           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Bowers v. Sheet Metal Workers’               No. 02-6290
        ELECTRONIC CITATION: 2004 FED App. 0109P (6th Cir.)                   Nat’l Pension Fund
                    File Name: 04a0109p.06
                                                                                             _________________
UNITED STATES COURT OF APPEALS                                                                    COUNSEL
                  FOR THE SIXTH CIRCUIT                                  ON BRIEF: Stephen Mark Rosenblatt, Jonathan J. Boyles,
                    _________________                                    SHEET METAL WORKERS NATIONAL PENSION
                                                                         FUND, Alexandria, Virginia, for Appellant. Peter T. Skeie,
 JESSE M. BOWERS ,                X                                      PETER SKEIE, ATTORNEY AT LAW, Nashville,
              Plaintiff-Appellee, -                                      Tennessee, for Appellee.
                                   -
                                   -   No. 02-6290                                           _________________
             v.                    -
                                    >                                                            OPINION
                                   ,                                                         _________________
 SHEET METAL WORKERS ’             -
 NATIONAL PENSION FUND ,           -                                       ALAN E. NORRIS, Circuit Judge. This appeal presents a
           Defendant-Appellant. -                                        question of first impression for this court: In a case premised
                                   -                                     upon a claim for disability benefits under a pension plan
                                  N                                      governed by the Employee Retirement Income Security Act
       Appeal from the United States District Court                      of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”), is an order by
     for the Middle District of Tennessee at Nashville.                  a district court remanding the case to the plan administrator
    No. 01-00488—Todd J. Campbell, District Judge.                       for a determination of the claimant’s eligibility a final
                                                                         decision under 28 U.S.C. § 1291? Because we conclude that
                   Submitted: March 16, 2004                             such an order is not a final decision, we dismiss for lack of
                                                                         appellate jurisdiction.
              Decided and Filed: April 16, 2004
                                                                                                        I.
          Before: NORRIS and COLE, Circuit Judges;
                 ECONOMUS, District Judge.*                                Plaintiff Jesse M. Bowers brought suit against his pension
                                                                         provider, defendant Sheet Metal Workers’ National Pension
                                                                         Fund (“NPF”), challenging its determination that he was
                                                                         ineligible for disability benefits under the pension plan.
                                                                         Bowers moved for judgment on the administrative record,
                                                                         contending that NPF’s determination was arbitrary and
                                                                         capricious because it did not apply the definition of disability
                                                                         specified in the plan. The district court agreed and granted
    *
                                                                         Bowers’ motion for judgment on the administrative record.
     The Honorable Peter C. Economus, United States District Judge for
the Northern District of Ohio, sitting by designation.

                                  1
No. 02-6290            Bowers v. Sheet Metal Workers’        3    4        Bowers v. Sheet Metal Workers’                    No. 02-6290
                                   Nat’l Pension Fund                      Nat’l Pension Fund

