In Ariana M. v. Humana Health Plan of Texas, Inc., No. 18-20700, 2019 WL 5866677 (5th Cir. Nov. 8, 2019), the Fifth Circuit Court of Appeals rejected a plaintiff’s petition for attorneys’ fees under 29 U.S.C. § 1132(g). This case concerns Humana Health Plan of Texas, Inc.’s denial of benefits for hospitalization to treat an eating disorder. On a prior appeal, Ariana M. v. Humana Health Plan of Texas, Inc., 884 F.3d 246 (5th Cir. 2018) (en banc) (“Ariana I”), the Fifth Circuit concluded that the District Court erred by conducting a deferential review of the claim decision, that it remanded the case for a de novo review of Humana’s decision.
On remand and de novo review, the District Court found Humana had not erred and entered summary judgment in Humana’s favor. Nonetheless, Ariana filed a fee petition, asserting that her success in Ariana I in convincing the appellate court to change the standard of review and remand her case entitled her to fees regardless of whether she ultimately won her claim for benefits. The District Court denied her petition.
On appeal, the Fifth Circuit found the District Court did not abuse its discretion in denying Ariana’s fee petition. The Court first noted that the District Court correctly found that a fee claimant “must have achieved some degree of success on the merits.” 2019 WL 5866677 at *2 (quoting Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 244 (2010)). As noted by the Supreme Court in Hardt, this requires more than “trivial success on the merits or a purely procedural victory,” but does not require “lengthy inquiry into the question of whether a particular party’s success was substantial or occurred on a central issue.” Id. (quoting Hardt, 560 U.S. at 256). The Court also noted that the Supreme Court in Hardt expressly declined to decide whether “a remand order, without more, constitutes ‘some success on the merits.’” Id.
The Court agreed with the District Court that the remand order included no comment on the strength of the remanded claim. See Ariana I, 884 F.3d at 257 (“A different standard of review will sometimes lead to a different outcome, but there will also be many cases in which the result would be the same with deference or without it. We give no opinion on which is the case here . . . .”). Thus, the Court concluded that, while securing a change in the standard of judicial review was certainly a procedural success, it was not a success on the merits of Ariana’s benefit claim.
Of note, the Court appeared to distance itself from the First Circuit’s prior decision in Gross v. Sun Life Assurance Co. of Canada, 763 F.3d 73 (1st Cir. 2014), in which a divided panel held that the plaintiff had achieved “some success on the merits” when a remand order provided her “some meaningful benefit” by favorably changing the standard of review. Id. at 79. In Gross, the First Circuit noted that “the change in the standard of review had strengthened [the plaintiff’s] claim” by “increase[ing] the likelihood of a favorable benefits determination.” Id. Further, in Gross, the First Circuit faulted certain actions of the plan administrator during the claim review process, including failing to provide its independent medical consultant with important background information and disregarding the consultant’s recommendations. Id. at 76.