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Fifth Circuit: Plaintiff Not Entitled to Attorneys’ Fees For Obtaining Remand on Appeal

By Russell Hirschhorn & Kyle Hansen
July 9, 2020
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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).

Photo of Russell Hirschhorn Russell Hirschhorn

Russell L. Hirschhorn represents plan fiduciaries, trustees, sponsors and service providers on the full range of ERISA and state law benefit and fiduciary issues. From single plaintiff to litigation and arbitration to complex class action litigation, he provides practical guidance, develops unique litigation…

Russell L. Hirschhorn represents plan fiduciaries, trustees, sponsors and service providers on the full range of ERISA and state law benefit and fiduciary issues. From single plaintiff to litigation and arbitration to complex class action litigation, he provides practical guidance, develops unique litigation defense strategies and, when appropriate, mediates successful resolutions.

Russell represents clients across a wide array of publicly-held, multi-national companies and privately owned companies across a multitude of industries including, banking, finance and investments, pharmaceuticals, retail products and construction, to name just a few. In addition, he also counsels benefit plan clients on a host of compliance and federal and state government agency enforcement matters, including complex and lengthy investigations and audits by the U.S. Departments of Justice and Labor.

Russell is management co-chair of the American Bar Association Employee Benefits Committee. He also writes on cutting-edge ERISA litigation issues, serving as the co-editor of the Firm’s Employee Benefits & Executive Compensation Blog and as a contributing author and a past chapter editor to Employee Benefits Law (BNA Third Edition).

Read more about Russell HirschhornEmail
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Photo of Kyle Hansen Kyle Hansen

Kyle Hansen is an associate in the Labor & Employment Law Department and a member of the ERISA Litigation Group

Read more about Kyle HansenEmail
  • Posted in:
    Employment & Labor
  • Blog:
    Employee Benefits & Executive Compensation Blog
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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