   After requesting and receiving further briefing from the          The First Circuit was faced with a similar situation in
parties on the question of a remedy, the court issued an order    Petralia v. AT&T Global Information Solutions, Inc., 114
remanding Bowers’ claim to NPF’s plan administrator for a         F.3d 352 (1st Cir. 1997). In that case, the district court had
determination of Bowers’ eligibility for benefits under the       remanded a benefits claim to an ERISA plan administrator to
correct disability definition. The order was stamped with a       examine evidence demonstrating eligibility. The First Circuit
statement indicating that it was “entered on the docket in        concluded that the order did not constitute a final decision
compliance with Rule 58 and/or Rule 79(a).” NPF attempts          because it left the merits undecided. However, to prevent the
to appeal from this order.                                        plan administrator from losing the opportunity to challenge
                                                                  the trial court’s decision in a later proceeding, the court
                              II.                                 concluded that the remand order had to be interpreted to
                                                                  allow either party to challenge the ensuing eligibility
  On appeal, NPF asserts that this court has jurisdiction under   determination by motion before the same court:
28 U.S.C. § 1291, which grants courts of appeal subject
matter jurisdiction over final decisions of district courts.          Ordinarily implicit in a federal district court’s order of
Bowers argues that we lack subject matter jurisdiction                remand to a plan fiduciary is an understanding that after
because an order remanding a claim to a plan administrator            a new decision by the plan fiduciary, a party seeking
for a determination of the merits of the claim does not               judicial review in the district court may do so by a timely
constitute a final decision. We agree with Bowers.                    motion filed in the same civil action, and is not required
                                                                      to commence a new civil action. To avoid any
   Typically, “where assessment of damages or awarding of             misunderstanding that might otherwise occur, we state
other relief remains to be resolved, [an order is not]                that we interpret the order of the district court in this case
considered to be ‘final’ within the meaning of 28 U.S.C.              as having retained jurisdiction, in this sense, to hear and
§ 1291.” Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744           decide any timely motion for judicial review filed after
(1976). The district court’s order merely vacated NPF’s               further proceedings before the plan fiduciary. This is so
eligibility determination; it did not resolve the ultimate            regardless of whether the case is formally held open or
question of whether Bowers is eligible for benefits.                  instead administratively closed on the district court
Accordingly, the order would not typically be considered a            docket in the meantime.
final decision.
                                                                  Id. at 354. We interpret the district court’s order in the case
  NPF argues that the order constituted a final decision          at bar in the same way, permitting either party to challenge
because future circumstances may prevent NPF from                 the eligibility determination that the plan administrator
challenging it. Specifically, NPF contends that if Bowers         renders on remand.1
does not challenge the eligibility decision that NPF renders
following the remand, it would not be able to challenge the
order in a later proceeding because it would be challenging its        1
own eligibility determination. We share NPF’s concern, but              Two other circuits have concluded that in cases where a district
we do not believe that it renders the district court’s order      court explicitly retains jurisdiction over a case it remands to a plan
appealable.                                                       administrator, the ord er rem anding the case does not constitute a final
                                                                  decision. See Rekstad v. First Bank Sys., Inc., 238 F.3d 125 9, 12 62 (10th
No. 02-6290                  Bowers v. Sheet Metal Workers’                   5
                                         Nat’l Pension Fund

   We note that two other circuits have issued decisions that
come to the opposite conclusion regarding the appealability
of orders remanding benefits determinations to ERISA plan
administrators. See Hensley v. Northwest Permanente P.C.
Retirement Plan & Trust, 258 F.3d 986 (9th Cir. 2001);
Perlman v. Swiss Bank Corp. Comprehensive Disability Prot.
Plan, 195 F.3d 975 (7th Cir. 2000). Those decisions conclude
that, because orders remanding administrative benefit
determinations to administrative agencies are appealable,
orders remanding pension benefit determinations to ERISA
plan administrators should be appealable too. Hensley,
258 F.3d at 993-94; Perlman, 195 F.3d at 979-80. In
Perlman, the Seventh Circuit relied specifically upon the
similarity between remands to plan administrators in ERISA
cases and remands to the Commissioner of Social Security in
social security cases. Perlman, 195 F.3d at 979. However, as
noted in Perlman, 42 U.S.C. § 405(g) specifically grants
courts of appeals jurisdiction over orders remanding social
security claims to the Commissioner. Id. at 978. No statutory
language permits similar appeals under ERISA. The
existence of language authorizing appeals from remand orders
under the social security laws implies that those orders would
not constitute final decisions under 28 U.S.C. § 1291. In the
absence of a statutory grant of jurisdiction, this court declines
to expand its jurisdiction by analogy.
                                     III.
  For the foregoing reasons, the appeal is dismissed for lack
of jurisdiction.



Cir. 2001) (stating that the district court “expressly stated that either p arty
may obtain review of the adm inistrator’s determinatio n simply by filing
a motio n”); Shannon v. Jack Eckerd Corp., 55 F.3d 561 , 563 (11th Cir.
1995) (stating that the district court “retain[ed] jurisdiction , . . .
indicat[ing] that further action is req uired”).
