Diana Garner v. US West Disability

Denver, CO – Disability lawyer represented defendant contesting the remand order for the Plan for reconsideration the claim.

Ms. Garner, who has rheumatoid arthritis, was an employee of US West

(now Qwest) from 1969 to 2000. In 2000 she applied for and received shortterm-disability benefits under the Plan. After these benefits were exhausted, she

began receiving long-term-disability (LTD) benefits on January 29, 2001,

retroactive to December 29, 2000. In 2004 her LTD benefits were terminated.

The letter terminating her benefits explained that a physical examination and

subsequent evaluation indicated that she was not entitled to LTD benefits under

the Plan. Ms. Garner timely appealed the denial, and on October 8, 2004, the

Plan issued a final denial, finding no medical support for total disability.

Ms. Garner filed a complaint on January 24, 2005, in the United States

District Court for the District of Colorado. She claimed that the Plan's denial of

LTD benefits was arbitrary and capricious and violated ERISA. She alleged

various errors in the Plan's consideration of her claims, including that it had

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failed to consider her depression as the cause of a mental disability. She sought

an order (1) awarding past benefits, costs, attorney fees, and other "relief as this

Court deems necessary,” Aplt. App. Vol. I at 13; (2) enjoining the Plan from

violating 29 C.F.R. § 2560.503-1 (describing the minimum requirements for

employee-benefit-plan procedures pertaining to claims for benefits); and (3)

instructing the Plan to approve her continuing claim for LTD benefits.

Following a motion for summary judgment by the Plan, the district court

issued the order being appealed. The order rejected most of Ms. Garner's

arguments regarding her entitlement to LTD benefits but ruled that the Plan's

consideration of evidence of her mental disability was arbitrary and capricious. It

remanded the case to the Plan "for further administrative review as to plaintiff's

claim for disability based on her alleged major depression, by itself or in

conjunction with her physical ailments.” Aplt. App. Vol. II at 549. It then

directed the clerk of court "to administratively close th[e] case subject to

reopening only upon motion for good cause shown.” Id. at 550 (emphasis

omitted). Ms. Garner appeals, challenging (among other things) the district

court's remand of the case to the Plan and the Plan's denial of benefits based on

physical disability. The Plan cross-appeals, claiming that its decision to deny

Ms. Garner benefits based on mental disability was not arbitrary and capricious,

but also contending that "the ruling of the district court is not a final decision

over which this Court has jurisdiction.” U. S. West Br. at 2.

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II. DISCUSSION

We must first consider whether we have jurisdiction. Circuit courts

generally have jurisdiction only over "final decisions of the district courts.”

28 U.S.C. § 1291; cf. id. § 1292 (describing circuit courts' jurisdiction over

interlocutory decisions). In Rekstad v. First Bank System, Inc., 238 F.3d 1259,

1263 (10th Cir. 2001), we held that a district-court order remanding a case to an

ERISA plan administrator for a determination of LTD benefits was not a final

appealable decision over which we had jurisdiction. Accord Graham v. Hartford

Life & Accident Ins. Co., Nos. 06-5054 & 06-5142, 2007 WL 2405264 (10th Cir.

Aug. 24, 2007) (dismissing for lack of jurisdiction when the district court had

concluded that substantial evidence did not support a denial of benefits and

remanded the claim to the plan for redetermination). The district court in Rekstad

had concluded that the plan administrator's decision to deny benefits was

arbitrary and capricious, and remanded the case to the plan administrator to

determine what, if any, benefits the plaintiff should receive. 238 F.3d at 1261.

We noted "the well-accepted rule that an order determining liability but leaving

damages to be calculated is not final unless the correct amount of damages is selfevident and not likely to be the subject of a future appeal.” Id. at 1262. We then

observed that in that case the plaintiff's "eligibility for disability damages must

still be addressed on remand” and that "the correct amount is far from obvious.”

Id. The relief sought by the plaintiff—which included benefits, attorney fees,

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costs, and other damages to be determined later—was sufficiently open-ended to

foreclose jurisdiction on appeal. See id. We stressed, however, that the

determination of whether ERISA remand orders were final "should be made on a

case-by-case basis applying well-settled principles governing 'final decisions.'”

Id. at 1263.

