FRANCISCO PONCE DE LEON aka FRANK PONCE DE LEON v. International Longshoremen’s

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO PONCE DE LEON aka
FRANK PONCE DE LEON,
Plaintiff-Appellant,
v.
INTERNATIONAL
LONGSHOREMEN’S AND
WAREHOUSEMEN’S UNION—
PACIFIC MARITIME ASSOCIATION
WELFARE PLAN,
Defendant-Appellee.
No. 16-55364
D.C. No. 2:13-cv-05561-DSF-
AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted November 16, 2017**
Pasadena, California
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: NGUYEN and HURWITZ, Circuit Judges, and SEEBORG,*** District
Judge
Francisco Ponce de Leon appeals a district order, denying his request for
attorneys’ fees arising out of an Employee Retirement Income and Security Act
(ERISA) benefits dispute. We affirm.
1. The district court applied the established test for awarding attorneys’ fees
under section 502(g)(1) of ERISA, 29 U.S.C. § 1132(g)(1), which presumes that
fees should be awarded to a claimant who achieves success on the merits absent
“special circumstances” that make an award unjust. Smith v. CMTA-IAM Pension
Tr., 746 F.2d 587, 589 (9th Cir. 1984). The record supports the district court’s
conclusion that Ponce de Leon’s litigation efforts were not responsible for his
success, but were instead “trivial” and “purely procedural.” See Hardt v. Reliance
Standard Life Ins. Co., 560 U.S. 242, 255 (2010) (quoting Ruckelshaus v. Sierra
Club, 463 U.S. 680, 688 n.9 (1983)). Ponce de Leon voluntarily agreed to stay his
litigation soon after filing his complaint and before the Plan filed a responsive
pleading. Thereafter the district court played largely a passive role in Ponce de
Leon’s case—simply staying the action pursuant to the parties’ stipulation pending
resolution of the administrative claims process and then confirming an award that
had already been satisfied. Therefore, the district court made a reasonable
*** The Honorable Richard Seeborg, United States District Judge for the Northern
District of California, sitting by designation.

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determination that Ponce de Leon’s successful recovery of benefits resulted from
his efforts in arbitration rather than from litigation activity.
2. To the extent the district court denied fees because it found that Ponce de
Leon’s success on the merits in arbitration proceedings did not constitute an
“action” within the meaning of ERISA’s fee-shifting rule, this was not error. Fee
recovery under 29 U.S.C. § 1132(g)(1) is not available for pre-litigation
administrative activity. Cann v. Carpenters’ Pension Tr. Fund for N. Cal., 989
F.2d 313 (9th Cir. 1993). While fees expended on administrative proceedings after
a court-ordered remand may be recoverable, see Peterson v. Cont’l Cas. Co., 282
F.3d 112, 122 (2d Cir. 2002), the district court in this case did not compel the
parties to go to arbitration, but instead merely entered the parties’ stipulation to do
so. As a result, the district court concluded that there was no ERISA “action”
properly before the court and thus, no pending litigation onto which Ponce de Leon
could tack his administrative proceedings.
3. Ponce de Leon argues in the alternative that regardless of whether they are
associated with litigation, the arbitration proceedings themselves should be
considered an “action” for the purposes of ERISA fee recovery. Such an
interpretation is inconsistent with our holding in Cann, which limits attorneys’ fees

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to litigation proceedings. Plaintiffs may not circumvent Cann by filing suit before
exhausting administrative remedies, in order to get the benefit of fee recovery.
AFFIRMED.

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