11‐192	
Mead	v.	Reliastar	Life	Insurance	Company	

                                                   UNITED STATES COURT OF APPEALS
                                                      FOR THE SECOND CIRCUIT

                                                                          August Term, 2011

                                                                        Docket No. 11-192-cv

       Submitted: August 23, 2011         Decided: September 16, 2014
________________________________________________________________________

SUSAN MEAD,

                                                                 Plaintiff-Appellee,

                                - v. -

RELIASTAR LIFE INSURANCE COMPANY,

                      Defendant-Appellant.
________________________________________________________________________

Before: WINTER and HALL, Circuit Judges.*

        On plaintiff-appellee’s motion to dismiss defendant’s appeal from a December 17,
2010 judgment of the United States District Court for the District of Vermont (Sessions, J.),
the plaintiff contends that we are without appellate jurisdiction under 28 U.S.C. § 1291
because the district court did not enter a final judgment but instead remanded her claim for
ERISA benefits to the insurance plan administrator for further consideration.

     It is hereby ORDERED that the motion to dismiss is GRANTED and the appeal is
DISMISSED.

                                                                                  Jonathan M. Feigenbaum, Boston, Massachusetts,
                                                                                  for Plaintiff-Appellee.

                                                                                  William D. Hittler, Nilan Johnson Lewis PA,
                                                                                  Minneapolis, Minnesota, for Defendant-Appellant.

																																																																		
*The Honorable Roger J. Miner, originally a member of the panel, died on February 18,
2012. The two remaining members of the panel, who are in agreement, have determined the
matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457 (2d
Cir. 1998).	
                                                                                                    	


                                             Matthew B. Byrne, Gravel & Shea, Burlington,
                                             Vermont, for Defendant-Appellant.
PER CURIAM:

       Susan Mead participated in a group long-term disability (“LTD”) insurance policy

administered by Reliastar Life Insurance Company (“Reliastar”). Mead, who suffers from

degenerative cervical disc disease, sought LTD benefits under this policy, asserting that her

“total disability” prevented her from performing her own occupation or any other. Reliastar

denied her claim, causing Mead to bring this action pursuant to the Employee Retirement

Income Security Act of 1974 (“ERISA”) in which she seeks a declaratory judgment that she

is entitled to the LTD benefits. Finding Reliastar’s benefits determination arbitrary and

capricious, the district court remanded the matter to the company with instructions that it

calculate the amount of benefits owed to Mead because she was unable to perform the

duties of her own occupation and determine whether she was eligible for additional benefits

because she could not perform the duties of any other occupation. Reliastar appealed, and

Mead now moves to dismiss for lack of appellate jurisdiction, arguing that the remand order

is not a “final decision” under 28 U.S.C. § 1291. While this is a familiar issue in this circuit,

we have never definitively decided whether, or under what circumstances, a district court’s

remand to an ERISA plan administrator is immediately appealable. We hold that under the

circumstances of this case, the remand order is not an immediately appealable final decision

under either the traditional principles of finality or our precedents governing remands to

administrative agencies. We therefore dismiss Reliastar’s appeal for lack of appellate

jurisdiction.




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                                                                     BACKGROUND

I.              Mead’s Group Insurance Policy

                Mead was a long-time employee of Reliastar Financial Corporation (“Reliastar

Financial”) who ended her tenure there in 2000. In connection with her employment, Mead

participated in a group LTD insurance policy administered by Reliastar (the “Plan”). Under

the Plan, Mead was eligible upon a showing of “total disability” to receive two forms of

LTD benefits covering separate temporal periods. First, she could receive “own

occupation” LTD benefits for up to 24 months if she demonstrated that her disability

prevented her from performing the duties of her own occupation. After the expiration of

this 24-month period, Mead could continue to receive “any occupation” LTD benefits by

showing that her disability made her unable to perform the duties of any occupation for

which she was qualified or could reasonably become qualified.

II.             Proceedings before the Plan Administrator and District Court

                In 2003, Mead submitted a claim for LTD benefits under the Plan, asserting that her

degenerative cervical disc disease prevented her from working.1 Reliastar denied the claim,

concluding that Mead had not shown that she was unable to perform the duties of her own

occupation. Mead then filed a federal complaint pursuant to Section 502(a)(1)(B) of ERISA,

29 U.S.C. § 1132(a)(1)(B), seeking a declaratory judgment that she was entitled to 24 months

of “own occupation” benefits, plus interest. In subsequent filings, she also sought “any

occupation” benefits covering the time between the end of the initial 24-month period and

																																																																		
1 In 2000, Mead exercised an option in her employment contract with Reliastar Financial that
terminated her employment but entitled her to continue participating in the Plan for a period
of three years. 	

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the date of the district court’s judgment. The parties cross-moved for summary judgment

and, in March 2008, the district court remanded the matter to Reliastar for further

proceedings. See Mead v. Reliastar Ins. Co., No. 05-cv-332, 2008 WL 850675, at *1 (D. Vt.

