Having persuaded the Fifth Circuit to reverse the district court’s summary judgment in Katherine P. v. Humana Health Plan, Inc., 959 F.3d 206 (5th Cir. 2020), the plaintiff then filed a motion for attorneys’ fees.  The Court denied the motion as premature, however, as the plaintiff had not technically achieved success on the merits.

“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….

“If Katherine P. achieves some success on the merits on remand, she may ask for these fees then.”


Katherine P. v. Humana Health Plan, Inc., 962 F.3d 841 (5th Cir. 2020).