     Case: 19-50276   Document: 00515471008     Page: 1   Date Filed: 06/29/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                 No. 19-50276                      June 29, 2020
                                                                  Lyle W. Cayce
KATHERINE P.,                                                          Clerk


             Plaintiff - Appellant

v.

HUMANA HEALTH PLAN, INCORPORATED,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Western District of Texas


Before KING, COSTA, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      Having persuaded us to reverse the district court’s summary judgment
ruling in favor of Humana, see generally Katherine P. v. Humana Health Plan,
Inc., 959 F.3d 206 (5th Cir. 2020), Katherine P. now seeks attorneys’ fees under
29 U.S.C. § 1132(g)(1). That provision states that courts “in [their] discretion
may allow a reasonable attorney’s fee and costs” in ERISA suits.
      But § 1132(g)(1) does not provide unfettered discretion to courts to award
fees. “[A] fees claimant must show ‘some degree of success on the merits.’”
Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 255 (2010) (quoting
Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983)). The Supreme Court has
held that a fee claimant whose only “victory” was “an interlocutory ruling [by
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                                      No. 19-50276
the Court of Appeals] that his complaint should not have been dismissed for
failure to state a claim” has not received any relief on the merits. Hewitt v.
Helms, 482 U.S. 755, 760 (1987). See also Farrar v. Hobby, 506 U.S. 103, 110
(1992) (observing that “Helms obtained no relief”).
       There is no principled difference between an appellate court’s conclusion
that a plaintiff has stated a claim and its conclusion that a district court should
not have granted summary judgment. Both decisions simply allow a plaintiff
to proceed with her claim. Neither alters the parties’ legal relationship or
requires that the defendant do something besides what it was already doing—
litigating the case. So in neither case has the claimant achieved any success
on the merits. Both are “purely procedural victories” and cannot support a fee
claim. Ruckelshaus, 463 U.S. at 688 n.9. Cf. Ariana M. v. Humana Health
Plan of Tex., Inc., 792 F. App’x 287, 290 (5th Cir. 2019) (“Securing a change in
the standard of judicial review of Humana’s factual determinations is certainly
a procedural success, but it’s not success on the merits of Ariana’s benefits
claim.”). 1
       We deny the motion. If Katherine P. achieves some success on the merits
on remand, she may ask for these fees then.




       1 Kathrine P. does not cite any ERISA cases awarding fees for obtaining a reversal of
summary judgment on appeal. And the cases she does cite are not analogous to this case—
they involve either a remand to the plan administrator, see, e.g., Gross v Sun Life Assurance
Co. of Canada, 763 F.3d 73, 79 (1st Cir. 2014), or a settlement that provided some payment
of benefits, see Koehler v. Aetna Health Inc., 915 F. Supp. 2d 789, 797 (N.D. Tex. 2013). We
have no occasion to decide whether the cases she cites meet the standard for an award of fees
under 29 U.S.C. § 1132(g)(1).
                                             2