Mar. 27, 2008) (Sessions, J.). The court held that Reliastar’s denial of Mead’s claim for “own

occupation” LTD benefits was “arbitrary and capricious” because it was “impossible to tell”

which evidence Reliastar credited and which evidence it rejected to arrive at its decision. Id.

at *4.

         On remand, Reliastar reviewed additional evidence but again denied Mead’s claim,

finding that she was not “totally disabled” and thus ineligible for “own occupation” LTD

benefits covering the initial 24-month period, or, by implication, for “any occupation” LTD

benefits covering the time after that initial period. Mead sought judicial review of this

determination by again moving for summary judgment in the district court that had

remanded the case. In her papers, Mead sought judgment awarding her LTD benefits

“retroactive to the first date of eligibility”—a timeframe that covered both the initial 24-

month “own occupation” benefits period and the latter “any occupation” benefits period.

         In December 2010, after Reliastar cross-moved for summary judgment, the district

court again remanded to Reliastar. See Mead v. Reliastar Ins. Co., 755 F. Supp. 2d 515, 517 (D.

Vt. 2010). The court held that Reliastar’s denial of Mead’s claim for “own occupation”

benefits was arbitrary and capricious. Id. at 542. Among other flaws it identified in

Reliastar’s reasoning, the court highlighted that to arrive at the conclusion that Mead was not

“totally disabled,” Reliastar had “ignored” several physical requirements of Mead’s former

position, refused to recognize the “ample” objective evidence supporting her subjective



	                                              4
                                                                                                 	


complaints of pain, and provided “obviously false or misleading reasons” for discrediting the

conclusions of its own neurologist. See id. at 529-42. Based on these flaws, the court held

that Reliastar’s determination as to Mead’s eligibility for “own occupation” benefits was

patently “unreasonable” and, as a result, it would be “inappropriate” to remand this

eligibility determination for a second time. Id. at 542. Noting that Reliastar had never

addressed the amount of “own occupation” benefits owed to Mead, however, the district

court remanded that issue for Reliastar to make the required calculation. Id. Turning to

Mead’s request for “any occupation” benefits, the court observed that Reliastar had found

her ineligible for these benefits based solely on its determination that she was not “totally

disabled” during the initial 24-month “own occupation” benefits period. Id. Because it was

“possible” that Reliastar could demonstrate that other substantial evidence supported its

denial of “any occupation” benefits, the court remanded for Reliastar to make the initial

eligibility determination. Id.

                The district court issued the following remand order:

                [T]he matter is remanded to Relia[s]tar . . . with directions to calculate and
                award LTD benefits for the Plan’s 24-month “own occupation” period, from
                July 29, 2003, to July 29, 2005, and to determine whether Mead is entitled to
                “any occupation” disability benefits under the Plan.

Mead, 755 F. Supp. 2d at 542. The court concluded its decision by directing the clerk of

court to “close the case” but stated that it would entertain a separate motion from Mead for

prejudgment interest, attorneys’ fees, and costs.2 Id. Shortly thereafter, the clerk of court

entered a separate “judgment,” which stated that “[t]he issues have been tried or heard and a

																																																																		
2	
 Mead filed such a motion in January 2011, after the commencement of the instant appeal.
The district court summarily denied it as “premature.” 	

	                                                                    5
                                                                                                  	


decision has been rendered,” and that the “matter is REMANDED to the plan administrator

for further proceedings consistent with [the court’s December 2010] opinion.” Reliastar

timely appealed, resulting in the case now before us.

       Reliastar has twice sought to stay the district court’s December 2010 remand order

during the pendency of its appeal. In its first stay motion, which was filed before any

proceedings on remand, Reliastar offered to post bond in an amount equal to Mead’s “own

occupation” benefits. The district court denied this request without prejudice, observing

that “there ha[d] been no monetary award in th[e] case” and its December 2010 “judgment”

did not “set out an amount that Reliastar [was] required to pay.” The court stated that once

the determination as to the amount of “own occupation” benefits became a “final decision,”

that portion of the December 2010 order “may be amenable to a stay.” Following this

decision, Reliastar determined on remand that Mead was entitled to “own occupation”

benefits totaling $156,000, but that she was not eligible to receive “any occupation” benefits.

After making this determination, Reliastar successfully renewed its motion to stay (pending

this appeal) that portion of the district court’s December 2010 order requiring it to award

“own occupation” benefits. For her part, Mead attempted to obtain judicial review of

Reliastar’s denial of “any occupation” benefits by filing a motion to reopen in the district

court. The district court denied the motion on the ground that it “lack[ed] jurisdiction to

reopen th[e] case” while this appeal remained pending.

III.   Proceedings in This Court.

       Mead moves to dismiss the appeal for lack of jurisdiction under 28 U.S.C. § 1291,

principally arguing that the district court’s December 2010 decision is nonfinal because it did



	                                              6
                                                                                                      	


not resolve the amount of “own occupation” benefits to which she was entitled or her

eligibility for “any occupation” benefits. Reliastar contends that the district court’s decision

is final because (1) the court conclusively determined Mead’s eligibility for “own occupation”

benefits, (2) calculating the amount of “own occupation” benefits owed to Mead is a

“ministerial” task not subject to genuine dispute, and (3) Mead’s eligibility for “any

occupation” benefits can be analyzed separately from the other issues in this case. Reliastar

also cites as evidence of finality the district court’s directive to “close the case” and the entry

of a separate judgment.

