims Varity is applicable

to the facts of this case. V arity

, id. at 502-03.

The district court held that plaint iff had not

established tha t the plan administrators made

misrepresen t at ions to plaintiff to induce

material reliance. Plaintiff complains,

however, that a joint account was not created

and that plan administrators lacked knowledge

about certain intricacies of the plan.

If these facts are tru e and constitute

failings, they

are not d eliberate deceptions

under Varity

, in which the court required

“lying” and “deceiving” in or d er to premise liabilit y. I d

. at 506. Plaintiff’s inference that

the plan ’s fiduciaries and parties-in-interest

intentionally engaged in a plan of deception to

enrich themselves is not supported by

eviden ce. Moreover, the V arity theory is

inapplicable to any of the Fulbright attorney s

or Janczak, because they w ere not plaintiff’s

fiduciaries. S ee id. at 492. Accordingly, there

is no material issue of fact.

C.

Plaint iff presses a clai m for “interference

with protected ri ghts” under 29 U.S.C. §

1140. In a § 510 action, usually brought by an

employee against an employer, a plaint iff must

show intent to discriminate. This court has applied § 510 outsi de t he employer-employee

context since deciding Lynn v. Lynn

, 25 F.3d

280, 284 (5th Cir. 1994). A plaint iff must offer evidence from which it can be inferred that

defendant intended to discriminate against him

in realizing benefits under a plan. Id.

Plaint iff contended that Adair’s opposition

to her interests during the contested state proceedings surrounding t he first QDRO

consti tuted “discrimination against a

participant or beneficiary for exercising any

right to which [she] is entitle d under the

provisions of an employee benefit plan.” The

district court observed, however, that

t hro ughout the litigation, plaintiff was not in

fact forced to relinquish any rights, but was

fully entitled to, and did avail herself of, t he

state appella t e system to challenge the trial

court’s calculation of her entitleme nt s in the

first QDRO. Adair’s trial strategy in actively

opposing plaint iff’s motion and appeals in state

court litigation does not constitute a violation

of § 1140. As the di

stri ct court noted, the

state c o urt litigation process and settlement

negotiations are not topics properly reviewed

under ERISA. See Matassarin v. Lynch , 1748

F.3d 549, 569 (5th Cir. 1999).

VII.

A.

Plaint iff complains that her non-ERISA

claims were severed from the other

proceedings, including her claims a sserted

under t he Racketeer Influenced and

Corrupti on Organization Act and her claims

based on t heo ries of negligent

misrepresentati on, l

egal malpractice, and abuse

of process. The court found that “these

claims, while each relying on the same general

facts, are separate and distinct from the

remaining claims asserted under” ERISA.

Indeed, they are.

The non-ER ISA claims are quite different

in purpose and content from the ERISA

claims. In a case already complicated by diverse and difficult issues of ERISA law, it was

no abuse of discretion for the district court to

deal wi t h plaintiff’s non-ERISA claims

separately.

B.

As the district court noted, thi s case

“involves a myriad of issues with each being

briefed in exhaustive detail by the parties.” To

bring focus to the case, t he court appoi nted

two speci al masters with expertise in ERISA

law, pursuant to F ED

. R. C IV

. P. 53.

Plaint iff contends the appointme n t of special masters was unnecessary, because the

“facts and law on her ERISA claims were

clear,” and the appointm e nt would lead to

“unwarranted delay and expense.” But even a

short reading of the i ssues in the case reveals

that it revolves around difficult and unfamiliar

areas of law.

Plaint iff also avers that the special masters were in some way suborned and insinuates that

the extensive redrafting of the masters’ report

was undertaken at the improper urging of the

district court, which, she states, intended to

undermine the neutrality of the report. More

likely, the need to redraft was caused by the

difficult y of the ERISA issues in the case. It

was no abuse of discretion to appoint and rely

on special masters here.

C.

T h e district court made its inquiry

concerning retention of cou nsel after the

masters’ repo rt raised the possibility that

plaint iff might prevail on some issues. Plaint iff

indicated a willingness to secure counsel at an

appropriate time, and the court directed her to

do so. She asserted no opposition to the order

at the time and did indeed retain counsel. She

eventually terminated counsel and resumed

r epresenting herself pro se after complain ing

that she was sho r t of funds to support a

separate attorney

.

