NOT RECOMMENDED FOR PUBLICATION File Name: 24a0371n.06
No. 23-1824
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 27, 2024 KELLY L. STEPHENS, Clerk ) MARK M. MESSING, ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN PROVIDENT LIFE & ACCIDENT INS. CO., ) Defendant-Appellee. ) OPINION )
Before: CLAY, ROGERS, and KETHLEDGE, Circuit Judges.
CLAY, J., delivered the opinion of the court in which KETHLEDGE, J., joined in full, and ROGERS, J., joined in part and in the result. ROGERS, J. (pg. 13), delivered a separate concurring opinion.
CLAY, Circuit Judge. Under the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq., “reasonable attorney’s fees and costs” are available to either
party at the district court’s discretion, so long as that party achieved some success on the merits.
See id. § 1132(g)(1). After successfully appealing the denial of his long-term disability benefits
before this Court, Plaintiff Mark Messing sought attorneys’ fees on remand. Despite his clear
success in getting his monthly benefits reinstated, the district court denied his request. Although
we disagree with the district court’s holding that attorneys’ fees were not warranted in this case,
Messing nonetheless failed to submit sufficient evidence to show the reasonableness of his request
for over $250,000 in attorneys’ fees. For the reasons set forth below, this Court AFFIRMS the
district court’s order denying Plaintiff’s request for attorneys’ fees. No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
I. BACKGROUND
A. Factual Background
For nearly twenty years of his life, Messing worked as a full-time personal injury lawyer.
In August 1985, Messing purchased a long-term disability (“LTD”) insurance policy from
Defendant Provident Life and Accident Insurance Company. The terms of Messing’s policy
provide for lifetime benefits for disability due to sickness starting before the age of 60.
Specifically, if Messing was deemed unable to perform the substantial and material duties of his
occupation, the policy would provide him with monthly payments of $3,080 for life.
After struggling with depression for several years, Messing was admitted to the hospital
for his depression in January 1997. Although Messing attempted to return to work following his
hospitalization, his depression continued to significantly affect his daily life, and he never returned
to full-time capacity. At the time, Messing was approximately 43 years old. In March 1998,
Messing filed a claim with Provident, explaining that his severe depression and psychiatric
condition prohibited him from working as an attorney. Provident approved Messing’s claim.
However, since this initial approval, Messing has faced a consistent uphill battle to receive the
payouts to which he is entitled under the policy that he purchased.
Indeed, mere months after Provident’s approval of Messing’s claim, Provident reversed
course and terminated Messing’s benefits, prompting Messing to bring suit in federal court. After
the district court ruled that it would review the language and application of the policy de novo,
instead of deferring to Provident’s benefits determination, Provident quickly agreed to a settlement
with Messing and resumed monthly payments. Then, in 2007 and 2011, Provident offered lump
sum settlements to Messing, which would have allowed Provident to terminate Messing’s monthly
2 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
benefit payments by paying a mere percentage of the present total value of Messing’s policy.
Messing declined these offers.
Meanwhile, without the extreme stress of his prior occupation as a trial attorney, Messing’s
symptoms related to his chronic depression began to improve. In 2012, Messing was able to stop
taking his depression medicine but continued to regularly attend therapy. Six years later, without
any evidence that Messing’s disability status had changed, Provident initiated a full review of
Messing’s restrictions and limitations. Senior Disability Specialist, Jennifer Crowley, requested
updated records from Messing’s treating psychiatrist, Dr. Laura Franseen. Provident’s in-house
specialist, Dr. Alex Ursprung, then reviewed Dr. Franseen’s report and noted that it was unclear
whether Messing could return to work. Provident also hired an independent consultant to fly in,
Dr. Craig Lemmen, who conducted a lengthy interview with Messing and concluded that “[t]here
[was] no objective evidence that [Messing] would not be able to practice as an attorney, should he
desire to do so.” Lemmen Rep., R. 38-15, Page ID #2494. Based on its spontaneous investigation,
Provident determined that Messing was “in remission” and accordingly terminated Messing’s
payments on October 26, 2018. Although Messing appealed and provided significant competing
evidence that clearly indicated he could not return to performing the substantial duties of his
occupation as a trial attorney, Provident’s appeals division affirmed the termination of Messing’s
benefits.
B. Procedural History
In April 2020, Messing brought suit in district court pursuant to ERISA, seeking the
recovery of withheld benefits and the reinstatement of monthly payments. During the pendency
of this litigation, Provident learned that Messing had performed a handful of legal services between
3 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
1999 and 2013. Based on this information, Provident brought a counterclaim seeking to recover
overpaid benefits pursuant to § 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3).