                                           ANALYSIS

       Under 28 U.S.C. § 1291, we have jurisdiction over appeals from “final decisions” of

the district court. We have yet to decide conclusively whether, or under what circumstances,

orders remanding matters to ERISA plan administrators constitute such “final decisions.”

See, e.g., Giraldo v. Building Serv. 32B-J Pension Fund, 502 F.3d 200, 202 (2d Cir. 2007)

(recognizing this as an open question in our circuit). Our sister circuits are split on this issue,

and, broadly speaking, fall into three different camps. A majority of circuits—the First,

Fourth, Sixth, Eighth, and Eleventh—hold that because an ERISA remand order

contemplates further proceedings before the plan administrator, it is not “final” and

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

applies. See Dickens v. Aetna Life Ins. Co., 677 F.3d 228, 232 (4th Cir. 2012); Borntrager v. Cent.

States, Se. & Sw. Areas Pension Fund, 425 F.3d 1087, 1090-92 (8th Cir. 2005); Bowers v. Sheet

Metal Workers’ Nat’l Pension Fund, 365 F.3d 535, 537 (6th Cir. 2004); Petralia v. AT&T Global

Info. Solutions Co., 114 F.3d 352, 354 (1st Cir. 1997); Shannon v. Jack Eckerd Corp., 55 F.3d 561,



	                                                7
                                                                                                         	


563 (11th Cir. 1995). Several circuits—the Third, Ninth, and Tenth—have analogized

ERISA remands to decisions remanding matters to administrative agencies and have

imported into the ERISA context their precedents governing the finality of administrative

remand orders, which permit immediate appeals in certain circumstances. See Papotto v.

Hartford Life & Acc. Ins. Co., 731 F.3d 265, 270-72 (3d Cir. 2013); Rekstad v. First Bank Sys.,

Inc., 238 F.3d 1259, 1262 (10th Cir. 2001); Hensley v. Nw. Permanente P.C. Ret. Plan & Trust,

258 F.3d 986, 993 (9th Cir. 2001), overruled on other grounds by Abatie v. Alta Health & Life Ins.

Co., 458 F.3d 955, 966 (9th Cir. 2006). Staking out a lone position, the Seventh Circuit

analyzes the finality of ERISA remand orders by reference to the statute governing remands

to the Social Security Administration, 42 U.S.C. § 405(g), which also permits immediate

appeals in certain situations. See Perlman v. Swiss Bank Corp. Comprehensive Disability Prot. Plan,

195 F.3d 975, 978-79 (7th Cir. 1999).

                We have observed the existence of these differing approaches, see Giraldo, 502 F.3d at

202; Viglietta v. Metropolitan Life Ins. Co., 454 F.3d 378, 378-79 (2d Cir. 2006), but have never

adopted one of our own because each time the issue arose, the challenged ERISA remand

order was not appealable under any approach.3 For example, in Viglietta we dismissed an

																																																																		
3 In a number of other cases, we exercised jurisdiction over similar appeals only after
concluding that the appealed-from order was not actually the decision remanding to the
ERISA plan administrator. See Nelson v. Unum Life Ins. Co. of America, 468 F.3d 117, 119 (2d
Cir. 2006) (per curiam) (exercising jurisdiction after emphasizing that the plaintiff was “not
appealing from the remand” to the plan administrator, which was in her favor); Nichols v.
Prudential Ins. Co. of Am., 406 F.3d 98, 103-04 (2d Cir. 2005) (concluding that our jurisdiction
was valid because “the district court’s order [was] a dismissal without prejudice, not a
remand”); see also Zervos v. Verizon N.Y., 277 F.3d 635, 644-46 (2d Cir. 2002) (holding that we
had jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) to review an ERISA remand order
because it “was an effective denial of the plaintiff’s request for injunctive relief”). In one
other case, we invoked the doctrine of “hypothetical jurisdiction” to reach the merits of an

	                                                                    8
                                                                                                                                                                                                                   	


appeal from an order remanding to the claims administrator to clarify the factual record and

for reconsideration in light of additional findings because the order would “not be

appealable . . . under the case law of this or any other circuit.” See Viglietta, 454 F.3d at 379-

80. Similarly, in Giraldo we dismissed an appeal after concluding that the underlying remand

order was “unappealable under any established body of case law.” See Giraldo, 502 F.3d at

202-04. This appeal is different. It requires us to adopt our own framework because, as we

explain below, the district court’s December 2010 remand order would be immediately

appealable under the Seventh Circuit’s approach.

