
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-2007                                  ROSEMARY PETRALIA,                                Plaintiff - Appellant,                                          v.                      AT&T GLOBAL INFORMATION SOLUTIONS COMPANY,                                    ETC., ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                        Bownes and Cyr, Senior Circuit Judges,                                        _____________________                             and Keeton,* District Judge.                                          ______________                                _____________________               James A. Fuller for appellant.               _______________               John  A. Houlihan, with whom  Edwards & Angell  was on brief               _________________             ________________          for appellees.                                 ____________________                                    June 12, 1997                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    KEETON, District Judge.  In this proceeding we conclude                    KEETON, District Judge                            ______________          that  the remand order of  the district court  is not immediately          appealable as  a final judgment,  and that  the collateral  order          exception   to  the   final   judgment  rule   does  not   apply.          Accordingly, we dismiss for lack of appellate jurisdiction.                                    I.  Background                                    I.  Background                    The  case before us  arose from the  termination of the          short-term  disability  benefits   of  the   Plaintiff-Appellant,          Rosemary  Petralia,  by  the  Defendants-Appellees,  AT&T  Global          Information Solutions  Company  ("AT&T"), and  The  Employee  and          Group Benefit Plan for Account Managers and Sales Representatives          for the Systemedia Division ("the plan").                    Plaintiff-Appellant sought review of the termination in          the district court.  The district court granted summary judgment,          in  part, in favor of Petralia.  Specifically, the district court          found  that the termination  notice Defendants-Appellees provided          to  Petralia did  not comply  with requirements  of the  Employee          Retirement  and  Income  Security  Act, 29  U.S.C.      1001-1461          ("ERISA").  The notice failed to inform Petralia of her  right to          appeal  the  termination, and  it failed  to  inform her  of what          additional information  she could  provide to  avoid termination.          The district  court  determined that  the proper  remedy for  the          ERISA violations  was to remand the issue of Petralia's continued          eligibility for short-term benefits to the plan fiduciary.                      The district court granted summary judgment in favor of                                         -2-          Defendants-Appellees  on  the   issue  of  long-term   disability          benefits.  Since eligibility for long-term benefits is contingent          upon  exhaustion  of  short-term  benefits, and  the  Defendants-          Appellees   terminated   the   Plaintiff-Appellant's   short-term          benefits before  she exhausted them,  the Plaintiff-Appellant has          not applied  for, and  the Defendants-Appellees have  not denied,          long-term benefits.  Plaintiff-Appellant requests that this court          vacate  the remand  order  of the  district  court, and  use  its          equitable  powers   to  reinstate  the  Appellant   to  the  plan          retroactively and  to award past and  future long-term disability          benefits to the Appellant.                             II.  Appellate Jurisdiction                             II.  Appellate Jurisdiction                    Before we inquire into the merits of a dispute, we must          address  the  question of  appellate  jurisdiction.   Doughty  v.                                                                _______          Underwriters at Lloyd's, London  (In re Wallis), 6 F.3d  856, 860          _______________________________________________          (1st  Cir.  1993).     There  is  a  "bedrock   requirement  that          jurisdiction  can never be assumed  but must be  premised on some          affirmative source."  Id.                                  ___                    Generally, appellate jurisdiction is limited  to review          of final decisions of the district courts.  28 U.S.C.   1291; see                                                                        ___          Massachusetts v. V &  M Management, Inc., 929 F.2d 830,  833 (1st          _____________    _______________________          Cir. 1991)(per curiam).                    A  "collateral order"  may  be immediately  appealable,          however, if it has certain prescribed  characteristics.  Cohen v.                                                                   _____          Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (immediate          ____________________________                                         -3-          appeal is proper if  the decision of the district  court "appears          to fall in  that small  class which finally  determine claims  of          right  separable from, and collateral to,  rights asserted in the          action,  too important to be denied review and too independent of          the  cause  itself to  require  that  appellate consideration  be          deferred until the whole case is adjudicated").                      "[A]n order or judgment  is usually considered  'final'          (hence, appealable)  only when it resolves  the contested matter,          leaving nothing  to be done except execution  of the judgment.  A          corollary  rule is  that  an  order  remanding  a  matter  to  an          administrative agency for further findings and proceedings is not          final."    Director,  Office  of Workers'  Compensation Programs,                     ______________________________________________________          United  States Dep't of Labor v. Bath  Iron Works Corp., 853 F.2d          _____________________________    ______________________          11,  13  (1st  Cir.  1988)(quotations,  citations,  and  footnote          omitted).                      We  think  this corollary  rule  applies  to the  order          remanding this  case  to the  plan  administrators.   See,  e.g.,                                                                ___   ____          Shannon v.  Jack Eckerd Corp., 55 F.3d 561, 563 (11th Cir. 1995).          _______     _________________          The  district  court  sent the  present  case  back  to the  plan          administrators to determine "the issue of [Appellant's] continued          eligibility for  short-term benefits."   Petralia v.  AT&T Global                                                   ________     ___________          Info.  Solutions Co., No. 94-533-M  (D.N.H. July 29, 1996) (order          ____________________          remanding  case  to plan  administrators).    