In Micha v. Sun Life Assurance of Canada, Inc., No. 16-55053 (9th Cir. 2017), a panel for the Ninth Circuit Court of Appeals (the “Panel”) reversed the district court’s denial of appellate attorney’s fees under 29 U.S.C. § 1132(g)(1) and remanded to the district court for calculation of a reasonable award of fees and costs in an ERISA case.
The Panel held that in analyzing a party’s request for appellate attorney’s fees under the Hummell test (enumerated by the Ninth Circuit in Hummell v. S.E. Rykoff & Co., 634 F.2d 446 (1980)), a court must consider the entire course of the litigation, rather than focusing exclusively on the prior appeal. Weighing the five Hummell factors in light of all of a defendant’s conduct, from its wrongful denial of the plaintiff’s claim for ERISA benefits to its filing of a petition for a writ of certiorari, the Panel held that the moving party was entitled to attorney’s fees for the prior appeal, in which the Panel had affirmed an award of litigation attorney’s fees.
The Panel declined to consider the issue, not raised before the district court, whether fees-on-fees should be automatically awarded, without application of the Hummell test.