The Fifth Circuit concluded that an individual plaintiff was not entitled to attorneys’ fees, even though she persuaded the Fifth Circuit to vacate and remand a summary judgment decision in favor of the Humana Health Plan, because her victory was “purely procedural.”  While ERISA section 502(g)(1) provides that a court “in its discretion may allow a reasonable attorney’s fee and costs of action to either party,” the Supreme Court has made it clear that an ERISA fee claimant must show “some degree of success on the merits.”  Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 255 (2010).  The Supreme Court also ruled many years ago, in a non-ERISA case, that a claimant whose only “victory” is an interlocutory ruling by a court of appeals has not received any relief on the merits.  Hewitt v. Helms, 482 U.S. 755, 760 (1987).

In the case before the Fifth Circuit, the plaintiff had spent time in an eating disorder treatment center and sought reimbursement of fees incurred from the plan.  The plan declined to provide her with coverage because it determined that her hospitalization was not “medically necessary.”  On appeal, the Fifth Circuit concluded that there were disputed issues of fact about whether the treatments were medically necessary and remanded to the district court for additional proceedings.  While the Fifth Circuit’s decision allowed the plaintiff to proceed with her claim, it did not alter the parties’ legal relationship or require that the defendant do something. Accordingly, she had not achieved some degree of success on the merits and was not entitled to a fee award.

The case is Katherine P. v. Humana Health Plan, Inc., No. 19-50276 (5th Cir. June 29, 2020).