                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0611n.06

                                           No. 19-3233

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 SHERRY LAAKE,                         )
                                                                                   FILED
                                       )                                     Dec 11, 2019
      Plaintiff-Appellee,              )                                 DEBORAH S. HUNT, Clerk
                                       )
 v.                                    )                       ON APPEAL FROM THE
                                       )                       UNITED STATES DISTRICT
 BENEFITS      COMMITTEE,    WESTERN & )                       COURT FOR THE SOUTHERN
 SOUTHERN FINANCIAL GROUP COMPANY )                            DISTRICT OF OHIO
 FLEXIBLE BENEFITS PLAN, et al.,       )
                                       )
      Defendants-Appellants.


BEFORE: BATCHELDER, WHITE, and MURPHY, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Plaintiff Sherry Laake brought suit under the

Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq., against

Defendants The Western & Southern Financial Group Company Flexible Benefits Plan (the

“Plan”) and the Benefits Committee of Western and Southern Financial Group Company Flexible

Benefits Plan (collectively, “W&S”).       The district court granted Laake judgment on the

administrative record and remanded the matter to W&S to determine Laake’s eligibility for long-

term disability. W&S appeals from that order and from the district court’s order granting Laake

leave to file a motion for attorney fees and costs. We dismiss for lack of appellate jurisdiction.

                                                I.

       Laake brought this ERISA action to challenge W&S’s determination that she was not

eligible for long-term disability benefits beyond twenty-four months. The district court held that

W&S’s denial was arbitrary and capricious because W&S had incorrectly applied the Plan’s
No. 19-3233, Laake v. Benefits Comm., W. & S. Fin. Grp. Co. Flexible Benefits Plan, et al.


provisions excluding certain conditions from coverage, its determination was premature, and it

had failed to substantially comply with the requirements of 29 U.S.C. § 1133. However, because

it was not clear from the record that Laake was entitled to disability benefits beyond twenty-four

months, the district court remanded the matter to W&S to make an eligibility determination.

       The district court denied Laake’s request for attorney fees because she had not developed

an argument that an award was warranted. Laake then filed a motion under Rule 59(e) asking the

court to clarify and/or amend its order “to the extent necessary, for leave to move for attorney’s

fees and costs under ERISA.” R. 30, PID 1131. The district court construed that motion as a

motion for leave to file and granted it.

       W&S appeals both orders.

                                                  II.

       W&S asserts that we have jurisdiction under 28 U.S.C. § 1291, which gives federal courts

of appeals jurisdiction over “final decisions of the district courts.” Generally, a decision is final

when it “‘ends the litigation on the merits and leaves nothing for the court to do but execute the

judgment.’” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-74 (1981) (quoting

Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)).

       In Bowers v. Sheet Metal Workers’ National Pension Fund, we held that a district court’s

order remanding an ERISA claim to the plan administrator was not a final and appealable decision.

365 F.3d 535, 535-38 (6th Cir. 2004).          In that case, the district court held that the plan

administrator’s denial of benefits to the plaintiff was arbitrary and capricious because the

administrator had failed to properly apply the plan’s definition of disability. Id. at 536. The district

court granted the plaintiff judgment on the administrative record and remanded to the plan

administrator to apply the correct definition of disability. Id. In dismissing the appeal, this court



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reasoned that because the district court had “merely vacated [the] eligibility determination” and

had “not resolve[d] the ultimate question of whether [the plaintiff was] eligible for benefits,” the

judgment was not final. Id. at 536-37.

       For the reasons articulated in Bowers, we lack subject matter jurisdiction over W&S’s

appeal from the district court’s order granting Laake judgment on the administrative record and

remanding to W&S for a new benefits determination. As in Bowers, the district court did not

determine whether Laake is eligible for benefits beyond twenty-four months. Instead, it remanded

the matter to W&S to properly apply the Plan’s definition of long-term disability. Because the

merits of Laake’s claim have yet to be resolved, the district court’s order is not a final decision.

Id.

       Relying on a footnote in Bowers referring to cases from our sister circuits holding that

remand orders explicitly retaining jurisdiction were not final, see id. at 537 n.1 (citing Rekstad v.

First Bank Sys., Inc., 238 F.3d 1259, 1262 (10th Cir. 2001); Shannon v. Jack Eckerd Corp., 55

F.3d 561, 565 (11th Cir. 1995)), W&S argues that Bowers applies only to ERISA remand orders

that explicitly retain jurisdiction in the district court. But nowhere in Bowers did we suggest that

our holding depended on such an explicit statement from the district court. To the contrary, we

quoted from and followed Petralia v. AT&T Global Information Solutions, Inc., 114 F.3d 352, 354

(1st Cir. 1997), a First Circuit case that found no appellate jurisdiction over the district court’s

remand order, but explicitly interpreted the order as retaining jurisdiction in order to preserve the

parties’ appellate rights. After following Petralia, the Bowers court noted in a footnote that other

circuits have found no appellate jurisdiction where the district court explicitly retained jurisdiction.

365 F.3d at 537 n.1. Because the district court’s remand order in Bowers did not explicitly retain

jurisdiction, we followed Petralia and interpreted the order as retaining jurisdiction so that either



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party would have an opportunity to challenge the ultimate decision. Id. at 537. Thus, we reject

W&S’s efforts to distinguish Bowers.

        W&S’s concern that if Laake does not challenge W&S’s eligibility decision following

remand W&S will have no opportunity for appellate review of the district court’s remand order is

properly addressed not by assuming jurisdiction where there is none, but by following Bowers and

interpreting the district court’s order to retain jurisdiction over this case so that after a final decision

on remand, W&S may seek review of all the orders in the case. Id. (citing Petralia, 114 F.3d at

354).

        The district court’s order granting Laake leave to file a motion for attorney fees was also

not a final decision. Although W&S characterizes the order as granting a motion under Rule 59(e),

the district court construed Laake’s Rule 59(e) motion as a motion for leave to file. This was

proper because Laake’s motion requested “leave to move for attorney’s fees and costs under

ERISA.” R. 30, PID 1131. In response, the district court issued an order granting Laake leave to

file a motion for attorney fees. It did not determine the merits of Laake’s claim for fees.

Accordingly, we lack jurisdiction to review the order. Firestone, 449 U.S. at 373.

                                                    III.

        For the foregoing reasons, we DISMISS W&S’s appeal for lack of subject matter

jurisdiction.




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