In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-1889 & 10-3083

LISA PAKOVICH,

Plaintiff-Appellee,

v.

VERIZON LTD PLAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:09-cv-00090-MJR-PMF—Michael J. Reagan, Judge.

ARGUED APRIL 6, 2011—DECIDED JULY 22, 2011

Before FLAUM, EVANS, and TINDER, Circuit Judges.

FLAUM, Circuit Judge. This case comes to us for a

second time. Lisa Pakovich worked as a retail sales representative for Verizon when she became disabled and

sought long-term disability benefits under Verizon’s

ERISA plan (“the Plan”) after a series of back surgeries.

On the first appeal, we reversed the district court’s decision that Pakovich was ineligible for long-term disability benefits after the first twenty-four months and
2 Nos. 10-1889 & 10-3083

remanded to Broadspire Services, Inc., the Plan Administrator, to determine her eligibility for benefits during

that time period.

Having not heard from the Plan for almost five

months, Pakovich again filed suit under ERISA, this time

claiming that the Plan’s silence constituted a deemed

denial of her benefit claim. She requested disability

benefits pursuant to ERISA § 502(a)(1)(B), 29 U.S.C.

§ 1132(a)(1)(B), and attorney fees pursuant to ERISA

§ 502(g), 29 U.S.C. § 1132(g). A little over a month

later, the Plan informed her that it would pay the benefits

she requested in her complaint and shortly thereafter

moved to dismiss the case as moot. The district court

denied the motion, issued a judgment against the Plan

for the exact amount it had agreed to pay Pakovich, and

later denied Pakovich’s motion for fees.

We vacate the district court’s decision granting

Pakovich summary judgment on her benefit claim, but

affirm its denial of her fee request.

I. Background

Pakovich initially filed suit under ERISA § 502(a) against

Broadspire, seeking long-term disability benefits from

the ERISA Plan after Broadspire determined that she

was no longer entitled to them (“Pakovich I”). The district

court concluded that Broadspire’s decision to terminate

Pakovich’s long-term disability benefits under the “own

occupation” standard (under which Pakovich must

have been unable to perform the essential functions of
Nos. 10-1889 & 10-3083 3

The suit was originally filed against Broadspire, Verizon 1

Communications, Inc., and AETNA Insurance Company, but

the Plan was later substituted as the proper defendant.

her sales position with Verizon to receive benefits) was

arbitrary and capricious, and thus that Pakovich was

entitled to disability benefits for the first twenty-four

months. It further found that she was not entitled to

disability benefits beyond twenty-four months because

she did not qualify under the “any occupation” standard

(under which benefits were available only if Pakovich

was disabled from all occupations). It thus awarded

Pakovich benefits from May 14, 2004, through July 16,

2004, but denied benefits beyond July 16.

On appeal, we reversed the district court’s decision that

Pakovich was ineligible for benefits beyond twenty-four

months and remanded to the Plan Administrator to

determine her eligibility for benefits during that time

period. Pakovich v. Broadspire Servs., Inc., 535 F.3d 601, 607

(7th Cir. 2008). We also denied her request for attorney

fees, costs, and expenses incurred on appeal. Id. We

issued our opinion on July 24, 2008, and the district court

remanded Pakovich’s claim to the Plan Administrator

on September 4, 2008.

Having not heard whether the Plan would pay “any

occupation” benefits for almost five months, Pakovich

filed a second suit (“Pakovich II”) on January 30, 2009,

under ERISA § 502(a)(1)(B), this time against the Plan,

1

claiming that the Plan’s failure to determine her benefits

between September 4, 2008, and January 29, 2009, con-
4 Nos. 10-1889 & 10-3083

stituted a “deemed denial” of her benefits claim. She

sought all the benefits to which she was entitled under

the terms of the Plan, interest on all unpaid amounts, and

legal fees, costs, and expenses incurred in pursuing

the case.