                Although our prior cases have not adopted a specific analytical approach for

determining the finality of ERISA remand orders, they provide us with three considerations

that are instructive as we develop our own framework. First, we have repeatedly expressed

what we might characterize as the default position that, under the general principles of

finality, ERISA remand orders usually are not “final” because they “requir[e] further action”

by the plan administrator, Nichols, 406 F.3d at 103-04, thus “creat[ing] a real danger of

piecemeal appeals” if an immediate appeal were available, Nelson, 468 F.3d at 119. See also

Giraldo, 502 F.3d at 202-03 (assuming that the ERISA remand order would be unappealable

unless the approaches used by the Seventh or Ninth Circuits applied); Viglietta, 454 F.3d at

379-80 (same). Second, notwithstanding our default position, we have examined ERISA

remand orders on a case-by-case basis to determine whether the particular facts presented

																																																																																																																																																																																																																				
ERISA remand order without resolving the “difficult” jurisdictional issue. See Crocco v. Xerox
Corp., 137 F.3d 105, 108-09 (2d Cir. 1998). That option is not available to us because “the
Supreme Court has substantially ended that practice” except in narrow circumstances not
present here. Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 85 (2d Cir.
2006) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998)).

	                                                                                                      9
                                                                                                    	


indicate that a remand order may be appealable under an approach already established in a

sister circuit. See Viglietta, 454 F.3d at 379 (indicating that it need not adopt the approaches

used by the Seventh or Ninth Circuits because “the remand order here would not be

appealable” under those approaches); see also Giraldo, 502 F.3d at 202-03 (same); Zervos, 277

F.3d at 644-46 (considering the “practical effect[s]” of a delayed appeal). Last, we have

observed an important similarity between ERISA remand orders and orders remanding

matters to administrative agencies—the practical reality that, like an administrative agency,

an ERISA plan administrator that wishes to challenge a remand order may be unable to

appeal after the proceedings on remand take place. See Crocco, 137 F.3d at 108-09 (citing

Perales v. Sullivan, 948 F.2d 1348, 1353 (2d Cir. 1991) (recognizing an exception to the finality

requirement “when the agency to which the case is remanded seeks to appeal, and that

agency would be unable to appeal after the proceedings on remand”)).

       Taking into consideration our prior case law and the various analytical approaches

used by our sister circuits, we now hold that remands to ERISA plan administrators

generally are not “final” because, in the ordinary case, they contemplate further proceedings

by the plan administrator. See Nelson, 468 F.3d at 119; Nichols, 406 F.3d at 103-04. We

decline, however, to adopt a hard-and-fast rule that such orders are never immediately

appealable in recognition of the reality that, as exemplified by this case, remands to ERISA

plan administrators may take on a number of permutations. Instead, as in all cases where

our jurisdiction is questionable, we must examine the content of the particular ERISA

remand order to determine its appealability. Accord Pappoto, 731 F.3d at 272; Rekstad, 238

F.3d at 1263. Joining four of our sister circuits, we further hold that, to preserve an ERISA



	                                              10
                                                                                                      	


plan administrator’s ability to obtain appellate review of a nonfinal remand order, we

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

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

seek to reopen the district court proceeding and obtain a final judgment. See Petralia, 114

F.3d at 354; accord Dickens, 677 F.3d at 234; Young v. Prudential Ins. Co. of Am., 671 F.3d 1213,

1216 (11th Cir. 2012); Bowers, 365 F.3d at 537. Because the remand order in this case is

amenable to such an interpretation, we leave for another day the question of whether our

case law governing the finality of administrative remands permits an immediate appeal by an

ERISA plan administrator when the district court’s remand order cannot be construed as

having retained jurisdiction over the case. Finally, although the remand order here is

appealable under the Seventh Circuit’s approach, we decline to adopt that approach because,

in our view, it strays too far from settled principles of finality and relies on statutory language

present in the Social Security Act for which ERISA has no analogue. Under the framework

that we now apply, we lack jurisdiction over Reliastar’s appeal.

       A.      General Principles of Finality

       Under § 1291, a “final” decision is “one that conclusively determines the pending

claims of all the parties to the litigation, leaving nothing for the court to do but execute its

decision.” Citizens Accord, Inc. v. Town of Rochester, N.Y., 235 F.3d 126, 128 (2d Cir. 2000) (per

curiam) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). “The purpose of this

rule is to provide the parties with an opportunity for a single review of all the questions

raised at the trial level and thereby to avoid the waste of time and the delay in reaching trial




	                                               11
                                                                                                     	


finality which ensue when piecemeal appeals are permitted.” Nelson, 468 F.3d at 119

(internal quotation marks and alteration omitted).

       “Finality is determined on the basis of pragmatic, not needlessly rigid pro forma,

analysis.” Fiataruolo v. United States, 8 F.3d 930, 937 (2d Cir. 1993). In general, “[a]ll that is

required [to confer appellate jurisdiction] is that there be some manifestation by the district

court that it intends the decision to be its final act in the case.” Nelson, 468 F.3d at 119

(internal quotation marks omitted). On the other hand, a district court’s intent, standing

alone, is not sufficient to confer finality upon every decision. See Henrietta D. v. Giuliani, 246

F.3d 176, 181 (2d Cir. 2001) (“[A]	district court’s assertion of finality cannot deliver appellate

jurisdiction to review a decision that is not otherwise ‘final’ for purposes of § 1291.”).

