06-1706-cv
Giraldo v. Building Service 32B-J Pension Fund, et al.
                          UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        August Term, 2006

(Argued: May 22, 2007                                     Final Submission: May 23, 2007)
                                                          Decided: September 20, 2007)

                                   Docket No. 06-1706-cv
                      _____________________________________________

                                       LUZ M. GIRALDO,

                                        Plaintiff-Appellant,

                                                 v.

 BUILDING SERVICE 32B-J PENSION FUND and BOARD OF TRUSTEES OF BUILDING
                       SERVICE 32B-J PENSION FUND,

                                     Defendants-Appellees.
                            ____________________________________

Before:              WALKER and CABRANES, Circuit Judges and PAULEY, District Judge. 1

                 Luz M. Giraldo moved for an award for attorney=s fees relating to an action
          brought under the Employee Retirement Income Security Act (AERISA@), 29 U.S.C. ''
          1001 et. seq. The United States District Court for the Southern District of New York
          (George B. Daniels, Judge) denied Giraldo=s application. Giraldo appealed.

                                                      CHRISTOPHER P. FOLEY, McCormick
                                                      Dunne & Foley, New York, NY, for
                                                      Plaintiff-Appellant.

                                                      IRA A. STURM, Raab Sturm & Goldman,
                                                      LLP, New York, NY, for Defendants-
                                                      Appellees.



          1
          The Honorable William H. Pauley III, United States District Judge for the Southern
District of New York, sitting by designation.
 1   PER CURIAM:

 2                  Appellant Luz M. Giraldo is a fifty-three year old former worker in the building

 3   service industry. She was injured on the job in 1992 and ceased work in 1999. According to her

 4   physician, Dr. Slobodan Aleksic, Giraldo suffers from numerous physical ailments that render

 5   her Atotally and permanently disabled for any work.@

 6                  On August 26, 2002, Giraldo applied to Appellees Building Service 32B-J

 7   Pension Fund and the Board of Trustees Building Service 32B-J Pension Fund (the ATrustees@)

 8   for disability benefits under the Employee Retirement Income Security Act (AERISA@), 29

 9   U.S.C. '' 1001 et. seq. On January 27, 2003, Giraldo=s application was denied based on an

10   examination by another physician, Dr. Reuben S. Ingber, who concluded that she was physically

11   capable of performing sedentary work. Giraldo filed an administrative appeal of the denial of

12   benefits on July 3, 2003. On December 8, 2003, after Giraldo refused to undergo a psychiatric

13   examination, her appeal was denied.

14                  On May 12, 2004, Giraldo filed an action in the United States District Court for

15   the Southern District of New York seeking a reversal of the denial of benefits (the AMay

16   Action@). After discovery, the parties cross-moved for summary judgment. In an eleven-page

17   Memorandum Decision and Order dated February 16, 2006, the district court denied the

18   Trustees= motion and granted Giraldo=s motion in part. Specifically, the district court found that

19   the underlying record was not developed sufficiently to grant summary judgment to either party.

20   However, the district court determined that Giraldo=s application had not received the Afull and

21   fair review@ required by 29 U.S.C. ' 1133(2). The district court remanded the action Aso that the

22   Trustees can afford plaintiff=s application the >full and fair review= required . . . . On remand, in


                                                        2
 1   addition to making specific findings as to plaintiff=s physical disability and the type(s) of

 2   sedentary job(s) she could or could not perform, the Trustees should separately evaluate whether

 3   or not her mental condition would otherwise merit a finding of complete disability.@

 4   Importantly, when the district court remanded the action, it did not close the case.

 5                   Thereafter, Giraldo sought an award of attorney=s fees and costs from the district

 6   court pursuant to 29 U.S.C. ' 1132(g)(1). The district court denied the application in a one-

 7   sentence order dated March 10, 2006 (the AOrder@). Giraldo timely appealed the denial of

 8   attorney=s fees. Meanwhile, on October 23, 2006, the Trustees again denied Giraldo=s claim for

