IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20700

ARIANA M., 

 Plaintiff - Appellant

v.

HUMANA HEALTH PLAN OF TEXAS, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

U.S.D.C. No. 4:14-CV-3206

Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.

PER CURIAM:*

Background

This is the second time that this case has reached the Fifth Circuit. Our 

previous opinion in Ariana M. v. Humana Health Plan of Texas, Inc., 884 F.3d 

246 (5th Cir. 2018) (en banc) (“Ariana M. I”), and the district court’s 

Memorandum and Opinion from which plaintiff Ariana M. now appeals discuss 

the case’s facts at length, so we will provide only a brief summary.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 8, 2019

Lyle W. Cayce

Clerk

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Ariana was partially hospitalized to treat an eating disorder. Her healthplan administrator, Humana Health Plan of Texas, Inc., approved benefits for 

49 days of partial hospitalization, but denied benefits for additional days after 

concluding that Ariana’s continued hospitalization was not “medically 

necessary.” Despite Humana’s decision, Ariana remained partially 

hospitalized for another 106 days. 

Ariana then sued Humana under 29 U.S.C. § 1132(a)(1)(B), alleging that 

Humana wrongfully denied her benefits for the additional 106 days. The 

district court concluded that Humana had not abused its discretion in denying 

coverage for continued hospitalization and granted Humana summary 

judgment. After a panel of this court affirmed the district court’s judgment, 

this court agreed to rehear the case en banc. See Ariana M. v. Humana Health 

Plan of Tex., Inc., 869 F.3d 354 (5th Cir. 2017). A majority of the en banc court 

concluded that the district court should have reviewed Humana’s denial of 

benefits de novo, so the court vacated the district court’s judgment and 

remanded the case for the district court to review it under the proper standard. 

See Ariana M. I., 884 F.3d at 257. 

On remand, the district court reviewed the denial of benefits de novo,

concluded that Humana had not erred, and granted Humana summary 

judgment. Ariana nonetheless filed a petition for attorneys’ fees under 29 

U.S.C. § 1132(g), arguing that her success in convincing this court to change 

the standard of review and remand her case to the district court entitled her 

to attorneys’ fees regardless of whether she ultimately prevailed on her claim 

for benefits. The district court denied her fee petition. 

Ariana now appeals both the grant of summary judgment and the denial 

of attorneys’ fees. Concluding that the district court did not err in either 

respect, we AFFIRM its judgment.

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Analysis

We review the district court’s de novo review of the claims 

administrator’s factual findings de novo.1 Green v. Life Ins. Co. of N. Am., 754 

F.3d 324, 329 (5th Cir. 2014); Ariana M. I, 884 F.3d at 256. We review the

denial of Ariana’s fee petition for abuse of discretion. N. Cyprus Med. Ctr. 

Operating Co. v. Aetna Life Ins. Co., 898 F.3d 461, 485 (5th Cir. 2018).

Under the Humana plan, Ariana was eligible for partial hospitalization 

so long as it was “medically necessary.” To assess medical necessity, Humana 

relied on the “Mihalik criteria,” part of a set of guidelines published by a 

healthcare consulting firm.2 After two board-certified psychiatrists reviewed 

Ariana’s case and found several required criteria absent during the claimed

treatment period, Humana found that partial hospitalization was not 

medically necessary for the final 106 claimed days. 

After reviewing the record, we find that at least one of the Mihalik 

criteria had no factual support—an “individualized plan” that “specifies” “time 

frames” and “anticipated outcomes.”3 As such, Humana did not err in finding 

that the final 106 days of Ariana’s partial hospitalization were medically 

unnecessary, and the district court correctly entered judgment for Humana. 

Given that this outcome-determinative finding is undisputed, we need not 

address whether the other Mihalik criteria were met.

 

1 The district court had federal-question jurisdiction because this ERISA suit arises 

under 29 U.S.C. § 1132(a)(1)(B). Ariana appeals from a final judgment, so we have appellate 

jurisdiction under 28 U.S.C. § 1291.

2 Ariana objects to Humana’s use of the Mihalik criteria. The Humana plan requires 

that Humana assess medical necessity using nationally recognized standards of medical 

practice. But Ariana has not identified any evidence that the Mihalik criteria are inconsistent 

with these standards. 3 In fact, Ariana’s doctors affirmatively stated that there were “no specifics on [the] 

time frame” of her partial hospitalization, and the record shows that her entire treatment 

plan suffered from a general lack of specificity.

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The fee petition presents a somewhat more challenging question. In an 

ERISA suit like this one, the district court “in its discretion may allow a 

reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. 

§ 1132(g). The Supreme Court has held that, though a fee claimant need not 

qualify as a “prevailing party” to receive a fee award under this statute, the fee 

claimant must have “achieved some degree of success on the merits.” Hardt v. 

Reliance Standard Life Ins. Co., 560 U.S. 242, 244 (2010) (cleaned up). 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. 

at 255 (cleaned up). The Supreme Court expressly declined to decide whether 

“a remand order, without more, constitutes ‘some success on the merits.’” Id. 

at 256.

We conclude that the district court did not abuse its discretion in denying 

Ariana’s fee motion. While an error of law does constitute an abuse of 

discretion, LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 703 F.3d 835, 

846 (5th Cir. 2013), we see no such error here. The district court described and 

applied the “some success on the merits” standard from Hardt. It noted that, 

unlike Hardt, the remand order here included no comment from the remanding 

court on the strength of the remanded claim. 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. See Ariana 

M. 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 . . . .”).

In reaching this conclusion, we express no opinion on the First Circuit’s 

decision in Gross v. Sun Life Assurance Co. of Canada, 763 F.3d 73 (1st Cir. 

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2014). In Gross, 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. The court

noted that, though its order “refrained from expressing any view on the 

ultimate merits of [Gross’s] claim,” “the change in the standard of review has 

strengthened Gross’s claim” by “increase[ing] the likelihood of a favorable 

benefits determination.” Id. But the court also noted that the administrative 

record was “inadequate to permit [the court’s] de novo judgment on [plaintiff’s] 

entitlement to benefits.” Id. at 75. The First Circuit “faulted [the plan 

administrator] for failing to provide its independent medical consultant with 

important background about [plaintiff’s] circumstances on a critical 

surveillance day and for disregarding the consultant’s observation” that the 

plaintiff should be reexamined. Id. at 76. 

Here, by contrast, the en banc court passed no judgment on the process 

Humana used to evaluate Ariana’s claim or whether Humana had failed to 

provide its independent reviewers with sufficient evidence. Even if the First 

Circuit was correct in finding “some success on the merits” in Gross, Ariana’s 

case is distinguishable.

We therefore AFFIRM the judgment of the district court.

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