Instead, the district court’s intent “is relevant for purposes of § 1291 [only] when the court’s

rulings reveal that the action could be final and it therefore matters whether the trial judge

contemplated further proceedings.” Id. (emphasis in original); see also Dudley v. Penn-America

Ins. Co., 313 F.3d 662, 668 (2d Cir. 2002) (Sotomayor, J. concurring) (“The determination of

whether a final judgment has been rendered is made by examining the record of the case

both for the necessary elements of such a judgment . . . and for the court’s intent that its

ruling represent the final disposition of the case.”). Ultimately, “[a]ppealability turns on what

has been ordered, not how it has been described” by the district court. Henrietta D., 246

F.3d at 181 (internal quotation marks omitted).

       Applying these principles, the district court’s December 2010 remand order is not

final. First, by remanding to Reliastar the issue of Mead’s eligibility for “any occupation”

benefits without addressing the merits of that issue, the court’s order did not “conclusively



	                                                12
                                                                                                       	


determine[ ]” Reliastar’s liability for Mead’s sole federal claim under § 502(a)(1)(B) of

ERISA.4 See Citizens Accord, 235 F.3d at 128. Reliastar argues that Mead’s eligibility for “any

occupation” benefits is a separable issue that “has no legal effect or impact” on our review

of the only issue it seeks to challenge on appeal—the propriety of the district court’s

determination that Mead was eligible for “own occupation” benefits. While it may be true

that Mead’s eligibility for “any occupation” benefits has no practical effect on whether she is

entitled to receive “own occupation” benefits, this has no impact on our jurisdiction because

a district court’s decision that does not dispose of all of the plaintiff’s claims for relief is not

“final.” See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976) (decisions granting partial

summary judgment but leaving the “award[] of other relief . . . to be resolved have never

been considered . . . ‘final’ within the meaning of 28 U.S.C. § 1291”).

                Second, even if we could distinguish between Mead’s requests for “own occupation”

and “any occupation” benefits for purposes of our jurisdictional analysis, the district court’s

decision as to “own occupation” benefits would itself not be final because the court did not

determine the amount of those benefits owed to Mead. Instead, the court remanded this
																																																																		
4 In her initial complaint, Mead sought only a declaratory judgment that she was entitled to
24 months of “own occupation” benefits, and did not allege that she was entitled to “any
occupation” benefits. In her first summary judgment motion, however, Mead requested a
monetary judgment awarding benefits for the “any occupation” benefits period. Following
the district court’s first 2008 remand, Reliastar determined that Mead was not entitled to
“any occupation” benefits based on its conclusion that she was not totally disabled and
Mead, without objection from Reliastar, sought judicial review of this determination in her
second summary judgment motion. Because the parties have consistently treated Mead’s
eligibility for “any occupation” benefits as part of her overarching ERISA claim, we treat this
issue as if Mead raised it in her initial complaint. See Fed. R. Civ. P. 15(b) (“When an issue
not raised by the pleadings is tried by the parties’ express or implied consent, it must be
treated in all respects as if raised in the pleadings.”); accord Jund v. Town of Hempstead, 941 F.2d
1271, 1287 (2d Cir. 1991) (refusing to exclude claims not alleged in complaint where claims
had been addressed on the merits both on summary judgment and at trial).	

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issue for Reliastar to calculate the amount, explicitly recognizing when denying Reliastar’s

first stay motion that “there ha[d] been no monetary award in th[e] case” and that its

December 2010 “judgment” did not “set out an amount that Reliastar [was] required to

pay.” Because the district court left unresolved the amount of relief, its December 2010

order was not final. See Henrietta D., 246 F.3d at 180-82 (declaratory judgment found not

appealable where it “did nothing more than determine liability, leaving the measure of

prospective relief for another day”); In re Fugazy Express, Inc., 982 F.2d 769, 775 (2d Cir.

1992) (“An order granting summary judgment on the issue of liability, but requiring a

calculation of damages, is not an appealable final order); see also Rekstad, 238 F.3d at 1262

(“[A] district court’s grant of summary judgment to the plaintiff on an ERISA claim that

[leaves] the question of damages unresolved [is] not a final appealable order.”).

                With respect to the above rule, Reliastar argues that it is entitled to application of the

exception under which an order resolving liability but not damages is considered final when

only “ministerial tasks relating to computation of damages remain[.]” In re Penn Traffic Co.,

466 F.3d 75, 78 (2d Cir. 2006). The “ministerial” designation, however, is “reserved for the

case where an award can be executed after a simple arithmetic calculation or where there

remains only some other mechanical task.” Transaero, Inc. v. La Fuerza Aera Boliviana, 99 F.3d

538, 541 (2d Cir. 1996). Here, the formula used by the Plan to calculate Mead’s “own

occupation” benefits is dependent upon resolving a number of underlying factual questions

that, as Reliastar acknowledges, remain disputed following Reliastar’s calculation of the

benefits amount on remand.5 These continuing disputes regarding the total amount of the

																																																																		
5   The district court summarized the Plan’s formula for calculating benefits as follows:

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award convince us that the calculation of Mead’s “own occupation” benefits is not a

“ministerial” task. See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 841 F.2d 494, 496 (2d Cir.

