### 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 U S D C No. 3:12

- CV

- 1607

Before WIENER, ELROD, and SOUTHWICK, Circuit Judges

. PER CURIAM: * Defendant

- Appellant CareFirst of Maryland, Inc. (“CareFirst”) sought attorney s 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 2, 2018

Lyle W. Cayce Clerk Case: 15-10053 Document: 00514291076 Page: 1 Date Filed: 01/02/2018No. 15

- 10053

2 In April 2012 , a number of health care providers filed suit in Texas state court against 42 insurance companies (“Defendant s ”) , including CareFirst

. The
P laintiff alleged that it had provided covered medical treatment to patients insured by the Defendant s , but that whe n the Plaintiff submitted reimbursement requests , the Defendant s either denied the requests or “unilaterally reduced the amount of payment to an unacceptable and
unsustainable level.” The P laintiff contend ed 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 Defendant s 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 P laintiff according to the terms of its insurance policies, copies of which Ca reFirst attached to its motion. The district court grante d
both motions in part and dismissed the Plaintiff’s claims, excep t for those claims that Defendant s

— including CareFirst

— failed to “ p rovide information upon request .” 1 At that sta ge 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, 20 14, CareFirst withdre w that motion and
the P laintiff voluntarily dismissed its remaining claim against CareFirst.

1 Plaintiff’s claims for negligent misrepresentation against certain insurers who wer e not governed by ERISA also survived the motions; however, these claims were not brought against CareFirst. Case: 15-10053 Document: 00514291076 Page: 2 Date Filed: 01/02/2018No. 15

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3 CareFirst subsequently filed a motion seeking attorney s fees pursuant to 29 U.S.C. § 1132(g)(1). The Plaintiff opposed that motion.
In Januar y 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 factor s 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 th e 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 attorney s fees, such
an award was not warranted in this case. 5 CareFirst timely appeal ed that
decision

. In a case governed by ERIS A, a “district court has the discretion to award attorney ’s fees to either party.” 6 We review a district court’s decision whether

to aw ard attorneys fees in an ERISA case for abuse of discretion

. 7
T o 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 d enying 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 it s 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). Case: 15-10053 Document: 00514291076 Page: 3 Date Filed: 01/02/2018No. 15

- 10053

4 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 ques tion 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
W hen determining whether to awa rd 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 t o satisfy an award of attorneys’ fees; (3) whether an award of attorneys ’ fees against the opposing parties would deter other persons acting under similar circumst ances; (4) whether t he 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 U nited States Supreme Court has explained that “ [these] factors are
discret ionary,” 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,
ho wever, 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). Case: 15-10053 Document: 00514291076 Page: 4 Date Filed: 01/02/2018No. 15

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5 warranted in this case

. T he court first explained that there was no evidence
that the P laintiff ac ted in bad faith. T he court next stated that it had considered the remaining Bowen factors and determined that they did not support an award of attorney s 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 aw a rding attorneys fees , it also considered the optional Bowen factors. We are satisfied that the district court did not abuse its discretion in declining to a ward attorney s 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. , 2 72 F.3d 127, 137 (2d Cir. 2001) )). Case: 15-10053 Document: 00514291076 Page: 5 Date Filed: 01/02/2018