Ms. Garner has not persuaded us that her case is distinguishable from

Rekstad in any meaningful way. The district court in this case concluded that the

Plan's denial of benefits based on mental disability was arbitrary and capricious,

and remanded the case "to the Plan for further administrative review as to [her]

claim for disability based on her alleged major depression, by itself or in

conjunction with her physical ailments.” Aplt. App. Vol. II at 549. As in

Rekstad, Ms. Garner's eligibility for benefits, if any, must still be determined on

remand. Moreover, her request for relief in the district court also sought costs,

attorney fees, and "further relief as [the district court] deems necessary.” Id. Vol.

I at 13. "Given this open-ended request, we cannot say that the appropriate

award, if any, is self-evident or that the process would not result in future

appeals.” Rekstad, 238 F.3d at 1262.

Ms. Garner makes four arguments in favor of jurisdiction. First, she points

out that "the District Court itself characterized its Order as final.” Garner Br. at

8. But a district court's characterization of its own order is not dispositive. See

Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161, 1164 (10th Cir. 2007)

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(holding order interlocutory even though district court determined that it was

final). Rather, "when we question the finality of a district court's decision to

remand a benefits determination to the plan administrator, we analyze the

substance of the district court's decision, not its label or form.” Graham,

Nos. 06-5054 & 06-5142, 2007 WL 2405264, at *6 (internal quotation marks

omitted).

Second, Ms. Garner claims that this case is distinguishable from Rekstad,

238 F.3d 1259, because in that case "the district court told the clerk to close the

case file 'subject to a motion to re-open, if such a motion is necessary to obtain

review of the issues remanded by this order,'” id. at 1261 (quoting district-court

judgment), whereas here the court stated that the case could be reopened "only

upon motion for good cause shown,” Aplt. App. Vol. II at 550. We have

previously held, however, that an order closing a case subject to "reopen[ing]

upon a showing of good cause” is not final. Quinn v. CGR, 828 F.2d 1463, 1465

(10th Cir. 1987) (internal quotation marks omitted). And in Graham the district

court's docket entry said that the court was "'dismissing/terminating'” the case

and the court order made no mention of the possibility of reopening. Graham,

Nos. 06-5054 & 06-5142, 2007 WL 2405264, at *2 (internal quotation marks

omitted) (quoting docket). Again, it is the nature of the remand that controls, not

the district court's own characterization of finality or termination of the case.

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Ms. Garner next claims that we have jurisdiction over her appeal because

the district court's order amounted to a refusal of her request for an injunction to

stop the Plan from allegedly violating 29 C.F.R. § 2560.503-1. See 28 U.S.C.

§ 1292(a)(1) (granting circuit courts jurisdiction over district-court orders

refusing injunctions). But the Supreme Court

ha[s] construed the statute narrowly to ensure that appeal as of right

under § 1292(a)(1) will be available only in circumstances where an

appeal will further the statutory purpose of permitting litigants to

effectually challenge interlocutory orders of serious, perhaps

irreparable, consequence. Unless a litigant can show that an

interlocutory order of the district court might have a serious, perhaps

irreparable, consequence, and that the order can be effectually

challenged only by immediate appeal, the general congressional

policy against piecemeal review will preclude interlocutory appeal.

Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981) (brackets, citation, and

internal quotation marks omitted); see also Switz. Cheese Ass'n, Inc. v. E.

Horne's Mkt., Inc., 385 U.S. 23, 24–25 (1966) (denial of summary-judgment

motion seeking a permanent injunction was not appealable under § 1292(a)(1));

Everett v. US Airways Group, Inc., 132 F.3d 770, 774–75 (D.C. Cir. 1998) (in

ERISA action, district court dismissed two claims as subject to mandatory

arbitration under Railway Labor Act and stayed third claim pending outcome of

arbitration; district court's alleged refusal "to enjoin [the employer] to interpret

pension provisions in a certain fashion” was not appealable under § 1292(a)(1) as

denial of injunction because district court's order could be "adequately challenged

by appeal from a final judgment” and plaintiffs would "suffer no harm sufficient

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The Court described the collateral-order doctrine as follows: 2

Whereas 28 U.S.C. § 1291 gives courts of appeals jurisdiction over

all final decisions of district courts that are not directly appealable to

(continued...)