The district court affirmed the termination of Messing’s benefits, holding that the weight
of the evidence in the administrative record supported the conclusion that Messing was no longer
disabled. In addition, the district court granted Messing summary judgment on Provident’s
counterclaim, concluding that Provident could not show that it had been induced into making
payments it otherwise would not have made.
Both parties appealed, and we affirmed the district court’s judgment disposing of
Provident’s counterclaim. See Messing v. Provident Life & Accident Ins. Co., 48 F.4th 670, 686
(6th Cir. 2022). However, we reversed the district court’s determination that Provident properly
terminated Messing’s benefits. Id. at 682. Applying de novo review, we determined that the
preponderance of the evidence showed that Messing remained unable to return to work as an
attorney. Id. at 679–82. Specifically, only Messing’s doctor, Dr. Callaghan, directly addressed
the question of whether Messing could return to work, and “[h]e squarely stated Messing could
not.” Id. at 680.
Following Messing’s success on appeal and reinstatement of benefits, he sought to recover
his attorneys’ fees and costs in district court. Despite Messing’s clear victory in this litigation, the
district court held that Provident was not sufficiently “culpable” to warrant an award of attorneys’
fees in Messing’s favor. The court highlighted the purported closeness of the case, explaining that
both parties’ positions had merit. Accordingly, the district court declined to grant attorneys’ fees
to Messing. As an alternate holding, the district court held that, based on the limited evidence that
Messing submitted in support of his fees request, the court could not determine whether his
requested amount was reasonable. Specifically, Messing refused to file itemized billing invoices,
4 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
and instead “filed affidavits which simply attest to the total number of hours worked on by each
attorney or paralegal during this multi-stage litigation.” Order, R. 78, Page ID #3570 n.1. Messing
timely appealed the denial of attorneys’ fees and asks this Court to reverse.
II. DISCUSSION
A. Standard of Review
We review the district court’s disposition of an attorneys’ fee motion for an abuse of
discretion. First Trust Corp. v. Bryant, 410 F.3d 842, 851 (6th Cir. 2005). Although this standard
is highly deferential, “to the extent that an exercise of discretion inherently includes subsidiary
legal determinations, those subsidiary legal determinations are reviewed de novo.” Guest-
Marcotte v. Life Ins. Co. of N.A., 768 F. App’x 357, 361 (6th Cir. 2019). We may only reverse the
district court’s decision where the court “relies upon clearly erroneous factual findings, applies the
law improperly, or uses an erroneous legal standard.” Imwalle v. Reliance Med. Prods, Inc., 515
F.3d 531, 551 (6th Cir. 2008) (quoting Wikol v. Birmingham Pub. Schs. Bd. of Educ., 360 F.3d
604, 611 (6th Cir. 2004)).
B. Analysis
To recover attorneys’ fees under ERISA’s fee-shifting statute, a fee claimant must show
“some degree of success on the merits,” as well as her “entitlement to attorney’s fees.” Geiger v.
Pfizer, Inc., 549 F. App’x 335, 338 (6th Cir. 2013). The district court properly recognized that
Messing succeeded on the merits by achieving reinstatement of his long-term disability benefits
and an award of the improperly withheld payments. After concluding that Messing met this
threshold requirement, the district court nonetheless determined that Messing was not entitled to
recover his attorneys’ fees under ERISA by weighing the five “King factors,” which are:
(1) the degree of the opposing party’s culpability or bad faith; (2) the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of 5 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
an award on other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions.
Sec’y of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985). “No single factor is
determinative,” and the district court should consider each factor before exercising its discretion.
Moon v. Unum Provident Corp., 461 F.3d 639, 642–43 (6th Cir. 2006). In this case, the district
court determined that Provident did not act with a sufficient degree of culpability, that Messing
did not seek to resolve a significant legal question regarding ERISA, and that both parties’
positions had merit. Finding that Messing had not made a strong showing on the majority of the
King factors, the district court declined to award Messing attorneys’ fees. We disagree with this
conclusion.
Contrary to the district court’s analysis, factors one, two, three, and five clearly favor an
award of attorneys’ fees.1 In making its ultimate determination regarding the King factors, the
district court largely pinned its analysis on the view that Provident did not engage in any culpable
conduct or bad faith behavior. In fact, the court’s determination that Provident was not highly
culpable permeated its evaluation of nearly every single King factor. See Shelby Cnty. Health
Care Corp. v. Majestic Star Casino, 581 F.3d 355, 377–78 (6th Cir. 2009) (noting that whether a
party is culpable or acts in bad faith can affect the first, third, and fifth factors of the King test). In
contrast to the district court’s conclusion, we view Provident’s repeated attempts to rid itself of its
obligations to Messing as evidence of a highly culpable course of conduct.