On March 6, 2009, a little over a month after filing

Pakovich II, Pakovich’s counsel learned from the Plan’s

claim handler that the Plan had agreed to pay her “any

occupation” benefits from July 15, 2004. On April 7, 2009,

Pakovich was sent a letter with a check that paid back

benefits and past due interest owed since 2004. The

letter also indicated that Pakovich would continue to

receive benefits from the Plan as long as she remained

qualified. The payments compensated Pakovich for

the entire amount she sought for her benefit claim in

Pakovich II.

On April 14, 2009, the defendants in Pakovich II filed

a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction,

arguing that the case was moot because the Plan had

paid the benefits Pakovich sought in her complaint and

agreed to continue paying them in the future as long as

she remained eligible. After the district court denied

the motion, Pakovich filed a motion for summary judgment that sought monthly benefits in the amount the

Plan was already paying her and attorney fees. The

Plan cross-moved for summary judgment.

On March 24, 2010, the district court granted summary

judgment for Pakovich, concluding that she was disabled

under the “any occupation” standard and ordering the

Plan to pay Pakovich disability benefits on a monthly
Nos. 10-1889 & 10-3083 5

basis until she turned sixty-five years old or Verizon,

consistent with the terms of the Plan and ERISA, determined that Pakovich was no longer entitled to the benefits. The district court denied Pakovich’s request

for attorney fees in a separate opinion and later rejected

her Rule 60 motion to reconsider that decision.

The Plan appeals the district court’s decision that

Pakovich’s benefit claim was not moot, and Pakovich

appeals the district court’s denial of her request for fees.

After briefly discussing jurisdiction, we review each

argument in turn.

II. Discussion

A. Appellate Jurisdiction

Briefing came in two rounds, the first addressing the

district court’s mootness decision, the second regarding

its denial of Pakovich’s motion for fees. The first briefs

debate whether the matter was a final order under

28 U.S.C. § 1291 when the district court had yet to rule

on Pakovich’s motion for fees. This case comes to us as

one consolidated appeal with nothing pending in the

district court. We thus exercise jurisdiction pursuant to

28 U.S.C. § 1291.

B. Mootness

Pakovich’s complaint in Pakovich II seeks long-term

disability benefits under a deemed denial theory—claiming

that the Plan had not notified Pakovich of whether
6 Nos. 10-1889 & 10-3083

she was eligible for benefits under the “any occupation”

provision almost five months after the district court

remanded her case to the Plan Administrator—and legal

fees under ERISA § 502(g), ERISA’s fee-shifting provision. Despite the fact that the Plan had paid Pakovich

the benefits she requested in her complaint and agreed

to continue paying into the future, the district court

determined that Pakovich’s claim for benefits was not

moot. It then granted Pakovich summary judgment on

her benefits claim, ordered the Plan to pay her longterm disability benefits, and later denied Pakovich’s

request for attorney fees.

On appeal, the Plan argues that the district court

lacked subject matter jurisdiction because the case was

moot after it agreed to pay the benefits Pakovich

requested in her complaint. “ ‘Whether a case has been

rendered moot is a question of law that we review de

novo.’ ” Zessar v. Keith, 536 F.3d 788, 793 (7th Cir. 2008)

(quoting Fed’n of Adver. Indus. Representatives, Inc. v. City

of Chi., 326 F.3d 924, 928-29 (7th Cir. 2003)). We

conclude that Pakovich’s benefit claim became moot

when the Plan paid it in full, but that the district

court retained equitable jurisdiction to adjudicate her

fee claim.

