IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10053

VICTORY MEDICAL CENTER HOUSTON, LIMITED PARTNERSHIP, 

 Plaintiff - Appellee

v.

CAREFIRST OF MARYLAND, INCORPORATED, formerly known as Blue 

Cross and Blue Shield of Maryland, Incorporated, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:12-CV-1607

Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Defendant-Appellant CareFirst of Maryland, Inc. (“CareFirst”) sought

attorneys fees from Victory Medical Center Houston, LP (“Plaintiff”) in relation 

to the ERISA case, Innova Hospital San Antonio LP v. Blue Cross & Blue 

Shield of GA, et al, No. 14-11300. The district court denied the motion. We 

affirm.

 

* 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

January 2, 2018

Lyle W. Cayce

Clerk

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In April 2012, a number of health care providers filed suit in Texas state 

court against 42 insurance companies (“Defendants”), including CareFirst. The 

Plaintiff alleged that it had provided covered medical treatment to patients 

insured by the Defendants, but that when the Plaintiff submitted 

reimbursement requests, the Defendants either denied the requests or 

“unilaterally reduced the amount of payment to an unacceptable and 

unsustainable level.” The Plaintiff contended that these denials and 

underpayments violated the Employee Retirement Income Security Act 

(“ERISA”), the Federal Employees Health Benefits Act (“FEHBA”), and state 

law.

After exchanging initial discovery and filing various pretrial motions, the

Defendants filed a motion to dismiss for failure to state a claim. CareFirst 

joined that motion and also filed a separate motion to dismiss, asserting that 

it had reimbursed the Plaintiff according to the terms of its insurance policies, 

copies of which CareFirst attached to its motion. The district court granted 

both motions in part and dismissed the Plaintiff’s claims, except for those

claims that Defendants—including CareFirst—failed to “provide information 

upon request.”1

At that stage in the litigation, the Plaintiff had one remaining claim 

against CareFirst—that CareFirst had failed to provide information upon 

request, as required under ERISA. On September 12, 2014, the Plaintiff agreed 

to dismiss this sole remaining claim if CareFirst would withdraw its pending 

motion to compel. On September 15, 2014, CareFirst withdrew that motion and 

the Plaintiff voluntarily dismissed its remaining claim against CareFirst. 

 

1 Plaintiff’s claims for negligent misrepresentation against certain insurers who were 

not governed by ERISA also survived the motions; however, these claims were not brought 

against CareFirst. 

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CareFirst subsequently filed a motion seeking attorneys fees pursuant to 29 

U.S.C. § 1132(g)(1). The Plaintiff opposed that motion. 

In January 2015, the district court denied CareFirst’s motion for 

attorneys fees.2 The court explained that even if a party is eligible for attorneys 

fees under 29 U.S.C. § 1132(g)(1), the court should consider whether a fee 

award is appropriate based on the factors that the Fifth Circuit established in 

Iron Workers Local No. 272 v. Bowen.3 Applying the requirements of 

§ 1132(g)(1), the district court stated that “based on the arduous procedural 

history of this action, the Court cannot ‘fairly call the outcome of the litigation 

some success on the merits without conducting a lengthy inquiry’ into whether 

[CareFirst’s] success was not based on a ‘purely procedural victory.’”4 The court 

further explained that even if CareFirst were eligible for attorneys fees, such 

an award was not warranted in this case.5 CareFirst timely appealed that

decision.

In a case governed by ERISA, a “district court has the discretion to award 

attorney’s fees to either party.”6 We review a district court’s decision whether 

to award attorneys fees in an ERISA case for abuse of discretion.7

To recover fees under 29 U.S.C. § 1132(g)(1), “a fees claimant must show 

‘some degree of success on the merits’ before a court may award attorney’s 

 

2 Innova Hospital San Antonio LP, et al v. Blue Cross and Blue Shield of Georgia, Inc., 

et al, No. 3:12-cv-01607 (N.D. Tex. Jan. 8, 2015) (order denying attorneys fees).