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to invoke the interlocutory review provisions of § 1292(a)(1)”). Ms. Garner

makes no attempt to show that the district court's remand order may have a

serious or irreparable consequence, or that an immediate appeal is necessary to

challenge effectually the district court's order, except to suggest that if she cannot

appeal now, she will have to participate in a remand that the district court lacked

authority to order. But Ms. Garner has given us no reason to believe that the

remand order could not be reviewed after further proceedings.

To be sure, the inability to appeal at this stage will compel Ms. Garner to

participate in a remand that she contends was improperly ordered, and that burden

cannot be fully cured through a later appeal. But courts do not ordinarily treat the

burden of having to participate in litigation as one that justifies appeal from a

nonfinal order. Recently, in Will v. Hallock, 126 S. Ct. 952 (2006), the Supreme

Court considered an appeal by customs officers who were sued in a Bivens action.

The district court had denied their motion to dismiss the suit as barred by the

Federal Tort Claims Act (FTCA). The Court held that the denial of the officers'

motion was not a final order and therefore not appealable. Although a districtcourt order could be deemed a final order and appealable under the collateralorder doctrine if it was "effectively unreviewable on appeal from a final 2

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(...continued) 2

us, the collateral order doctrine accommodates a small class of

rulings, not concluding the litigation, but conclusively resolving

claims of right separable from, and collateral to, rights asserted in the

action. The claims are too important to be denied review and too

independent of the cause itself to require that appellate consideration

be deferred until the whole case is adjudicated.

The requirements for collateral order appeal have been

distilled down to three conditions: that an order [1] conclusively

determine the disputed question, [2] resolve an important issue

completely separate from the merits of the action, and [3] be

effectively unreviewable on appeal from a final judgment.

Id. at 957 (citations and internal quotation marks omitted; brackets in original).

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judgment,” id. at 957 (internal quotation marks omitted), the Court explained that

an order is not "'effectively'” unreviewable just because it requires a party to

submit to a trial unless "avoidance of a trial . . . would imperil a substantial

public interest,” id. at 959. If avoidance of trial were always sufficient ground to

deem an order effectively unreviewable, explained the Court, "the final order

requirement of § 1291 [would be left] in tatters.” Id. at 958. The Court decided

that the FTCA bar invoked by the officers "has no claim to greater importance

than the typical defense of claim preclusion,” id. at 960, and remanded to the

court of appeals with instructions to dismiss the appeal. Likewise, we see no

substantial public interest here in protecting against a remand to the Plan.

Finally, for the first time in her reply brief, Ms. Garner also contends that

her case "fits well within the 'practical finality rule.'” Garner Reply Br. at 8.

Under this rule, "an order is final only if finality is necessary to ensure that the

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An argument that this court lacks jurisdiction can be made at any time, see 3

United States v. Clayton, 416 F.3d 1236, 1238 (10th Cir. 2005), but Ms. Garner is

arguing that we have jurisdiction.

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court of appeals is able to review an important legal question which the remand

made effectively unreviewable.” Metzger, 476 F.3d at 1165 (brackets and internal

quotation marks omitted). Ms. Garner claims that holding her appeal nonfinal

will prevent this court from reaching her argument that the district court lacked

jurisdiction to remand the case to the Plan. This argument, of course, comes too

late, see Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) ("This court does not

ordinarily review issues raised for the first time in a reply brief.”), and her 3

underlying jurisdictional claim is of questionable validity, see United States v.

Jones, 336 U.S. 641, 671 (1949) (district courts "have power . . . to remand the

cause to the [administrative agency] for further proceedings”); Rekstad v. U.S.

Bancorp, 451 F.3d 1114, 1121 (10th Cir. 2006) (remanding ERISA case to district

court "with instructions that the case be returned to [the employer] for

reconsideration”). But more importantly, and as we have already stated,

Ms. Garner has given us no reason to believe that a remand to the Plan at this

juncture would prevent us from considering her argument in a later appeal

following a final order, see Graham, Nos. 06-5054 & 06-5142, 2007 WL

2405264, at *5; Rekstad, 238 F.3d at 1262. "[T]his is not a situation in which

remand may make either the district court's earlier decision . . . or the merits of

[the Plan's] decision on [Ms. Garner's] claim for benefits effectively

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unreviewable.” Graham, Nos. 06-5054 & 06-5142, 2007 WL 2405264, at *5

(internal quotation marks omitted).

The appeal is DISMISSED for lack of jurisdiction.