Day v. AT&T Disability Income Plan, 040915 FED9, 11-17150

Docket Nº:11-17150
Party Name:DAVID DAY, Plaintiff - Appellant, v. AT&T DISABILITY INCOME PLAN, Defendant-Appellee.
Judge Panel:Before: REINHARDT, THOMAS, and CHRISTEN, Circuit Judges.
Case Date:April 09, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

DAVID DAY, Plaintiff - Appellant,



No. 11-17150

United States Court of Appeals, Ninth Circuit

April 9, 2015


Argued and Submitted November 18, 2014 San Francisco, California.

Appeal from the United States District Court for the Northern District of California James Ware, District Judge, Presiding D.C. No. 5:06-cv-01740-JW

Before: REINHARDT, THOMAS, and CHRISTEN, Circuit Judges.


David Day appeals the district court's orders granting in part and denying in part his motions for attorneys' fees in his action filed against the AT&T Disability Income Plan ("the Plan") under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the factual and legal history of the case, we need not recount it here.

"We review for abuse of discretion a district court's decision to award or deny attorney's fees in an ERISA action, as well as a district court's determination of the amount of reasonable attorney's fees." Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (citations omitted). We also review for abuse of discretion a district court's decision to grant or deny prejudgment interest. Simeonoff v. Hiner, 249 F.3d 883, 894 (9th Cir. 2001). "'This court reviews de novo any elements of legal analysis and statutory interpretation involved in an attorney fees decision.'" Trs. of Const. Indus. & Laborers Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1256 (9th Cir. 2006) (citations omitted).



The Plan contends that we lack jurisdiction over Day's appeal of the district court's July 2008 order because Day failed to appeal that order within thirty days of the entry of judgment in June 2010. Although an appellant's failure to file a notice of appeal within thirty days of the entry of judgment ordinarily deprives this court of jurisdiction, Day's failure to do so is not fatal here because the district court subsequently entered an amended judgment.

The Supreme Court has recognized that a district court's decision to amend a judgment may re-start the period during which a litigant may appeal, provided that the amended judgment differs materially from the earlier judgment. See FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12 (1952) (holding that when a "lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered[, ] the period within which an appeal must be taken or a petition for certiorari filed [may] begin to run anew"); United States v. Doe, 374 F.3d 851, 853-54 (9th Cir. 2004) ("Where a district court enters an amended judgment that revises legal rights or obligations, the period for filing an appeal begins anew."). The test for whether an amended judgment materially differs from the prior judgment is a "practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality." Minneapolis-Honeywell Regulator Co., 344 U.S. at 212. The appeal period may be re-set "even where the appeal concerns a different matter from that revised by the district court." Doe, 374 F.3d at 854.

Here, the August 2011 judgment differed materially from the June 2010 judgment. The June 2010 judgment did not resolve (or even mention) Day's underlying ERISA claim and, instead, merely stated that the Plan was entitled to judgment on the offset issue. In contrast, the August 2011 amended judgment specifically addressed the underlying merits of Day's ERISA claim by acknowledging that Day had prevailed on his motion for summary judgment on that claim and providing that he was "entitled to attorney fees and prejudgment interest with respect to his claim for short-term disability benefits." The amended judgment therefore resolved issues which the June 2010 judgment did not address – including, most notably, the merits of Day's claim for short-term disability (STD) benefits – and thus opened a new thirty-day period during which Day could file his notice of appeal. Because it is undisputed that Day filed his notice of appeal during that thirty-day period, we have jurisdiction over his appeal of the July 2008 attorneys' fees order.


The magistrate judge did not abuse his discretion by adjusting downward the lodestar amount in the July 2008 attorneys' fees order. To determine the amount of fees to award in ERISA actions, we use the "hybrid lodestar/multiplier approach" used by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983). ...

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