1988) (per curiam) (citing the parties’ disagreement regarding damages calculations as

evidence that those calculations were not “ministerial” for purposes of determining finality).

                The district court’s directive to “close the case” and its subsequent entry of a separate

“judgment” does not alter the conclusion that the December 2010 order is not final. As we

already have observed, finality ultimately turns on the substance of the district court’s order,

such that “a district court’s assertion of finality cannot deliver appellate jurisdiction to review

a decision that is not otherwise ‘final’ for purposes of § 1291.” Henrietta D., 246 F.3d at 181.

Where, as here, the substance of the remand order from which the appeal is taken leaves

unresolved issues as to liability and prospective relief, the district court’s entry of a separate

judgment and its “directive to close the case [are] insufficient to vest this Court with
																																																																																																																																																																																																																				

         The Plan’s Schedule of Benefits provided that for Total Disability an individual
         would ordinarily be covered under a Base Plan which provided a Monthly Income
         Benefit of “[t]he lesser of 40% of your Basic Monthly Earnings or $15,000.00,
         minus Other Income.” Basic Monthly Earnings was defined as “salary or wage you
         receive for work done for the Policyholder.” Basic Monthly Earnings included
         bonuses “for those employees with a written bonus agreement that is specifically
         based on sales of ReliaStar Financial . . . products and/or products of a Relia[s]tar
         Financial . . . subsidiary,” but did not include, among other things, incentive
         compensation. According to the Plan, “Other Income” includes among other
         things federal and state social security and disability benefits, “[s]alary continuance
         benefits provided through your employer; and “[s]alary, commission, bonus or any
         other income you earn from any work while receiving benefits, except as explained
         for Residual Disability or the Rehabilitative Work Benefit;” and “voluntarily
         selected” early retirement benefits. If the receipt of “Other Income” reduced the
         benefit to less than $50.00, the Plan provided that a minimum monthly income
         benefit of $50.00 be paid.

Mead, 755 F.Supp.2d at 519 (citations and footnote omitted).
	


	                                                                                                     15
                                                                                                      	


jurisdiction under § 1291.” Id. at 179-81 (internal quotation marks omitted); accord Young, 671

F.3d at 1215-16 (although the district court entered “what purported to be a final judgment,”

ERISA remand not “final” because the court “did not end [the plaintiff’s] case and left

unresolved her entitlement to benefits under the Plan”); Gerhart v. Liberty Life Assurance Co.,

574 F.3d 505, 511-12 (8th Cir. 2009) (district court’s direction to “terminat[e]” the case and

its entry of a separate judgment did not render an ERISA remand order “final” where the

court’s order lacked a “clear and unequivocal manifestation . . . that its order [was] the end of

the case”); Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 1153, 1161 (10th Cir. 2007)

(same).

          Reliastar expresses concern that it will lose its future right to appeal the remand order

unless we reverse the district court’s “judgment closing the case.” This concern is not

unwarranted. For example, if, on remand, an ERISA plan administrator issues a

determination sufficiently favorable to a plaintiff that the plaintiff has no reason to seek

further judicial review, then the plan administrator is without an obvious avenue to challenge

any eligibility determinations made by the district court in its remand order. That is, there is

no explicit path by which a plan administrator may reenter the federal court and seek

appellate review of substantive rulings made in remand orders. See 29 U.S.C. § 1132(a) (not

listing plan administrators as “[p]ersons empowered to bring a civil action”); see also Bowers,

365 F.3d at 537 (recognizing that ERISA plan administrators may not be able to challenge

their own eligibility determinations). To protect the plan administrator’s appellate rights,

four circuits have attempted to ensure that either party, including the plan administrator, can

return to the same district court and obtain entry of a final judgment, which may be appealed



	                                                16
                                                                                                   	


and thus provide procedurally for a challenge to the remand order. See Petralia, 114 F.3d at

354; accord Dickens, 677 F.3d at 234; Young, 671 F.3d at 1216; Bowers, 365 F.3d at 537. As the

First Circuit explained in Petralia:

       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.

Petralia, 114 F.3d at 354; accord Dickens, 677 F.3d at 234 (adopting this rule); Young, 671 F.3d

at 1216 (adopting this rule); Bowers, 365 F.3d at 537 (adopting this rule and noting that it

“allow[s] either party to challenge the [plan administrator’s] ensuing eligibility determination

[on remand] by motion before the same [district] court”).

       We believe that this rule is a sensible one that does not run counter to ERISA’s

statutory text. Although ERISA authorizes various types of “civil action[s]” by specifying

the permissible plaintiffs, defendants, claims, and remedies for each action, see generally 29

U.S.C. § 1132(a), it does not contain any provisions governing remands to plan

administrators once those actions have been initiated, nor does it explain how judicial review

of determinations made on remand is to occur, compare 29 U.S.C. § 1132(a), with 42 U.S.C.

