Trustees of the Colorado Statewide Ironworkers (Erector) Joint Apprenticeship & Training Trust Fund v. A & P Steel, Inc.
Trustees of the Colorado Statewide Ironworkers (Erector) Joint Apprenticeship & Training Trust Fund v. A & P Steel, Inc.
Opinion of the Court
This matter is before the court on petitions for rehearing filed by both parties, with a suggestion for rehearing en banc filed by A & P Steel, Inc. Plaintiffs-Appel-lees, the Trustees of the Colorado Statewide Ironworkers (Erector) Joint Appren
The materials submitted by A & P have been reviewed by the members of the hearing panel, who concluded that the original disposition was correct. Accordingly, the petition is denied on the merits.
The petition having been denied on the merits by the panel to whom the case was submitted, and no member of the panel or judge in regular active service on the court having requested that the court be polled, the suggestion by A & P for rehearing en banc is denied.
The Trustees’ petition for rehearing is denied in part and granted with respect to the question of attorney’s fees and costs on appeal.
The Trustees seek an award of attorney’s fees and costs on appeal pursuant to Section 502(g)(2)(D) of ERISA, 29 U.S.C. § 1132(g)(2)(D). That section provides:
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce Section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan—
******
(D) reasonable attorney’s fees and costs of action to be paid by the defendant.
The statutory provision in question is mandatory, and requires an award of reasonable attorney’s fees and costs “[i]n any action ... in which a judgment in favor of the plan is awarded.” Id. See Operating Engineers Pen. Trust v. Cecil Backhoe, 795 F.2d 1501, 1508 (9th Cir. 1986); Kemmis v. McGoldrick, 706 F.2d 993 (9th Cir. 1983). See also May v. Interstate Moving & Storage Co., 739 F.2d 521, 525 (10th Cir. 1984) (dicta).
A & P contests the applicability of the statute to appeals generally. It also contends that the statute does not apply to fees and costs incurred by the Trustees in this appeal because the judgment on appeal was less favorable to the Trustees than the district court judgment. We reject both of those contentions. The mandatory award of fees and costs under 29 U.S.C. § 1132(g)(2)(D) includes reasonable fees and costs on appeal where the outcome is favorable to the plan or plans. See Operating Engineers Pen. Trust v. Cecil Backhoe, 795 F.2d at 1508; Carpenters Amended and Restated Health Benefit Fund v. John Ryan Constr. Co., Inc., 767 F.2d 1170, 1176 (5th Cir. 1985); Plumbers Pension Fund v. Domas Mechanical Contractors, 778 F.2d 1266, 1271 (7th Cir. 1985).
The fact that there was a partial reversal on appeal in this case does not mean the outcome was unfavorable to the Trustees. To the contrary, A & P challenged the entire award by the district
We have heretofore remanded this case to the district court for a redetermination of the damages awarded. On remand the district court is directed to determine the amount of reasonable attorney’s fees and costs on appeal. Such determination should include consideration of any permissible elimination of fees and costs relating to that portion of the appeal in which the Trustees were unsuccessful. Furthermore, in its redetermination of damages required by the partial reversal in this case, the district court should also consider the extent, if any, to which previously awarded attorney’s fees should be modified.
A & P filed no motion for attorney’s fees under 29 U.S.C. § 1132(g)(1) in connection with the outcome of this appeal. It is, of course, permitted to file a motion in the district court. However, we express no opinion with respect to possible attorney’s fees available to A & P pursuant to 29 U.S.C. § 1132(g)(1) regarding its partial victory in this case. See Gordon v. United States Steel Corp., 724 F.2d 106 (10th Cir. 1983).
REMANDED.
Reference
- Full Case Name
- TRUSTEES OF the COLORADO STATEWIDE IRONWORKERS (ERECTOR) JOINT APPRENTICESHIP AND TRAINING TRUST FUND Trustees of the Colorado Iron Workers Pension Fund Trustees of the Iron Workers Welfare Plan of Colorado v. A & P STEEL, INC., a Colorado corporation, and the Western Casualty and Surety Company, a Kansas corporation
- Cited By
- 6 cases
- Status
- Published