3 Id. (citing Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980)).

4 Id. (quoting Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 255 (2010)).

5 Id. (quoting Hardt, 560 U.S. at 255).

6 Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1016 (5th Cir. 1992) (citing 

29 U.S.C. § 1132(g)(1)).

7 1 Lincoln Fin. Co. v. Metro. Life Ins. Co., 428 F. App’x 394, 395 (5th Cir. 2011); ERISA 

§ 502, 29 U.S.C. § 1132(g)(1) (providing that “the court in its discretion may allow a 

reasonable attorney’s fee and costs of action to either party”); E.I. DuPont de Nemours & Co., 

966 F.2d at 1017 (denial of ERISA attorneys fees reviewed for abuse of discretion).

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fees.”8 A claimant satisfies this requirement “if the court can fairly call the 

outcome of the litigation some success on the merits without conducting a 

‘lengthy inquir[y] into the question whether a particular party’s success was 

substantial or occurred on a central issue.’”9

Once a court determines that a party is eligible for a fee award, it may 

then examine the facts of the case to determine if a fee award is appropriate.10

When determining whether to award attorneys fees under ERISA, the district 

court may consider:

(1) the degree of the opposing parties’ culpability or bad faith; (2) 

the ability of the opposing parties to satisfy an award of attorneys’

fees; (3) whether an award of attorneys’ fees against the opposing 

parties would deter other persons acting under similar 

circumstances; (4) whether the parties requesting attorneys’ fees 

sought to benefit all participants and beneficiaries of an ERISA 

plan or to resolve a significant legal question regarding ERISA 

itself; and (5) the relative merits of the parties’ positions.11

The United States Supreme Court has explained that “[these] factors are 

discretionary,” so district courts may make fee determinations without 

evaluating these considerations.12

As noted above, the district court here determined that the “arduous 

procedural history” of this case prevented the court from determining that 

CareFirst had necessarily achieved success on the merits, as required for 

awarding fees under 29 U.S.C. § 1132(g)(1). The district court’s reasoning, 

however, did not end with this threshold declaration. Instead, the court went 

on to explain that, even if CareFirst were eligible for fees, a fee award was not 

 

8 Hardt, 560 U.S. at 255 (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 694

(1983)).

9 Id. (quoting Ruckelshaus, 463 U.S. at 688 n.9).

10 Id. at 255 n.8; 1 Lincoln Fin. Co., 428 F. App’x at 395.

11 Bowen, 624 F.2d at 1266.

12 See LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 703 F.3d 835, 847 (5th 

Cir. 2013) (citing Hardt, 560 U.S. at 256).

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warranted in this case. The court first explained that there was no evidence 

that the Plaintiff acted in bad faith. The court next stated that it had 

considered the remaining Bowen factors and determined that they did not 

support an award of attorneys fees.

A district court has “broad discretion” under Hardt in awarding 

attorneys fees, limited only by the language of § 1132(g)(1).13 Not only did the 

district court analyze the statutory requirements for awarding attorneys fees, 

it also considered the optional Bowen factors. We are satisfied that the district 

court did not abuse its discretion in declining to award attorneys fees in this 

case and therefore affirm that court’s decision.

AFFIRMED.

 

13 Hardt, 560 U.S. at 254; see also Carlson v. HSBC-N. Am. (US) Ret. Income Plan, 

542 F. App’x 2, 8 (2d Cir. 2013), as corrected (Sept. 17, 2013) (“[W]hether [a fee] award is 

merited . . . . is committed to the discretion of the district court, and it is for the district court 

to consider the question in the first instance and ‘articulate reasons for its decision to grant 

or deny fees.’” (quoting Connors v. Connecticut Gen. Life Ins. Co., 272 F.3d 127, 137 (2d Cir. 

2001))).

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