Federal courts lack subject matter jurisdiction when a

case becomes moot. In re Repository Techs., Inc., 601 F.3d

710, 716-17 (7th Cir. 2010); Cornucopia Inst. v. U.S. Dep’t

of Agric., 560 F.3d 673, 676 (7th Cir. 2009). Accordingly,

“if an event occurs while a case is pending . . . that

makes it impossible for the court to grant any effectual
Nos. 10-1889 & 10-3083 7

relief whatever to a prevailing party, the [case] must be

dismissed.” Cornucopia Inst., 560 F.3d at 676 (internal

quotation marks and citations omitted). While an “entire

claim is not mooted simply because the specific relief

it sought has been rendered moot, [to avoid dismissal

based on mootness, the party seeking relief] must . . .

demonstrate that the court’s adjudication would affect

it in some way.” Id.; see also United States v. Segal, 432

F.3d 767, 773 (7th Cir. 2005) (“When making a mootness

determination, we consider . . . whether it is still

possible to fashion some form of meaningful relief to the

[plaintiff] in the event he prevails on the merits.” (internal

quotation marks and citations omitted)). Importantly,

a claim for fees cannot save a case from becoming

moot. Cornucopia Inst., 560 F.3d at 676.

We agree with the Plan that Pakovich’s benefit claim is

moot and that the district court erred in concluding

otherwise. After Pakovich filed her complaint and

before the Plan moved for dismissal, the Plan paid

Pakovich the benefits she requested in her complaint,

including the amount she was owed at the time and the

proper amount going forward. Since Pakovich had received everything she requested in her benefit claim,

that claim became moot and the district court lacked

jurisdiction to enter summary judgment against the

Plan. See Silk v. Metro. Life Ins. Co., 310 Fed. Appx. 138,

139-140 (9th Cir. 2009) (finding that a claim for “own

occupation” benefits became moot after the defendant

paid the benefits) (not selected for publication); see also

Cornucopia Inst., 560 F.3d at 675-76 (holding that a FOIA

claim becomes moot after the government produces all
8 Nos. 10-1889 & 10-3083

documents a plaintiff requests); Holstein v. City of Chi., 29

F.3d 1145, 1147-48 (7th Cir. 1994) (finding a claim moot

where the defendant offered the plaintiff all damages

to which he was entitled).

Finding Pakovich’s benefit claim moot leaves us with

a more challenging question. Because “a claim for attorneys’ fees is separate from the merits of the action,”

Cornucopia Inst., 560 F.3d at 676 (citing Budinich v. Becton

Dickinson & Co., 486 U.S. 196, 200 (1988)), we must

address whether the district court retained jurisdiction

to adjudicate Pakovich’s claim for attorney fees under

ERISA § 502(g) after her underlying benefit claim

became moot. We conclude that it did.

In the FOIA context, courts exercise equitable jurisdiction to adjudicate fee claims in similar circumstances.

Specifically, when a plaintiff seeks information under

FOIA and associated attorney fees, courts retain

equitable jurisdiction to adjudicate the fee claim after

the defendant produces the requested information and

thus renders the FOIA claim moot. See, e.g., Cornucopia

Inst., 560 F.3d at 676-78; Anderson v. U.S. Dep’t of Health &

Human Servs., 3 F.3d 1383, 1385 (10th Cir. 1993) (“Dismissing the [FOIA] action as moot . . . did not affect plaintiff’s right to seek attorney’s fees; the fee request

‘survive[d] independently under the court’s equitable

jurisdiction.’ ” (quoting Carter v. Veterans Admin., 780

F.2d 1479, 1481 (9th Cir. 1986)).

We extend our FOIA jurisprudence into the ERISA

context, and hold that where a plan participant or beneficiary sues to recover benefits under ERISA § 502(a) on a
Nos. 10-1889 & 10-3083 9

deemed denial theory and attorney fees under ERISA

§ 502(g), and the plan pays the benefit claim in full

shortly after the plaintiff files suit, courts retain equitable

jurisdiction to adjudicate the fee claim. Were courts to

lack jurisdiction, opportunistic plans could routinely

delay deciding whether to pay benefit claims until participants and beneficiaries file suit, effectively requiring

them to incur legal costs unrecoverable under ERISA

§ 502(g) in order to receive benefits to which they are

legally entitled. In this case, if plans routinely pay benefit claims in full shortly after participants and beneficiaries file suit, seeking, perhaps, to avoid having to

pay the plaintiff’s costs for bringing the ERISA suit, plans

could significantly blunt ERISA § 502(g). That provision

permits certain ERISA plaintiffs who achieve “some

degree of success on the merits” of their ERISA suits to

recover the legal costs they incurred in achieving that

success. Hardt v. Reliance Standard Life Ins. Co., 130 S.Ct.

