Secretary, U.S. Dept. of Labor v. Jackson County Hospital, Inc., 2000 U.S. App. LEXIS 10712 (6^th Cir. May 10, 2000) (unpublished)-The Department of Labor (DOL) filed suit against Jackson County Hospital, Inc., seeking restitution on behalf of participants in two self-funded health plans at the hospitals.  The DOL alleged numerous violations of ERISA and breach of fiduciary duties.  Eventually, the DOL negotiated a dismissal, after which Jackson County Hospital and its president, William Brownlow, filed a motion for attorneys' fees pursuant to the Equal Access to Justice Act (EAJA).  The district court denied the motion, and this court affirmed.

            Under the EAJA, a litigant may not recover attorneys' fees from the United States if the government's position was "substantially justified."  Although the district court held that Appellants were "prevailing parties," this did not require an award of fees.  The government presented a substantial case that the hospital and its president were fiduciaries who illegally commingled funds in violation of ERISA.  An ERISA fiduciary "should be defined not only by reference to particular titles, such as 'trustee,' but also by considering the authority which a particular person has or exercises over an employee benefit plan."  See Brock v. Hendershott, 840 F.2d 339, 342 (6^th Cir. 1988).  "Holding money belonging to employees that is meant for a health plan is a core function of an ERISA fiduciary."