                                                                       [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                              FEBRUARY 21, 2012
                                No. 10-14857
                                                                  JOHN LEY
                          ________________________
                                                                   CLERK

                    D.C. Docket No. 3:09-cv-01076-HLA-JBT

CHERYL G. YOUNG,

                                                          Plaintiff-Appellee,

                                      versus

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
LONG TERM DISABILITY OF GROUP POLICY NO. 95497
ISSUED TO FLORIDA COASTAL SCHOOL OF LAW BY
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,

                                                          Defendants-Appellants.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                              (February 21, 2012)

Before MARCUS, WILSON and COX, Circuit Judges.

PER CURIAM:

      We raised earlier a question about our appellate jurisdiction in this case. No

party had raised this issue, but we must raise it sua sponte. Shannon v. Jack Eckerd
Corp., 55 F.3d 561, 563 (11th Cir. 1995). We invited the parties to submit

supplemental briefs. They have done so. After reviewing these submissions, we

conclude that the district court’s order granting the Plaintiff, Cheryl G. Young, partial

summary judgment, and remanding the case to the plan administrator, the Prudential

Insurance Company of America, for further proceedings, is not a final decision under

28 U.S.C. § 1291. Nor is that order appealable under the collateral order doctrine.

Thus, we lack jurisdiction to hear this appeal.

                                 I. BACKGROUND

      Young was employed as a law professor by the Florida Coastal School of Law.

During that time, the law school had a group long-term disability insurance plan (“the

Plan”) with Prudential.

      Young has multiple sclerosis. She contends that complications from this

disease have made her unable to work. In 2006, she submitted a claim for long-term

disability benefits under the Plan. Prudential denied her claim. Young pursued an

administrative appeal, which Prudential also denied. Young then sought review in

the district court. Upon the parties’ cross motions for summary judgment (Dkt. 15,

21, 22, 32, 33, & 34), the district court entered partial summary judgment for Young

on some issues and remanded the case to Prudential to decide in the first instance

whether Young was disabled. (Dkt. 39.) The district court’s order said, “Plaintiff’s

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Motion for Summary Judgment (Dkt. 15) is GRANTED in part as discussed in this

Order. The clerk is directed to enter Judgment in favor [of] Plaintiff and against the

Defendant. This case is closed; all pending motions are moot.” (Dkt. 39 at 16.) The

clerk entered what purported to be a final judgment. (Dkt. 40.) It provided: “This

action came to trial or hearing before the Court. The issues have been tried or heard

and a decision has been rendered. IT IS ORDERED AND ADJUDGED that the

defendant . . . take nothing, that the action be dismissed on the merits, and that

judgment be entered in favor of Plaintiff.” (Dkt. 40.) Prudential appealed, asserting

jurisdiction under 28 U.S.C. § 1291.1 After Prudential initiated this appeal, it acted

on the district court’s remand order (in its capacity as plan administrator) and

determined that Young was disabled.




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          Prudential raised the following issues on appeal. It contends: (1) the district court
improperly analyzed Young’s claim under the de novo standard of review rather than the arbitrary
and capricious standard; (2) the district court improperly considered evidence outside the
administrative record in deciding that Prudential’s decision was de novo wrong; (3) the district court
erred in deciding that an amendment to the Plan limiting coverage was invalid; (4) the district court
erred in deciding that Young was covered under the Plan when Prudential had not developed the
administrative record on whether Young met the requirements for coverage; and (5) the district court
erred in deciding that Young’s claim was timely submitted when she submitted the claim almost a
year after her claimed date of disability.

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                                  II. DISCUSSION

      A. Final Decision under 28 U.S.C. § 1291

      Section 1291 provides: “The courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts of the United States.”