2149, 2152, 2158 (2010) (quoting Ruckelshaus v. Sierra Club,

463 U.S. 680, 694 (1983)); see also 29 U.S.C. § 1132(g).

Thus, if courts lacked jurisdiction over claims for

attorney fees in cases like Pakovich’s, a financial barrier

to seeking ERISA benefits would exist such that plaintiffs should sue for benefits only if their expected

recovery of benefits exceeded their legal fees. Such a

barrier would contradict one of ERISA’s primary

policies, to protect “the interests of participants in employee benefit plans and their beneficiaries . . . by providing for appropriate remedies, sanctions, and ready

access to the Federal courts.” 29 U.S.C. § 1001(b). Permitting courts to exercise equitable jurisdiction thus effectu-
10 Nos. 10-1889 & 10-3083

ates Congress’s intent. After concluding that the

district court retained jurisdiction over Pakovich’s claim

for attorney fees, we now turn to the substance of its

decision.

C. Attorney Fees

Pakovich requested attorney fees and costs under

ERISA § 502(g) for her appeal in Pakovich I and for the

entirety of Pakovich II. We denied her request for fees

and costs incurred on appeal in Pakovich I. After, the

district court denied her request for fees in Pakovich II

and her motion for reconsideration under Federal Rule

of Civil Procedure 60(b), which permits courts to “relieve

a party . . . from a final judgment, order, or proceeding

for . . . mistake, inadvertence, surprise, or excusable

neglect,” and, among other things, for “any other

reason that justifies relief.” FED. R. CIV. P. 60(b).

Pakovich challenges the district court’s denial of her

fee claim under ERISA § 502(g) and her motion to reconsider. We review the district court’s initial decision

for abuse of discretion, Herman v. Cent. States, Se. & Sw.

Areas Pension Fund, 423 F.3d 684, 695 (7th Cir. 2005), and

“we apply an ‘extremely deferential’ abuse of discretion

standard” when reviewing the district court’s denial of

Pakovich’s motion for reconsideration, Eskridge v. Cook

Cnty., 577 F.3d 806, 808 (7th Cir. 2009) (quoting Easley

v. Kirmsee, 382 F.3d 693, 697 (7th Cir. 2004)). “Because

relief under Rule 60(b) is ‘an extraordinary remedy and

is granted only in exceptional circumstances,’ a district
Nos. 10-1889 & 10-3083 11

court abuses its discretion only when ‘no reasonable

person could agree’ with the decision to deny relief.”

Eskridge, 577 F.3d at 809 (quoting McCormick v. City of

Chi., 230 F.3d 319, 327 (7th Cir. 2000)).

ERISA § 502(g)(1) provides that “[i]n any action under

this subchapter . . . by a participant, beneficiary, or fiduciary, 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). When the district court denied Pakovich’s

fee petition, our case law provided that only “prevailing parties” were entitled to recover under ERISA

§ 502(g)(1). See, e.g., Sullivan v. William A. Randolph, Inc.,

504 F.3d 665, 670 (7th Cir. 2007). Since, the Supreme

Court held that “a fee claimant need not be a ‘prevailing

party’ to be eligible for an attorney’s fees award under

§ 1132(g)(1).” Hardt, 130 S.Ct. at 2156; see also Huss v.

IBM Med. & Dental Plan, Nos. 10-1061, 10-2749, slip op.

at 27, 2011 WL 1388543, at *12 (7th Cir. Apr. 13, 2011).