§ 405(g) (authorizing “a civil action” to challenge a decision of the Commissioner of Social

Security and defining the district court’s power to remand and to review the Commissioner’s

decisions on remand). Thus, while ERISA, by its terms, may preclude a plan administrator

from challenging its own determination by filing a separate civil action because plan


	                                              17
                                                                                                    	


administrators are not listed as permissible plaintiffs in § 1132(a), nothing in the statutory

text prevents a plan administrator from seeking the entry of a final judgment after its

determination on remand by filing a motion in a pending civil action. Once the court enters a

final judgment, the plan administrator may then challenge the remand order on appeal from

that judgment. See In re Barnet, 737 F.3d 238, 246 (2d Cir. 2013) (“[A]n appeal from any . . .

final order[] opens the record and permits review of all rulings that led up to the judgment.”

(internal quotation marks omitted)).

       We thus adopt the rule that a district court’s ERISA remand order will generally be

interpreted as having retained jurisdiction over the case such that either party may seek to

reopen the district court proceeding and obtain a final judgment. The district court’s

December 2010 remand order in this case is amenable to such an interpretation. As

discussed, notwithstanding its directive to “close the case” and its entry of a separate

judgment, the district court’s December 2010 remand order was nonfinal as a result of its

failure to resolve conclusively the issues of liability and damages. The district court’s actions

following the entry of its remand order also suggest that it retained jurisdiction in

anticipation of taking further action once the proceedings on remand occurred. The court

acknowledged that “there ha[d] been no monetary award in th[e] case” and that its

“judgment” did not “set out an amount that Reliastar [was] required to pay,” thus indicating

that it intended to rectify that omission once Reliastar calculated the appropriate amount.

The district court also denied Mead’s motion to reopen after Reliastar denied her request for

“any occupation” benefits on the ground that it “lack[ed] jurisdiction to reopen th[e] case”

while this appeal remained pending. See Webb v. GAF Corp., 78 F.3d 53, 55 (2d Cir. 1996)



	                                              18
                                                                                                     	


(“[T]he filing of a notice of appeal ordinarily divests the district court of jurisdiction over

issues decided in the order being appealed.”). We see this as a further indication that the

district court intended to retain jurisdiction during the proceedings on remand because the

court gave no suggestion that the filing of a new action was necessary for it to consider the

arguments raised in Mead’s motion. Cf. Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 113

n.5 (2d Cir. 2008) (determining that the district court intended to relinquish jurisdiction in its

order remanding to an agency because, inter alia, the court suggested in its remand order

“that any further action in federal court would require the filing of a new complaint”).

Reliastar may therefore return to the district court after the proceedings on remand and seek

the entry of a final judgment, which it may then appeal.

       For all of these reasons, the district court’s December 2010 remand order is not

“final” under the general principles of finality. As a result, it is immediately appealable only

if the collateral order doctrine applies. That doctrine permits an immediate appeal of an

otherwise nonfinal order if the order conclusively “resolve[s] important questions separate

from the merits” that is “effectively unreviewable on appeal from the final judgment in the

underlying action.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995) (citing Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). The December 2010 order is not

appealable under this doctrine because, among other reasons, the question that it resolved—

whether Mead is eligible for “own occupation” benefits under the Plan—is central to the

merits of the parties’ dispute and, as we have discussed, may be appealed following the entry

of a final judgment after the proceedings on remand. See Swint, 514 U.S. at 42.




	                                               19
                                                                                                         	


                B.              Administrative Agency Remand Exception

                Reliastar argues that the district court’s remand order would be appealable if we

adopted the Ninth Circuit’s approach. Applying its own precedents governing the finality of

orders remanding matters to administrative agencies, the Ninth Circuit permits an immediate

appeal of an otherwise nonfinal ERISA remand order if (1) the order “conclusively

resolve[d] a separable legal issue,” (2) the order “forces the [plan administrator] to apply a

potentially erroneous rule which may result in a wasted proceeding,” and (3) “review would,

as a practical matter, be foreclosed if an immediate appeal were unavailable.” Hensley, 258

F.3d at 993.6 We decline Reliastar’s invitation to import the Ninth Circuit’s three-part test

into our ERISA jurisprudence. As noted, we have our own test for determining the

appealability of orders remanding to administrative agencies, see Perales v. Sullivan, 948 F.2d

1348, 1353 (2d Cir. 1991), which we have implied may be applicable in the ERISA context,

see Crocco, 137 F.3d at 108-09. Thus, if we were to incorporate into the ERISA context a test

for determining the appealability of an administrative remand order, it would be our own.

                This case, however, does not require us to decide definitively whether Perales applies

to ERISA remand orders because, even assuming it does, the remand order here would not

be appealable. Perales holds that although “[a] district court’s remand to an administrative

agency . . . keeps the case alive and hence is ordinarily not appealable,” there is an exception

to this rule “when the agency to which the case is remanded seeks to appeal, and that agency

																																																																		
6 The Third Circuit employs a somewhat similar test derived from its own precedent
governing the finality of remands to administrative agencies. See Papotto, 731 F.3d at 270
(ERISA remand order appealable “when: (1) the remand finally resolves an issue, (2) the
legal issue is important, and (3) denial of immediate review will foreclose appellate review in
the future” (internal quotation marks omitted)).