28 U.S.C. § 1291. A final decision is one which “ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.” Catlin v. United States,

324 U.S. 229, 233, 65 S. Ct. 631, 633 (1945).

      In Shannon v. Jack Eckerd Corp., we considered whether a district court’s

order remanding an ERISA benefits claim to a plan administrator is a final decision

under § 1291. 55 F.3d 561 (11th Cir. 1995). In that case, the plaintiff needed a

pancreas transplant. The plan administrator decided that the transplant was an

experimental procedure not covered by the plan, and denied benefits. The plaintiff

sought review in the district court, and the court determined that the plan

administrator had failed to consider all relevant evidence, making its denial arbitrary

and capricious. The district court remanded the action to the plan administrator for

a new determination in light of all the evidence. The plan administrator immediately

appealed the district court’s decision to remand. We dismissed that appeal for want

of jurisdiction. Shannon, 55 F.3d at 564. We held that the district court’s remand

order was not a final judgment for two reasons. First, it did not end the litigation on

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the merits. We said that “[b]ecause the purpose of a remand order is to continue

litigation rather than terminate it, such orders cannot reasonably be construed as

terminating litigation on the issues remanded.” Id. at 563 (quoting Druid Hills Civic

Ass’n v. Fed. Highway Admin., 833 F.2d 1545, 1549 (11th Cir. 1987). Second, the

order did not award or deny benefits. Id. Thus, the order had not left the court with

“nothing . . . to do but execute the judgment.” Id.

      Prudential contends that Shannon is distinguishable because, in Shannon, the

district court explicitly retained jurisdiction. But, in evaluating whether a district

court’s order is final and appealable, we look to the substance of the order—not the

label. See Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 829 (11th Cir.

2010). Here, the district court, in form, ordered the case closed and directed the clerk

to enter judgment for Young. The clerk did enter what purported to be a final

judgment; it “dismissed [the case] on the merits.” But, in substance, the district

court’s order did not end Young’s case and left unresolved her entitlement to benefits

under the Plan. Therefore, we hold that the district court’s order in this case is not a

final, appealable decision under § 1291.

      Our holding is consistent with the position of several other circuits considering

this issue. See Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 1153, 1161

(10th Cir. 2007); Borntrager v. Cent. States, Se. & Sw. Areas Pension Fund, 425 F.3d

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1087, 1091 (8th Cir. 2005); Petralia v. AT&T Global Info. Solutions Co., 114 F.3d

352, 354–55 (1st Cir. 1997).

      Prudential contends that, if it cannot immediately appeal the district court’s

partial summary judgment and remand order, it might be precluded from obtaining

judicial review of that order or any future determination of Young’s entitlement to

benefits. The First Circuit addressed a similar concern in Petralia v. AT&T Global

Information Solutions Co., saying:

             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.

114 F.3d at 354; Bowers v. Sheet Metal Workers’ Nat’l Pension Fund, 365 F.3d 535,

537 (6th Cir. 2004) (adopting this position). We agree with the First and Sixth

Circuits. We hold that the district court retains jurisdiction in this case because no

final decision has been made. Prudential may, therefore, following entry of a final

decision in this case, request review of the partial summary judgment and remand




                                          6
order which it now seeks to review as well as any final judgment entered by the

district court following the plan administrator’s decision on remand.

      B. Collateral Order Doctrine

      A court of appeals may also exercise jurisdiction over the collateral final orders

of the district courts. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546–47,

69 S. Ct. 1221, 1225–26 (1949). To qualify for this exception, an order must

“conclusively determine the disputed question, resolve an important issue completely

separate from the merits of the action, and be effectively unreviewable on appeal from

a final judgment.” Shannon, 55 F.3d at 563 (quoting Coopers & Lybrand v. Livesay,

437 U.S. 463, 468, 98 S. Ct. 2454, 2458 (1978)). Here, the district court’s order

resolved some issues but left others undecided. The court’s order is not collateral; the

issues in the district court’s order involve the merits of Young’s claim. Prudential is

not precluded from obtaining review of the court’s partial summary judgment and

remand order in this case following the entry of final judgment. Thus, the collateral

order doctrine does not apply in this case.

                                 III. CONCLUSION

      The district court’s remand order was not a final order under §1291. Nor is it

a collateral final order. For these reasons, we lack jurisdiction to hear this appeal.

This appeal is dismissed for want of jurisdiction. To be clear, Prudential is not

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precluded from seeking review of the district court’s partial summary judgment and

remand order (and any other ruling subject to review following a final decision) once

the district court’s decision becomes final.

      DISMISSED FOR WANT OF JURISDICTION.




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