Instead, it explained that a claimant must show “ ‘some

degree of success on the merits’ before a court may

award attorney’s fees under § 1132(g)(1).” Id. at 2158

(quoting Ruckelshaus, 463 U.S. at 694). It further wrote

that “ ‘trivial success on the merits’ or a ‘purely

procedural victor[y]’ ” is inadequate, but that it is

sufficient “if the court can fairly call the outcome of the

litigation some success on the merits without conducting a ‘lengthy inquir[y] into the question whether a

particular party’s success was ‘substantial’ or occurred on

a ‘central issue.’ ” Id. (quoting Ruckelshaus, 463 U.S. at 688,

n.9). Hardt did not, however, modify the second step

in evaluating a fee petition. Id at 2158 n.8. Accordingly,
12 Nos. 10-1889 & 10-3083

The five factors include: 2

(1) the degree of the offending parties’ culpability or bad

faith; (2) the degree of the ability of the offending parties to

satisfy personally an award of attorneys’ fees; (3) whether

or not an award of attorneys’ fees would deter other

persons acting under similar circumstances; (4) the

amount of benefit conferred on members of the pension

plan as a whole; and (5) the relative merits of the parties’

positions.

Herman, 423 F.3d at 696 (internal quotation marks and citations

omitted).

after concluding that a party has shown “some degree

of success on the merits” and is thus eligible for fees,

courts must determine whether fees are appropriate.

Huss, slip op. at 27-28, 2011 WL 1388543, at *12. To award

fees, “court[s] must find the non-prevailing party’s litigation position was not substantially justified.” Huss, slip

op. at 28, 2011 WL 1388543, at *12. Although we have

used a five-factor test to inform the “substantially justified” standard, the inquiry focuses on “whether the 2

[d]efendant[’s] litigation position was substantially justified and taken in good faith or whether [it was] out

to harass [the plaintiff].” Id. at *13, slip op. at 28.

We affirm the district court’s denial of Pakovich’s

request for fees and costs. In its initial decision denying

fees and costs, the district court considered Pakovich

a “prevailing party,” concluded that the Plan’s opposition to Pakovich II did not meet the standard of good

faith, and ultimately found a fee award warranted. But
Nos. 10-1889 & 10-3083 13

it nonetheless denied Pakovich’s fee claim based on our

denial of her request for fees on appeal in Pakovich I

and her failure to properly substantiate her claim in

Pakovich II. In particular, it explained that Pakovich

did not provide receipts, invoices, or vouchers to verify

the costs she sought. It further reasoned that there was

no documentation supporting her request for fees that

would indicate a reasonable hourly rate or the amount

of time reasonably spent on the case, among other

things. See Stark v. PPM Am., Inc., 354 F.3d 666, 674 (7th

Cir. 2004) (“The burden of proving the market rate is on

the applicant.”). It wrote that Pakovich submitted

merely an invoice showing the billing charges from her

counsel and someone referred to as “SGS,” whom the

district court could not identify. The district court was

unwilling to speculate on whether the fees and costs

were reasonable, and thus denied Pakovich’s claim.

Pakovich then moved for reconsideration under

Rule 60(b), contending that she had substantiated her

claim in the form of an affidavit reflecting that the parties

agreed that her counsel’s rate of $300 and her paralegal’s

rate of $90 were reasonable. The district court again

denied Pakovich’s claim, this time explaining that she

had attached the affidavit as an exhibit to her motion

for summary judgment instead of her fee petition (she

filed both documents on the same day), and that her

petition did not refer the court to the affidavit filed with

her motion for summary judgment. It further noted that,

among other things, the affidavit purported to include

an exhibit reflecting the time and expenses Pakovich’s

counsel devoted to the litigation that was not attached
14 Nos. 10-1889 & 10-3083

That said, we recognize that exercising equitable jurisdic- 3

tion in cases like Pakovich’s would be unhelpful if similar

plaintiffs could not meet the standard in Hardt. We believe

that a plan participant or beneficiary achieves “some degree

of success on the merits,” and is thus eligible for attorney

fees under § 502(g), where she, as here, seeks to recover benefits

on a deemed denial theory and the plan pays the entire

amount requested shortly after the plaintiff files suit.

to the petition, and that her petition cited to multiple

exhibits that itemized her counsel’s time, but that one

was not attached. Pakovich does not challenge these

findings on appeal.

