     13-442
     Thomas v. Bank of America
                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 15th day of October, two thousand fourteen.
 4
 5   PRESENT: ROBERT A. KATZMAN,
 6                            Chief Judge,
 7            ROBERT D. SACK,
 8            GERARD E. LYNCH,
 9                            Circuit Judges.
10   ———————————————————————
11
12   RAYMOND THOMAS,
13           Plaintiff-Appellee,
14
15                               v.                                  No.    13-442
16
17   BANK OF AMERICA as successor to
18   COUNTRYWIDE FINANCIAL CORPORATION,
19            Defendant-Appellant,
20
21   CIGNA GROUP INSURANCE,
22            Defendant.
23
24   ———————————————————————
25
26   APPEARING FOR APPELLANT:                       GINA D. WODARSKI (Jonathan R. Shank, on
27                                                  the brief), Edwards Wildman Palmer LLP,
28                                                  Boston, MA.*
29
30
31


              *
                  Appellee did not appear or file a brief.
 1         Appeal from the United States District Court for the Eastern District of New York
 2   (Sandra L. Townes, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that this appeal is DISMISSED.
 6
 7          Plaintiff-appellee Raymond Thomas is the beneficiary of two life insurance

 8   policies that his late sister, Judith Thomas, obtained through an insurance plan (the

 9   “Plan”) offered by her former employer Countrywide Financial Corporation

10   (“Countrywide”), now a wholly-owned subsidiary of defendant-appellant Bank of

11   America Corporation (“Bank of America”). The Plan is an employee welfare benefit plan

12   under Section 3(1) of the Employee Retirement Income Security Act of 1974 (“ERISA”),

13   29 U.S.C. § 1002(1). When Judith’s death benefits were denied, Raymond sued the Plan

14   Administrator, Life Insurance Company of North America (“LINA”), LINA’s parent

15   company Cigna Group Insurance (“Cigna”), and Bank of America under § 502(a)(1)(B)

16   of ERISA, 29 U.S.C. § 1132(a)(1)(B), which permits a plan participant or beneficiary to

17   bring an action “to recover benefits due to him under the terms of his plan.”

18          The district court issued a memorandum and order on January 10, 2013 (the

19   “Order”) that, as relevant to this appeal: (1) ruled that Bank of America, in addition to

20   LINA, was a Plan Administrator; and (2) concluded that LINA’s denial of benefits was

21   arbitrary and capricious; and (3) remanded the matter to LINA with instructions to

22   consider additional evidence regarding Judith’s eligibility. See Thomas v. Cigna Grp.

23   Ins., No. 1:09-cv-05029, Doc. No. 98, at 28, 43 (E.D.N.Y. Jan. 10, 2013).

24          Bank of America appeals the district court’s ruling that it was a Plan

25   Administrator. It notes that the Plan defines the term “Plan Administrator” to mean

                                                   2
 1   Countrywide “or such . . . entity . . . that may be appointed by [Countrywide] . . . to

 2   administer the Plan,” and that very next sentence of the definition – ignored by the

 3   district court in its analysis of the issue – states that Countrywide “has appointed the

 4   Administrative Committee for Employee Benefit Plans to administer the Plan.” App. at

 5   80 (emphasis added). The Committee in turn delegated to LINA its authority to

 6   administer the Plan upon purchasing the Policies. Bank of America directs the Court to

 7   Crocco v. Xerox Corp., which held that “if a plan specifically designates a plan

 8   administrator, then that individual or entity is the plan administrator for purposes of

 9   ERISA.” 137 F.3d 105, 107 (2d Cir. 1998) (emphasis in original). Lastly, Bank of

10   America expresses concern that, were proceedings to continue under a new action, the

11   Order would be “effectively unreviewable” on a later appeal. Appellant’s Br. at 15, n.8.

12          When Bank of America filed its appeal, this Court had yet to determine whether,

13   or under what circumstances, a district court’s remand to an ERISA plan administrator is

14   immediately appealable. We have subsequently addressed this issue in Mead v. Reliastar

15   Life Ins. Co., No. 11-192-cv, 2014 WL 4548868 (2d Cir. Sept. 16, 2014). While

16   declining to adopt “a hard-and-fast rule,” Mead held that “because an ERISA remand

17   order contemplates further proceedings before the plan administrator, it is not ‘final’ and

18   therefore may not be immediately appealed except when the familiar collateral order

19   doctrine applies.” Id. at *3, 5. Mead further held that “to preserve an ERISA plan

20   administrator's ability to obtain appellate review of a nonfinal remand order, we generally

21   will interpret a district court’s remand order as having retained jurisdiction over the case


                                                   3
 1   such that, after a determination by the plan administrator on remand, either party may

 2   seek to reopen the district court proceeding and obtain a final judgment.” Id. at *5.

 3          Under this framework, the district court’s Order is not an immediately appealable

 4   final order. As in Mead, the Order remanded to the Plan Administrator for further

 5   factfinding and a new eligibility determination and therefore did not “resolve

 6   conclusively the issues of liability and damages.” Id. at *8. Moreover, there is no

 7   question that the district court has retained jurisdiction over this case, as it has since

 8   received under the same docket number competing motions for summary judgment based

 9   on LINA’s denial of benefits on remand. See Thomas v. Cigna Grp. Ins., No. 1:09-cv-

10   05029, Doc. Nos. 130, 136.

11          Bank of America contends, however, that the portion of the order holding that it is

12   a Plan Administrator is reviewable under the collateral order doctrine. An order is

13   appealable under the collateral order doctrine “if it (1) conclusively determines the

14   disputed question; (2) resolves an important issue completely separate from the merits of

15   the action; and (3) is effectively unreviewable on appeal from a final judgment.”

16   Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 105 (2009) (internal quotation marks

17   omitted). Bank of America’s appeal fails to satisfy at least the third requirement, because

18   the district court’s ruling will unquestionably be reviewable on appeal from a final

19   judgment. As the district court’s remand was not a final order and proceedings have

20   continued under the same docket number, there is no longer any concern that the Order

21   might be treated as a final judgment barring Bank of America from appealing any



                                                    4
 1   subsequent order by res judicata without an opportunity for appeal. Review of nonfinal

 2   orders under the collateral order doctrine is intended to be “narrow and selective,” id. at

 3   113 (internal quotation marks omitted), and there is no compelling reason to grant such

 4   review here.

 5          Because the Order was not an immediately appealable final order and review under

 6   the collateral order doctrine is inappropriate, we DISMISS this appeal for lack of

 7   jurisdiction.

 8

 9                                      FOR THE COURT:
10                                      CATHERINE O’HAGAN WOLFE, Clerk of Court
11
12
13




                                                   5