	                                                                    20
                                                                                                 	


would be unable to appeal after the proceedings on remand.” 948 F.2d at 1353; see also

Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 330 (D.C. Cir. 1989) (collecting cases and

noting that nearly every circuit has adopted the general rule that agency remand orders are

interlocutory and that most circuits have adopted the above exception to this rule). As we

have discussed above, Reliastar will be able to obtain appellate review of the December 2010

remand order after the completion of the proceedings on remand by moving in the district

court for the entry of a final judgment and then appealing that judgment. Accordingly, we

leave for another day the question of whether the Perales rule permits an immediate appeal in

circumstances when the district court’s remand order cannot be interpreted as having

retained jurisdiction, leaving a separate civil action as the only mechanism to challenge the

results of the proceedings on remand. Cf. Somoza, 538 F.3d at 113 n.5.

       C.     Seventh Circuit’s Approach

       As a final point, Reliastar argues that the district court’s December 2010 remand

order is immediately appealable under the Seventh Circuit’s approach. The Seventh Circuit

analyzes the finality of ERISA remand orders by applying the statute governing remands to

the Social Security Administration, 42 U.S.C. § 405(g). See Perlman, 195 F.3d at 978-79. As

explained in Perlman, pursuant to the fourth and sixth sentences of that statute, the district

court may either (1) enter “a judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the cause for a rehearing” (a

“sentence-four remand”); or (2) remand the case to the Commissioner for the consideration

of new evidence without entering a judgment as to the merits of the Commissioner’s

decision (a “sentence-six remand”). Id. at 978 (quoting 42 U.S.C. § 405(g)). In accordance



	                                              21
                                                                                                         	


with the Supreme Court’s decision in Sullivan v. Finkelstein, the Seventh Circuit noted that,

without exception, sentence-four remands are final and appealable under § 1291, while

sentence-six remands are not. Id. (citing Sullivan v. Finkelstein, 496 U.S. 617 (1990)). Under

the Seventh Circuit’s approach, therefore, a district court’s remand order is immediately

appealable if the district court passes judgment on the merits of an ERISA plan

administrator’s decision, regardless of whether it also remands the case to the plan

administrator for further proceedings. See id. at 979.

       Although the district court’s December 2010 order would be appealable under the

Seventh Circuit’s approach because it overturned Reliastar’s decision that Mead is not

eligible for “own occupation” benefits and is thus akin to a sentence-four remand, see Mead,

755 F. Supp. 2d at 542, we expressly decline to adopt the analogy between ERISA and Social

Security remand orders espoused by the Seventh Circuit. The Supreme Court’s holding in

Finkelstein that sentence four remands are final and immediately appealable is based on the

specific language of 42 U.S.C. § 405(g), which delineates “a ‘class of orders’ that Congress

[has] made ‘appealable under § 1291.’” Forney v. Apfel, 524 U.S. 266, 270 (1998) (quoting

Finkelstein, 496 U.S. at 628). The class of appealable orders created by § 405(g) represents an

exception that swallows the generally accepted rule that remand orders are interlocutory,

rendering the vast majority of such orders appealable. See Forney, 524 U.S. at 270 (noting that

neither § 405(g) nor Finkelstein permits an inference that a remand order “could be ‘final’ for

purposes of appeal only when the Government seeks to appeal” or that “‘finality’ turns

on . . . the availability (or lack of availability) of an avenue for appeal from the different, later,

agency determination that might emerge after remand”); Shalala v. Schaefer, 509 U.S. 292, 297



	                                                22
                                                                                                    	


n.2 (1993) (noting that a sentence-six remand, which is the only type of interlocutory remand

under § 405(g), “may be ordered in only two situations: where the Secretary requests a

remand before answering the complaint, or where new, material evidence is adduced that

was for good cause not presented before the agency”). Because ERISA has no provision

comparable to § 405(g), analogies to that subsection and the cases interpreting it have no

bearing on the appealability of ERISA remand orders, and we decline to expand our

jurisdiction by use of such analogy.7

                                                                     CONCLUSION

                We hold that, under the circumstances of this case, the district court’s December

2010 remand order is nonfinal under 28 U.S.C. § 1291. Mead’s motion to dismiss is

GRANTED, and the appeal is DISMISSED for lack of jurisdiction.




																																																																		
7	
 We note, too, that the other circuits that have considered the Seventh Circuit’s approach
have rejected it for similar reasons, see Dickens, 677 F.3d at 232; Borntrager, 425 F.3d at 1091;
Bowers, 365 F.3d at 537-38, and that the Supreme Court has resisted the importation of other
Social Security concepts into ERISA, see Black & Decker Disability Plan v. Nord, 538 U.S. 822,
830-32 (2003) (holding that the lower court “erred in equating the two statutory regimes”
when it imported in the ERISA context the “treating physician rule” contained in the Social
Security regulations (brackets omitted)).	

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