1 Both parties agree that Provident is capable of satisfying an award of attorneys’ fees in this case, meaning that the second King factor favors Messing.
6 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
First and foremost, without any new information or any legitimate explanation, Provident
suddenly decided to closely scrutinize and re-evaluate Messing’s eligibility under his benefits plan
after nearly 20 years of making payments. To compound this seemingly culpable conduct,
Provident then supposedly could not find a qualified psychiatrist in the Traverse City, Michigan
area and instead flew in Dr. Lemmen from Ann Arbor to conduct a psychological assessment in a
hotel conference room. Provident then made its decision to terminate benefits based on Dr.
Lemmen’s report and without a shred of affirmative evidence that Messing could return to work;
indeed, Provident neglected to ask Dr. Lemmen to even specifically address whether Messing
could perform the substantial duties of his job as a trial attorney. Cf. Messing, 48 F.4th at 680
(finding that Messing should prevail where Provident’s retained doctor “couched his conclusion
in a double negative—that there was no evidence that Messing could not return to work”). In fact,
Dr. Lemmen’s report lacks even basic recognition of what the substantial duties of a trial attorney
are. “Where a plan administrator engages in an inadequate review of the beneficiary’s claim or
otherwise acts improperly in denying benefits, we have found that attorney fees are appropriate.”
Majestic Star Casino, 581 F.3d at 377. By suddenly reversing course after years of payments, and
by failing to ask its retained psychiatrists to squarely address whether Messing could return to
work and perform the substantial duties of his former job as a personal injury attorney, Provident
acted with the requisite culpability to justify an award of attorneys’ fees in Messing’s favor. Cf.
Moon, 461 F.3d at 643–44 (noting that a defendant is culpable if it selectively reviewed the medical
record or relied on incompetent or biased medical evidence); Heffernan v. UNUM Life Ins. Co. of
Am., 101 F. App’x 99, 109 (6th Cir. 2004) (holding that factors one, two, and five favored an award
of attorneys’ fees where insurance company denied plaintiff’s claim “based on a theory that lacked
7 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
legitimate foundation” and then “sought to defend this theory with reference to isolated snippets
from the record”).
Despite our view that Messing was entitled to his attorneys’ fees based on the King factors,
we cannot say that the district court abused its discretion in alternatively holding that Messing
failed to carry his burden of showing that his requested fees and costs were reasonable. To
determine the amount of reasonable attorneys’ fees, courts typically apply the “lodestar” approach,
which involves calculating “the number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate.” Bldg. Serv. Loc. 47 Cleaning Contractors Pension Plan v. Grandview
Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). Using the lodestar approach, the burden is upon the party seeking fees to proffer evidence
showing that: (1) the hours expended on the ligation were reasonable, and (2) the rates charged
were reasonable. Hensley, 461 U.S. at 433; Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879,
899 (6th Cir. 2020). Although this Court has not mandated “a particular form of proof for
considering the reasonableness of legal fees,” the moving party must submit at least some form of
“evidence supporting the hours worked and rates claimed.” Granada Invs., Inc. v. DWG Corp.,
962 F.2d 1203, 1208 (6th Cir. 1992) (quoting Hensley, 461 U.S. at 433)); see also Gonter v. Hunt
Valve Co., 510 F.3d 610, 617 (6th Cir. 2007) (“To justify any award of attorneys’ fees, the party
seeking compensation bears the burden of documenting its work.”).
Although Messing has carried half of his burden by showing that his attorneys charged
reasonable rates based on the prevailing market rate in the relevant community,2 Messing declined
2 Provident does not challenge that Messing’s attorneys’ fee rates are reasonable, but rather solely argues that Messing has not submitted any evidence to show that the attorneys’ hours expended were reasonable.
8 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
to submit any evidence tending to prove that the hours worked by his attorneys were reasonable.
Parties seeking attorneys’ fees frequently shoulder this burden by submitting itemized billing
records. See, e.g., Hensley, 461 U.S. at 437 (explaining that the fee applicant bears the burden of
“maintain[ing] billing time records in a manner that will enable a reviewing court to identify
distinct claims”); Imwalle, 515 F.3d at 552 (explaining that, to award attorneys’ fees, “the district
court must conclude that the party seeking the award has sufficiently documented its claim” with
“billing time records that are sufficiently detailed to enable courts to review the reasonableness of
the hours expended on the case” (citations omitted)); Mich. Laborers’ Pension Fund v. Envir.