Thus, we need not determine whether Pakovich

achieved “some degree of success on the merits” under

Hardt or whether the Plan’s conduct was “substantially

justified.” We must decide solely whether the district 3

court abused its discretion by denying Pakovich’s fee

claim based on our denial of fees in Pakovich I and her

inadequate filings in Pakovich II.

Pakovich cites no authority demonstrating that the

district court abused its discretion. First, she requests

that we grant the fees from Pakovich I that we have

already denied, contending that we should reevaluate

our decision in Pakovich I in light of the Plan’s conduct

in Pakovich II. We disagree. On rehearing in Pakovich I,

we explained that “assuming . . . Broadspire Services is

the ‘loser,’ it cannot be said that its position on appeal

was simply to harass Pakovich, when it was defending

the district court’s approach to a novel issue in this Cir-
Nos. 10-1889 & 10-3083 15

cuit.” Pakovich v. Broadspire Servs., Inc., 2008 U.S. App.

LEXIS 17597, at *2 (7th Cir. Aug. 14, 2008). The fact that

the Plan engaged in more questionable conduct after

Pakovich I, which formed the basis of Pakovich II, does not

alter our conclusion that its conduct in Pakovich I was

substantially justified. Pakovich II involves a benefit claim

based on a deemed-denial theory, a theory not pursued

in Pakovich I. Further, to the extent Pakovich asks us to

overturn case law that directs courts to determine

whether the losing party’s position was “substantially

justified,” see, e.g., Huss, slip op. at 28, 2011 WL 1388543, at

*12, she provides no compelling reason for doing so. See

Mers v. Marriott Int’l Group Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1023 n.5 (7th Cir. 1998) (“We

require compelling reasons to overturn Circuit precedent.”).

Pakovich’s arguments for fees incurred in Pakovich II

are similarly unpersuasive. First, she concedes that the

district court had discretion to deny her fee claim, but

points out that the Plan did not challenge the time her

counsel claims to have devoted to the case, her counsel’s

hourly rate, or the costs sought, and argues that the

district court thus abused its discretion in denying fees.

Pakovich misunderstands the law. The district court

was not obliged to award fees merely because the

Plan did not specifically oppose those elements of

Pakovich’s fee claim, especially when Pakovich’s fee

petition nowhere argued that a $300 rate was reasonable;

it merely used that figure to calculate its fees in one

of the exhibits attached to its petition. It was Pakovich’s

burden to present evidence of a reasonable rate, see Stark
16 Nos. 10-1889 & 10-3083

v. PPM Am., Inc., 354 F.3d 666, 674 (7th Cir. 2004), among

other things, and the district court had no obligation

to scour Pakovich’s filings looking for evidence that

might have satisfied that burden. Further, we disagree

with Pakovich’s contention that the Plan conceded in its

opposition to her fee petition that $300 was a reasonable

hourly rate. It merely calculated for the sake of argument

the fees to which it believed Pakovich should be entitled

if the court used the rate Pakovich requested; it did not

concede that the rate was reasonable. Finally, Pakovich’s

argument that her failure to adequately substantiate

her fee request was inadvertent and excusable under

Rule 60(b) is unhelpful. Without more, we find no

abuse of discretion.

III. Conclusion

For the foregoing reasons, we VACATE the district

court’s decision granting summary judgment for Pakovich

on her benefits claim, and AFFIRM its denial of her fee

request.

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