1 Employee Retirement Income Security Act, 29 U.S.C. §§

1001 et seq. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-11050

Summary Calendar

ROBERT D. RILEY,

Plaintiff-Appellant

versus

ADMINISTRATOR OF THE SUPERSAVER

401K CAPITAL ACCUMULATION PLAN FOR

EMPLOYEES OF PARTICIPATING AMR

CORPORATION SUBSIDIARIES,

Defendant-Appellee.

-------------------- Appeal from the United States District Court

for the Northern District of Texas

-------------------- May 1, 2000

Before POLITZ, WIENER, and PARKER, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Robert D. Riley appeals the take-nothing

judgment of the district court in his ERISA 1 suit against

Defendant-Appellee Administrator of the SuperSaver 401K Capital

Accumulation Plan for Employees of Participating AM R Corporation

Subsidiaries (“the Plan”). Riley claims that the Plan failed to

pay benefits owed and breached its fiduciary duty by failing to

provide complete and accurate information about the Plan. The Plan

filed a motion for summary judgment seeking dismissal of Riley’s

action and an award of attorneys’ fees and costs pursuant to §2 29 U.S.C. § 1132(g)(1).

2

502(g) of ERISA. 2 The district court granted the Plan’ s motion in

part by rejecting Riley’s claims against the Plan, but denied the

part of the Plan’s summary judgment motion that sought attorneys’

fees and cos ts. Riley has appealed the adverse judgment on the

substance of his ERISA claims; but the Plan neither cross-appealed

the district court’s denial o f costs and attorneys’ fees nor

briefed that issue to us, so it is waived.

I.

MERITS

We have carefully reviewed the facts as revealed by the record

on appeal, the appellate briefs and record excerpts of the parties,

and the Memorandum Opinion and Order of the district court, in the

context of the applicable law as briefed to us by the parties and

as set forth in the district court’s opinion. As a result of our

review, we are satisfie d that the district court’s clear and

detailed analysis of this case is correct and that the ultimate

ruling on the merits of Riley’s claims is free of error.

Consequently, we would merely waste judicial resources by writing

further on the issues raise d by Riley. We therefore affirm the

take-no thing judgment of the district court for essentially the

reasons set forth in its Memorandum Opinion and Order.

II.

ATTORNEYS’ FEES

As the Plan did not appeal or brief the question of its3 624 F.2d 1255, 1266 (5th Cir. 1980).

4 174 F.3d 606, 613-14 (5th Cir. 1999).

5 Id.

3 entitlement to attorneys’ fee s under ERISA, that issue is not

before us. We are nevertheless constrained to observe that —— even

under the deferential abuse of discretion standard of review

—— the

district court’s ruling on that point could not have been sustained

had it been appealed.

The court began correctly by invoking the five-factor test we

established in Iron Workers Local No. 27 2 v. Bowen

, 3 as quoted in

Dial v. NFL Player Supplemental Disability Plan

. 4 The B owen

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

attorneys’ fees;

3. Whether an award of attorneys’ fees against the opposing

parties would deter other persons acting under similar

circumstances;

4. Whether the parties requesting attorneys’ fee s sought to

benefit all participants and beneficiaries of an ERISA plan or

to resolve a significant question regarding ERISA itself; and

5. The relative merits of the parties’ positions. 5

After quoting all five of the Bowen factors, however, the

district court stated, “[i]n the instant caus e, the Court’s

analysis begins and ends with the degree of Riley’s culpability or4

bad faith.” Thus the court never reached the remaining four B owen

factors. Yet, nothing in B owen

, Dial

, or other precedents on point

can be read to endow the single factor of culpability or bad faith

with exclusive powers of control. By ending its inquiry after

considering only that one factor and ignoring the rest, the

district court abused its discretion.

Irrespective of whether we might agr ee or disagree with the

district court’s analysis of that one factor (indeed had it been

before us de novo , we might well have disagreed with the district

court, given Riley ’s dogged pursuit of the claim in the face of

little or no legal or factual bases, as demonstrated by his failure

to address a number of the Plan’s winning contentions at summary

judgment), the deferential abuse of discretion standard of review

would have prevented us from subs tituting our conclusion for the

trial court’s on that one factor. It is nevertheless conceivable

that the results of an examination of all remaining factors might

have outweighed the absence of culpability or bad faith by

demonstrating that Riley had the ability to satisfy an award of

attorneys’ fees, that such an award would deter other retirees and

plan pa rticipants from pursuing legally and factually meritless

claims, that the Plan’s recovery of attorneys’ fees would benefit

all participants and beneficiaries by recouping Plan assets spent

defending such litigation, and that the relative merits of the

Plan’ s position was (as is obvious) clearly superior to Riley’s.

Had the court considered all the Bowen factors (and any relevant6 Bowen , 624 F.2d at 1266 (emphasis added); see also Dial

,

174 F.3d at 614 (“the district court’s opinion mentions no

relevant non- Bowen factors”).

5 non- Bowen factors as well) and reached conclusions favorable to the

Plan , the court in its discretion might well have awarded

attorneys’ fees to the Plan desp ite the absence of bad faith on

Riley’s part.

Albeit dicta under these circumstances, we are constrained to

write and publish this analysis to dispel any mistaken belief among

the courts of this circuit or potential ERISA litigants that alone

the factor of culpability and bad faith somehow supplants the other

Bowen factors and conclusively determines the o utcome of the

attorneys’ fees issue. To the contrary, B owen makes clear that (1)

the list of five factors to be considered in an ERISA § 502(g)

attorne ys’ fees case is a non-exhaustive, e jusdem generis list

(“[A] court should co nsider s uch factors as the following [five

factors]....[I]n any individual case, however, other considerations

may be relevant as well

. ”) 6 and (2) none among the five listed

factors is entitled to g reater weight —— much less unilaterally

determinative powers

—— than an y of the others (“No one of these

factors is necessarily decisive, and some may not be apropos in a

given case, but together th ey are the nuclei of concerns that a

court should address in applying Section 502(g).”).

In sum, when considering a request for attorneys’ fees under

§ 502(g) of ERISA, the court should consider and explicate the five

Bowen factors, and should do so without giving predominance or6

preclusiv e effect to any one of them; and the court should also

consider relevant non- Bowen factors, if there are any.

III.

CONCLUSION

For the reasons set forth in the district court’s clear and

comprehensive opinion, the ju dgment of that court is, in all

respects,

AFFIRMED.