The district  court          stated in its  order:   "[The plan] shall  afford Ms. Petralia  a          full  opportunity  under  the   plan's  terms  to  establish  her          continued  eligibility for short-term benefits, as of the time of                                         -4-          improper termination, which of  course will require an assessment          of whatever evidence she might present to establish her continued          eligibility."  Id.  Rather than "leaving nothing to be done," the                         ___          district  court  required  further  proceedings  and findings  on                           ________          remand.  Applying the standard cited above to the remand order in          this case,  we conclude that  the order is not  a final judgment.          Therefore,   28   U.S.C.     1291  does   not   confer  appellate          jurisdiction over this case.                    The "collateral order" doctrine  developed in Cohen and                                                                  _____          later decisions does not apply in the circumstances of this case.          That  doctrine is, in essence, "a 'narrow exception to the normal          application of the final judgment rule,'" prescribed in 28 U.S.C.            1291.  Doughty, 6 F.3d at 862 (quoting Midland Asphalt Corp. v.                   _______                 _______ _____________________          United States, 489 U.S.  794, 798 (1989)).  The  collateral order          _____________          doctrine is  "limited to  orders that (1)  conclusively determine          (2) important  legal questions which are  (3) completely separate          from  the merits of the underlying action and are (4) effectively          unreviewable on appeal from  a final judgment."  Doughty,  6 F.3d                                                           _______          at 862.                      The  issue remanded  to the  plan in  this case  is not                                                                        ___          collateral;  Petralia's continued  eligibility for  benefits, the          issue  remanded  to the  plan, is  the very  heart of  this case.          Consequently, the issue is  effectively reviewable on appeal from          a  final judgment,  and  the rationale  of  the collateral  order          doctrine  does not apply  to this case.   Moreover, the issue has          not  been conclusively determined below, as required by the first                                         -5-          prong  of the collateral order  doctrine.  "[T]o  come within the          collateral  order rule,  a decree  must definitively  resolve the          merits of the collateral issue, not merely determine  which court          will  thereafter resolve it."  Id. at  863.  Because the order of                                         ___          the  district  court  did  not  conclusively  determine  a  legal          question separate from the  merits of the underlying action,  and          the  issue remains  subject  to review  on  appeal from  a  final          judgment,  we conclude that the collateral order exception to the          final judgment rule does not apply to this case.                       III.  Mandamus or Other Prerogative Writ                       III.  Mandamus or Other Prerogative Writ                    The  initial briefs  of  the parties  having failed  to          address the issue of appellate jurisdiction, the Panel questioned          counsel about jurisdiction and allowed the filing of Supplemental          Briefs.   Appellees acknowledged lack of  appellate jurisdiction.          In her Supplemental Brief, Appellant argues  that in Gillespie v.                                                               _________          United States  Steel  Corp.,  379  U.S.  148  (1964),  the  Court          ___________________________          recognized  "what might  well be  called the  'twilight zone'  of          finality," id.  at 152, and asks  us to take jurisdiction  on the                     ___          ground   that  otherwise   Rosemary  Petralia  may   be  "forever          foreclosed" from appellate review of "the proof of her [claim of]          chronic    fatigue    syndrome."       Supplemental    Brief   of          Plaintiff/Appellant  at   4.    Although  this   request  in  the          Supplemental  Brief  was not  in the  form  of a  petition  for a          prerogative writ, in the  interests of assurance of  fair process          we address the request as if it were so designated.                                         -6-                    A writ of mandamus "must be used stintingly and brought          to bear only in extraordinary situations." Doughty, supra, 6 F.3d                                                     _______  _____          at  865.   To show  grounds for  such extraordinary  relief here,          Rosemary  Petralia  would be  required  to  demonstrate that  the          remand  order was palpably erroneous and that she faces a special                                               ___          risk  of irreparable harm.  Id.  Plaintiff-Appellant has not made                                      ___          this showing since, as noted above, issues regarding her proof of          her  claim   of  chronic  fatigue  syndrome   remain  effectively          reviewable  on appeal from a final judgment, after one is ordered          and entered.  See id. at 866.                        ___ ___                 IV.  Retention of Jurisdiction in the District Court                 IV.  Retention of Jurisdiction in the District Court                    Ordinarily  implicit  in a  district  court's order  of          remand to a plan fiduciary  is an understanding that after a  new          decision by the plan  fiduciary, a party seeking judicial  review          in  the district court may do so by  a timely motion filed in the          same civil  action, and is  not required to commence  a new civil          action.    To avoid  any  misunderstanding  that might  otherwise          occur, we state that we interpret the order of the district court          in this case as  having retained jurisdiction, in this  sense, to          hear and decide any timely motion for judicial review filed after          further proceedings  before  the  plan fiduciary.    This  is  so          regardless of whether the  case is formally held open  or instead          administratively  closed  on the  district  court  docket in  the          meantime.                                         -7-                                    V.  Conclusion                                    V.  Conclusion                    Having determined that the remand order of the district          court is not a final judgment, that the collateral order doctrine          does not apply to the decision of the district court remanding an          issue to the plan administrators, and, that a prerogative writ is          not warranted, we dismiss the appeal for lack of jurisdiction.                      So ordered.  Costs are awarded to Appellees.                                         -8-