Specialty Servs., Inc., No. 2:19-cv-12146, 2020 WL 1539336, at *3 (E.D. Mich. Jan. 31, 2020)
(noting that plaintiffs met their burden of showing that the time expended on their case was
reasonable by submitting “contemporaneous time and billing records for their work”); Trs. of Sheet
Metal Workers Loc. 7 Zone 3 Health Fund v. Traverse Bay Roofing Co., No. 17-12573, 2019 WL
1474023, at *2 (E.D. Mich. Mar. 18, 2019) (“It is incumbent upon the party requesting a fee award
to . . . document the appropriate hours expended and hourly rates.”).
Instead of submitting these types of records, Messing’s attorneys submitted three affidavits
that summarily stated the hours that they had worked. For example, Messing’s principal attorney
claimed—without accompanying support—that he “personally worked more than 720 hours to
date in representing Mr. Messing in the 3 stages of this representation and litigation,” and that his
senior associate attorney “worked more than 162 hours in assisting” him. Pl.’s Br. in Support of
Att’y Fees, R. 65-6, Page ID #3462. In its brief in opposition, Provident argued that Messing’s
request for fees should be denied, pointing out that Messing failed to support his attorneys’ fee
request with contemporaneous time records or any other evidence. With the benefit of reviewing
Provident’s arguments, Messing was afforded a second opportunity to advocate for attorneys’ fees
9 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
after the district court granted him leave to submit a further reply brief. Yet Messing’s attorneys
still did not submit any evidence of their hours worked. Instead, Messing attempted to flip the
burden onto Provident, arguing that Provident did not submit its own attorneys’ fee affidavits and
failed to raise any specific objections to the reasonableness of the time spent on this case.
Specifically, Messing claimed that he was in possession of “extensive time records,” but would
only provide them if Provident provided evidence of its own. Not only was it Messing’s burden
to establish that his attorneys’ fee request was reasonable, but Provident simply could not make a
“specific” objection without any semblance of a breakdown as to the tasks performed and hours
expended by Messing’s attorneys. And, importantly, Provident has not sought to recover any of
its own attorneys’ fees, meaning that it was under no obligation to produce its own time records
or affidavits stating as much.
In addition, Messing argued that Federal Rule of Civil Procedure 54(d)(2)(B)(iii) does not
require billing time records at all and instead solely requires the movant to “estimate” the
attorneys’ fees sought. Reading Rule 54(d)(2)(B)(iii) in conjunction with Federal Rule of Civil
Procedure 43(c), Messing further argued that issues related to attorneys’ fees may be decided “on
affidavits” alone. But Messing misunderstands these rules and the relevant case law surrounding
attorneys’ fees. Section 1132(g)(1) of ERISA does not automatically award all claimed attorneys’
fees to the prevailing party; instead, either party can seek attorneys’ fees and must prove its
requested attorneys’ fees are “reasonable.” Although an attorney’s affidavit—albeit usually with
billing records attached—may be one way to show that the fee request is reasonable, the Federal
Rules of Civil Procedure do not stand for the proposition that an attorney can baldly assert the total
hours he or she worked on a case and expect the district court to accept this assertion as reasonable.
United Slate, Loc. 307 v. G & M Roofing & Sheet Metal Co., 732 F.2d 495, 502 (6th Cir. 1984)
10 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
(holding that, where the documentation related to the hours reasonably expended on the litigation
is inadequate, “the district court would do violence to its judicial obligations were it to accept the
amounts claimed at their value”). Instead, attorneys must submit evidence—which may validly
include affidavits—that enables a district court to evaluate the amount of time the attorney devoted
to each task, approving or reducing an attorneys’ fee request as it deems appropriate. Id. at 502
n.2 (“The documentation offered in support of the hours charged must be of sufficient detail and
probative value to enable the court to determine with a high degree of certainty that such hours
were actually and reasonably expended in the . . . litigation.”); Gonter, 510 F.3d at 617.
Finally, Messing’s attorneys argued that they made a $110,665 voluntary reduction in the
fee request to promote judicial economy. Based on this large reduction, Messing’s attorneys claim
that the total fees sought of approximately $252,000 was even less than the reasonable lodestar
calculation and therefore should be awarded without the need for itemized billing records.
