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,

on the 15th 3 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,

Boston, MA.* 28

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-cv10 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

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