Thomas Perez, Secretary v. Herbert Bruister, et al, No. 15-60765 (5th Cir. 2016)

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Case: 15-60765 Document: 00513539725 Page: 1 Date Filed: 06/08/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-60765 FILED June 8, 2016 Lyle W. Cayce Clerk THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR, Plaintiff v. HERBERT BRUISTER Defendant -------------------------------------------------------------------------------------VINCENT SEALY, Plaintiff - Appellee v. HERBERT C. BRUISTER; BRUISTER FAMILY L.L.C., Defendants - Appellants Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:13-CV-1001 USDC No. 3:13-CV-1081 Before DAVIS, JONES, and GRAVES, Circuit Judges. Case: 15-60765 Document: 00513539725 Page: 2 Date Filed: 06/08/2016 No. 15-60765 PER CURIAM:* This is the attorneys’ fees portion of a substantial ERISA liability case. See Perez v. Bruister, ---F.3d---, 2016 WL 2343009 (5th Cir. 2016). The district court awarded fees and costs pursuant to ERISA § 502(g)(1), 29 U.S.C. § 1132(g)(1), to attorneys representing plaintiff Sealy. The fee award is joint and several against all "Defendants," which, in the Sealy litigation, included BFLLC. On appeal, it is argued, for the first time, that BFLLC could not have an award of attorneys’ fees rendered against it, or alternatively, that the district court mistakenly included BFLLC because plaintiffs’ fee motion did not seek such an award. It is further argued that the private party attorneys should not be compensated because they added no value to litigation carried out by the Department of Labor. We have reviewed these contentions in light of the briefs, pertinent portions of the record, and the oral arguments. The arguments concerning BFLLC are waived and unreviewable by this court. See In re Lothian Oil Inc., 650 F.3d 539, 542 (5th Cir. 2011); see also Perez v. Bruister, 2016 WL 2343009 at *16 n.31; Wright v. Excel Paralubes, Inc., 807 F.3d 730, 736 (5th Cir. 2015). The further argument against awarding fees is contrary to the district court's findings of fact, which are not clearly erroneous. The fee award judgment is AFFIRMED. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * 2