However, this purported equitable reduction still did not allow Provident to challenge any specific
aspect of Messing’s application for attorneys’ fees, nor did it allow the district court to scrutinize
the hours submitted for each task. For example, Provident could not challenge any particular time
entry as excessive, the vagueness of any time entries, or the necessity of any particular time entry.
Cf. Hensley, 461 U.S. at 434 (noting that the district court should exclude hours that were not
“reasonably expended,” which includes fee request hours that are “excessive, redundant, or
otherwise unnecessary”).
Overall, Messing’s attorneys cannot point to a single case that supports their strategy of
merely stating the total number of hours that they worked in an affidavit without submitting any
supporting evidence. To the contrary, each of Messing’s citations on appeal that pertain to a party
seeking attorneys’ fees actually involve the submission of itemized billing records. See, e.g.,
11 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
Grandview Raceway, 46 F.3d at 1402 (noting that plaintiff submitted—in addition to other
evidence—“billing invoices for [the] entire action,” in which “[e]ach entry [was] accompanied by
a date, a description of the activity involved, the amount of time expended on such activity, and
the total amount owed for that activity”); Blum v. Witco Chem. Corp., 829 F.2d 367, 378 (3d Cir.
1987) (“In the case at bar, several detailed affidavits describing counsel’s labors were filed with
the court, listing the time spent on each matter and its relation to the case.”). For these reasons,
the district court did not err by determining that Messing’s conclusory affidavits were insufficient.
Without any information as to whether the large number of hours expended on Messing’s ERISA
case was “reasonable,” and after Messing was afforded multiple opportunities to submit evidence
to this effect, we decline to compel the district court to provide Messing with yet another
opportunity.
III. CONCLUSION
The district court should have determined that Messing was, at the very least, entitled to
recover his attorneys’ fees after his complete success on the merits in his prior appeal. Provident
abruptly and unexpectedly decided to launch an investigation into Messing’s depression diagnosis
and then based its ultimate determination on the report of a psychologist who did not directly opine
on whether Messing could perform the substantial duties of his prior work as an attorney.
Although this culpable course of conduct could warrant an award of attorneys’ fees in Messing’s
favor, Messing has repeatedly failed to submit evidence of his attorneys’ hours worked. Without
some evidence supporting his attorneys’ assertions as to the hours they purportedly worked, the
district court could not determine whether his request for fees was “reasonable,” as required by 29
U.S.C. § 1132(g)(1). Based upon the foregoing reasoning, the Court AFFIRMS the judgment of
the district court denying Plaintiff’s request for attorneys’ fees.
12 No. 23-1824, Messing v. Provident Life & Accident Ins. Co.
ROGERS, Circuit Judge, concurring in part and in the result. I concur in the
affirmance of the order denying attorneys’ fees, given Messing’s failure below to carry his burden
of showing that his requested fees were reasonable, as explained in the last six paragraphs of Part
II.B of the majority’s thoughtful opinion. For two reasons, however, I would not rule that the
district court erred in its preceding ruling with respect to the five legally relevant factors laid out
in Sec’y of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985), and Sofco Erectors, Inc., v.
Trs. of Ohio Operating Eng’rs Pension Fund, 15 F.4th 407, 433 (6th Cir. 2021). Accordingly, I
do not join that part of the majority opinion.
First, it is rarely advisable for us to rule on issues that do not affect whether to affirm or
reverse. See, generally, Pierre Leval, Judging Under the Constitution: Dicta about Dicta, 81
N.Y.U. L. Rev. 1249 (2006). Here, based on the reasoning of the latter part of the majority opinion,
Messing cannot recover attorneys’ fees regardless of whether or not he met the standard for
attorneys’ fees under the five-part test.
Second, in any event it does not appear that the district court abused its discretion with
respect to the weighing of the relevant five factors. Although our previous opinion reversing the
district court’s merits determination properly employed de novo review, the parties and the district
court all agree that the district court’s rejection of attorneys’ fees at this stage is subject to the
deferential abuse-of-discretion scope of review. Here, the district court applied the correct legal
test, and its opinion does not appear to have made any clearly erroneous factual determinations.
Even if on a less deferential scope of review we might weigh the five factors to support fees in this
case, it is very hard to conclude that the district court abused its discretion in weighing those
factors, in light of the district court’s thoughtful and extensive analysis, see Messing v. Provident
Life & Accident Ins. Co., No. 1:20-c-351, 2023 WL 5497946 *3-8 (W.D. Mich., Aug. 25, 2023).