 9   benefits on remand. Giraldo then filed a new action in the United States District Court for the

10   Southern District of New York (the AOctober Action@), seeking to appeal the Trustees= October

11   denial of benefits. The district judge accepted that case as related to the May Action. At oral

12   argument of the instant appeal, the Trustees indicated their intention to move to dismiss the

13   October Action because of the pendency of the May Action.

14   I. Appeals from ERISA Remands

15                   28 U.S.C. ' 1291 provides, in relevant part: AThe courts of appeals . . . shall have

16   jurisdiction of appeals from all final decisions of the district courts of the United States . . . .@

17   Thus, A[f]ederal appellate jurisdiction generally depends on the existence of a decision by the

18   District Court that ends the litigation on the merits and leaves nothing for the court to do but

19   execute the judgment.@ Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (internal

20   quotation marks omitted).

21                   We have yet to decide whether a remand to an ERISA plan administrator is a

22   Afinal decision[]@ for purposes of ' 1291. See Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 646 &


                                                         3
 1   n.8 (2d Cir. 2002) (AWe do not reach the issue of whether a remand to a[n] [ERISA] plan

 2   administrator is a final judgment within the meaning of 28 U.S.C. ' 1291.@); Crocco v. Xerox

 3   Corp., 137 F.3d 105, 108 (2d Cir. 1998) (noting Awe have not yet had occasion to rule on@ the

 4   issue). Other circuits have split on the issue: the Seventh and Ninth Circuits hold that appeals

 5   may be appropriate in certain circumstances, see Hensley v. Northwest Permanente P.C. Ret.

 6   Plan & Trust, 258 F.3d 986, 992-93 (9th Cir. 2001); Perlman v. Swiss Bank Corp.

 7   Comprehensive Disability Prot. Plan, 195 F.3d 975, 979-80 (7th Cir. 1999), while the First, Sixth

 8   and Eleventh Circuits bar all such appeals, see Petralia v. AT&T Global Info. Solutions Co., 114

 9   F.3d 352, 353-54 (1st Cir. 1997); Bowers v. Sheet Metal Workers= Nat=l Pension Fund, 365 F.3d

10   535, 536 (6th Cir. 2004); Shannon v. Jack Eckerd Corp., 55 F.3d 561, 563 (11th Cir. 1995) (per

11   curiam).

12                  In Viglietta v. Metropolitan Life Ins. Co., 454 F.3d 378, (2d Cir. 2006), we

13   dismissed an appeal after concluding that a remand to the claims administrator to clarify the

14   factual record and for reconsideration in light of additional findings Awas not appealable under

15   the case law of this or any other circuit.@ The Order challenged by Giraldo, like the remand

16   examined in Viglietta, is similarly unappealable under any established body of case law. Thus,

17   as in Viglietta, we need not decide whether to adopt (1) the majority position denying

18   jurisdiction over appeals of remand orders or (2) the rules established by the Seventh or Ninth

19   Circuits.

20          A. Seventh Circuit Rule

21                  The Seventh Circuit analyzes ERISA remands as if they were remands of appeals
                     T




22   from Social Security Administration decisions. There are two types of remands under 42 U.S.C.


                                                      4
 1   ' 405(g) in the Social Security context. In the first, known as Asentence four@ remands, the

 2   district court enters Aa judgment affirming, modifying, or reversing the decision of the

 3   Commissioner of Social Security, with or without remanding for a rehearing.@ Perlman, 195

 4   F.3d at 978 (quoting ' 405(g)). The Supreme Court has held that this type of remand is

 5   immediately appealable. Sullivan v. Finkelstein, 496 U.S. 617 (1990). In the second, known as

 6   Asentence six@ remands, the court does not enter judgment as to the propriety of the

 7   Commissioner=s decision, but instead remands for the receipt of new evidence. This type of

 8   remand is Anot final or appealable because no adjudication has taken place.@ Perlman, 195 F.3d at

 9   978.

