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. At a stated term of the United States Court of Appeals for the Second Circuit, held at 1 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 2 on the 15 thday of October, two thousand fourteen. 3 4 PRESENT: ROBERT A. KATZMAN, 5 Chief Judge, 6 ROBERT D. SACK, 7 GERARD E. LYNCH, 8 Circuit Judges

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——————————————————————— 10 11 RAYMOND THOMAS, 12 Plaintiff-Appellee , 13 14 v. No. 13-442 15 16 BANK OF AMERICA as successor to 17 COUNTRYWIDE FINANCIAL CORPORATION, 18 Defendant-Appellant, 19 20 CIGNA GROUP INSURANCE, 21 Defendant

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——————————————————————— 24 25 APPEARING FOR APPELLANT: GINA D. WODARSKI (Jonathan R. Shank, on 26 the brief ), Edwards Wildman Palmer LLP, 27 Boston, MA. * 28 29 30 31

*Appellee did not appear or file a brief.Appeal from the United States District Court for the Eastern District of New York 1 (Sandra L. Townes, J. ). 2 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 4 AND DECREED that this appeal is DISMISSED. 5 6 Plaintiff-appellee Raymond Thomas is the beneficiary of two life insurance 7 policies that his late sister, Judith Thomas, obtained through an insurance plan (the 8 “Plan”) offered by her former employer Countrywide Financial Corporation 9 (“Countrywide”), now a wholly-owned subsidiary of defendant-appellant Bank of 10 America Corporation (“Bank of America”). The Plan is an employee welfare benefit plan 11 under Section 3(1) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 12 29 U.S.C. § 1002(1). When Judith’s death benefits were denied, Raymond sued the Plan 13 Administrator, Life Insurance Company of North America (“LINA”), LINA’s parent 14 company Cigna Group Insurance (“Cigna”), and Bank of America under § 502(a)(1)(B) 15 of ERISA, 29 U.S.C. § 1132(a)(1)(B), which permits a plan participant or beneficiary to 16 bring an action “to recover benefits due to him under the terms of his plan.” 17 The district court issued a memorandum and order on January 10, 2013 (the 18 “Order”) that, as relevant to this appeal: (1) ruled that Bank of America, in addition to 19 LINA, was a Plan Administrator; and (2) concluded that LINA’s denial of benefits was 20 arbitrary and capricious; and (3) remanded the matter to LINA with instructions to 21 consider additional evidence regarding Judith’s eligibility. SeeThomas v. Cigna Grp. 22
Ins. , No. 1:09-cv-05029, Doc. No. 98, at 28, 43 (E.D.N.Y. Jan. 10, 2013). 23 Bank of America appeals the district court’s ruling that it was a Plan 24 Administrator. It notes that the Plan defines the term “Plan Administrator” to mean 25
2Countrywide “or such . . . entity . . . that may be appointed by [Countrywide] . . . to 1 administer the Plan ,” and that very next sentence of the definition – ignored by the 2 district court in its analysis of the issue – states that Countrywide “has appointed the 3 Administrative Committee for Employee Benefit Plans to administer the Plan.” App. at 4 80 (emphasis added). The Committee in turn delegated to LINA its authority to 5 administer the Plan upon purchasing the Policies. Bank of America directs the Court to 6 Crocco v. Xerox Corp. , which held that “if a plan specifically designates a plan 7 administrator, then that individual or entity isthe plan administrator for purposes of 8 ERISA.” 137 F.3d 105, 107 (2d Cir. 1998) (emphasis in original). Lastly, Bank of 9 America expresses concern that, were proceedings to continue under a new action, the 10 Order would be “effectively unreviewable” on a later appeal. Appellant’s Br. at 15, n.8. 11 When Bank of America filed its appeal, this Court had yet to determine whether, 12 or under what circumstances, a district court’s remand to an ERISA plan administrator is 13 immediately appealable. We have subsequently addressed this issue in Mead v. Reliastar 14 Life Ins. Co. , No. 11-192-cv, 2014 WL 4548868 (2d Cir. Sept. 16, 2014). While 15 declining to adopt “a hard-and-fast rule,” Mead held that “because an ERISA remand 16 order contemplates further proceedings before the plan administrator, it is not ‘final’ and 17 therefore may not be immediately appealed except when the familiar collateral order 18 doctrine applies.” Id . at *3, 5. Meadfurther held that “to preserve an ERISA plan 19 administrator's ability to obtain appellate review of a nonfinal remand order, we generally 20 will interpret a district court’s remand order as having retained jurisdiction over the case 21

3such that, after a determination by the plan administrator on remand, either party may 1 seek to reopen the district court proceeding and obtain a final judgment.” Id . at *5. 2 Under this framework, the district court’s Order is not an immediately appealable 3 final order. As in Mead, the Order remanded to the Plan Administrator for further 4 factfinding and a new eligibility determination and therefore did not “resolve 5 conclusively the issues of liability and damages.” Id . at *8. Moreover, there is no 6 question that the district court has retained jurisdiction over this case, as it has since 7 received under the same docket number competing motions for summary judgment based 8 on LINA’s denial of benefits on remand. SeeThomas v. Cigna Grp. Ins. , No. 1:09-cv9 05029, Doc. Nos. 130, 136. 10 Bank of America contends, however, that the portion of the order holding that it is 11 a Plan Administrator is reviewable under the collateral order doctrine. An order is 12 appealable under the collateral order doctrine “if it (1) conclusively determines the 13 disputed question; (2) resolves an important issue completely separate from the merits of 14 the action; and (3) is effectively unreviewable on appeal from a final judgment.” 15 Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 105 (2009) (internal quotation marks 16 omitted). Bank of America’s appeal fails to satisfy at least the third requirement, because 17 the district court’s ruling will unquestionably be reviewable on appeal from a final 18 judgment. As the district court’s remand was not a final order and proceedings have 19 continued under the same docket number, there is no longer any concern that the Order 20 might be treated as a final judgment barring Bank of America from appealing any 21

4subsequent order by res judicata without an opportunity for appeal. Review of nonfinal 1 orders under the collateral order doctrine is intended to be “narrow and selective,” id . at 2 113 (internal quotation marks omitted), and there is no compelling reason to grant such 3 review here. 4 Because the Order was not an immediately appealable final order and review under 5 the collateral order doctrine is inappropriate, we DISMISS this appeal for lack of 6 jurisdiction. 7
8 FOR THE COURT: 9 CATHERINE O’HAGAN WOLFE, Clerk of Court 10 11 12 13

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