Plaint iff avers that when she failed to object

to the order to retain

legal counsel, she had

been led to believe by the district court that

she might succeed on some issues and that the

court intended to order mediation. That these

hopes were disappointed apparently forms the

ba sis of her objection to the order to retain

counsel. The order, a reasonable response to

reports from the special masters, was no abuse

of discretion.

D.

ERISA provides that in “any action . . . by

a particip a nt, beneficiary, or fiduciary, the

court in its discretion may allo w a reasonable

attorney’s fee and costs of action to either

party.” 29 U.S.C. § 1132(g)(1). Plaintiff argues that the refusal to allow her to recover

her attorneys’ fees was an abuse of discretion.9

She notes that sh e did

prevail on her initial

claim for clarification and enforcement of her

right to a qualified domestic relations order

and a distribution. Indeed, this issue was the

core of the disagreement between her and the

defendants, though it was far less an issue in

federal district court than at the state level and

throughout the mediation process.

Defendants note that plain t iff’s few

success es in the course of the litigation

occurred while she was wo rking p ro se

, so

they urge that, as in Matassarin v. Lynch

, 174

F.3d 549, 570 (5th Cir.1999) , no attorney s

fees should be due a pro se litigant. There was

no abuse of discretion in denying fees.

Plaint iff urges, however, that the district

court improperly failed to consider t he five

“ Bowen factors” to be applied in awarding fees

in ERISA disputes. See Iron Workers Local

No. 27 2 v. Bow en , 624 F.2d 1255, 1265-66

(5th Cir. 1980). Plaintiff claims that

consid e ration of the Bowen factors is

mandatory in the Fifth Circuit. In R il ey v.

AM R Corp. Subsidiaries Supersaver 401(k)

Capital Accumulation Plan , 209 F.3d 780,

781-82 (5th Cir. 2000), we wrote that a court

“should consider and explicate the five Bowen

factors, and should do so without giving

predominance or preclusive effect to any one

of them

. . . .” Nothing in B owen requires,

however, that a court m ust

, in every case,

elaborate ly and explicitly run its fact pattern

through the five factors in its written opinion,

especially where a litigant has achieved as little

success as has this plaintiff. Furthermore,

plaint iff contri

but ed substantially to the

prolongation of the litigation process by

aggressively pursuing appeals.

E.

The district court denied plaintiff’s recusal motion. It looked unfavorably on her

arguments that the court was biased, noti ng

that she had “quoted isolated words and

phrases from various orde r s entered in this

action to date, arguing the forceful language

used by the Court shows bias or prejudice

against the subject matter of her claims,

extreme favorable predisposition to the

Fulbright Defendants, and undeserved and

excessive bias against t he Plaintiff.” Plaintiff

again quotes isolated words of t he court,

where it characterized several of her factual

and legal arguments as “unnecessarily abusive

and insulting,” “unsupported perso nal veno m,”

“disrespectful and unprofes sional,” and

“outrageous, fri vol ous, and com pl etely

unsupported.” Plaintiff seems especially

exercised th a t the court characterized her

divorce proceedings as “bit ter and acrimonious” and urged her and James Hatteberg

to “put to rest the parties’ divorce” and avoid

turning the proceedings into a “post-mortem”

of the divorce.

There is, however, no good eviden ce that

the court was biased a gainst plaintiff or the

subjec t mat ter of her claims. Although the

court apparently showed irritation with a number of plaint iff’s

arguments and accusations,

the court’s characte r izations of her conduct

had some foundation. The court lacked the

“deep-seated favoritism and unequivocal antagonism that would render fair judgment impossible” and make recusal appropriate. L iteky v. United States

, 510 U.S. 540, 555 (1994);

see also Matassarin , 174 F.3d at 571.

F.

After lengthy discovery, the district court

concluded that there had been “more than adequate time for di scovery.” It overruled

plaint iff’s requests for unlimit ed discovery.

She, however, still wanted documents relating10

to the Fulbright attorneys’ legal advice to

James Hatteberg wi th respect to the di vorce

proceedings. Plaintiff also sought assorted

other documents she insists were relevant to

app ropriate statutory penalties under § 1132

and to her allegations of self-dealing, breaches

of fiduciary duty, and interferences with Hatteberg’s rights under ERISA. In short, she

a r gued that further discovery was necessary

with regard to the bulk of her case.

The district court was in a good position to

decide whether further discovery was needed.

The record is voluminous and detailed and is

additionally enriched by the analysis of the special masters. The court was within its discretion to bring an end to discovery.

AFFIRMED.