10                   This case would fall squarely into the second B sentence six B category because

11   the district court=s summary judgment order remanded the case and directed the Trustees to

12   develop the factual record and to provide reasons for their decision. In view of the fact that there

13   was no Ajudgment affirming, modifying, or reversing the decision@ of the Trustees, Perlman, 195

14   F.3d at 978, the Order denying attorney=s fees would not be eligible for appeal under the Seventh

15   Circuit rule.

16           B. Ninth Circuit Rule

17                   In the Ninth Circuit, an ERISA remand order is appealable only if: (1) the district

18   court order conclusively resolved a separable legal issue, (2) the remand order forces the agency

19   to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review

20   would, as a practical matter, be foreclosed if an immediate appeal were unavailable. Hensley, 58

21   F.3d at 993.




                                                      5
 1                  Giraldo contends that the district court=s summary judgment order directing the

 2   Trustees to consider her Aage, skills and education@ constituted a Aseparable legal issue@ that

 3   would be eligible for appeal in the Ninth Circuit. But because Giraldo seeks to appeal only the

 4   Order denying her motion for attorney=s fees, the Ninth Circuit rule B even if it were adopted by

 5   us B does not apply. Moreover, there would be no jurisdiction even if the Hensley factors did

 6   apply. The district court has not required the Trustees to apply a different rule from the one they

 7   applied in the initial administrative proceedings; the remand only seeks further development of

 8   the factual record. See Viglietta, 454 F.3d at 379. Accordingly, in view of the fact that the

 9   district court=s ruling is not eligible for immediate appeal under either the Seventh or Ninth

10   Circuit tests, we conclude that the Order is not a final judgment appealable under ' 1291.

11   II. The Collateral Order Doctrine

12                  In the alternative, Giraldo, relying on Cohen v. Beneficial Industrial Loan Corp.,

13   337 U.S. 541 (1949), argues that the district court=s denial of attorney=s fees is appealable under

14   the Acollateral order@ doctrine. A[T]he award of attorney=s fees, although not a final order . . .

15   falls within the >collateral order= doctrine, and thus is appealable.@ McGill v. Secretary of Health

16   and Human Services, 712 F.2d 28, 29 (2d Cir. 1983). Under Cohen, orders determining issues

17   independent of the rights asserted in the action, and Aseparable from, and collateral to@ those

18   rights, are appealable under ' 1291 before final judgment is entered. Cohen, 337 U.S. at 546. In

19   Coopers & Lybrand, 437 U.S. at 468, the Supreme Court has noted that to be appealable under

20   the collateral order doctrine, the order Amust conclusively determine the disputed question,

21   resolve an important issue completely separate from the merits of the action, and be effectively

22   unreviewable on appeal from a final judgment.@ See also McGill, 712 F.2d at 29.


                                                       6
 1                   Notwithstanding McGill, the Order denying attorney=s fees is not Aeffectively

2    unreviewable on appeal from a final judgment.@ Coopers & Lybrand, 437 U.S. at 468. McGill

3    concluded that a grant of attorney=s fees Amay later prove to be unreviewable on appeal from a

4    final judgment because, if plaintiff is awarded benefits at the administrative level or chooses not

5    to seek review of a denial of benefits, there will be no further judicial proceedings on which to

 6   base a later appeal.@ McGill, 712 F.2d at 29-30. Here, however, Giraldo=s case remains open in

 7   the district court. Now that the Trustees have denied her application for benefits on remand, she

 8   may easily bring her second denial before the district court and, following the district court=s

 9   final judgment on that denial, appeal any outstanding issue of attorney=s fees. Should Giraldo

10   choose to terminate this litigation without judicial review of the second denial, she cannot

11   complain that she was unable to appeal the denial of attorney=s fees. Accordingly, the collateral

12   order doctrine is inapplicable.

13                                     *       *      *       *       *

14                   For the foregoing reasons, the appeal is dismissed for lack of appellate

15   jurisdiction.




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