* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### October 6, 2005

Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

SARAH E. METZGER,

Plaintiff-Appellant,

v. UNUM LIFE INSURANCE COMPANY OF AMERICA,

Defendant-Appellee. No. 04-3484 (D.C. No. 02-CV-1321-MLB)

(D. Kan.)

ORDER AND JUDGMENT *

Before HENRY, ANDERSON , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Sarah E. Metzger appeals from a district court order ruling that it lacked subject-matter jurisdiction over her motion seeking sanctions against defendant UNUM Life Insurance Company of America (UNUM). Following a district court order remanding her ERISA complaint to UNUM for further proceedings, Metzger filed a sanction motion with the district court claiming UNUM had not followed the procedures required by th e remand order. The district court ruled it lacked subject-matter juris diction to hear her motion. We exercise jurisdiction over the limited question of whether the district court correctly ruled it lacked jurisdiction to consider the sanction motion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp ., 379 F.3d 1161, 1163 (10th Cir. 2004). We conclude that the district co urt had ancillary jurisdiction to enforce its remand order; thus, we reverse and remand for further proceedings. Background Metzger sought long-term disability benefits from UNUM, her employer’s ERISA plan administrator. UNUM denied her disabili ty claim, stating she had not presented evidence she was under regular physic ian care for a condition that impaired her ability to work. Metzger administrati vely appealed this decision to UNUM, submitting a current medical evaluation from her treating physician. UNUM sent Metzger’s medical file to two medical con sultants, Ms. Hess, a nurse, and Dr. Fluter, a physician, who opined that Metzge r had not presented evidence-3-

demonstrating the functional limitations of her med ical condition. Based on these opinions, UNUM upheld its decision to deny Metzger’ s benefit request. Metzger then filed a complaint in federal district court alleging in part that UNUM failed in its statutory and fiduciary duty und er ERISA to provide a full and fair review of her claim because it had not giv en her any opportunity to review and rebut the opinions of Hess and Fluter. The district court agreed. It ruled that Metzger was entitled to know what eviden ce UNUM relied upon, to have an opportunity to address the accuracy and rel iability of that evidence, and to have UNUM consider the evidence presented by both parties before reaching any decision. Aplt. App. at A41, A43 (citing Sage v. Automation, Inc. Pension Plan & Trust , 845 F.2d 885, 893-94 (10th Cir. 1988)). The district court rejected UNUM’s argument that the opinions of Hess and Flute r did not constitute “evidence” because they only reviewed the medical e vidence submitted by Metzger. It ruled that the opinions of these profe ssionals did constitute “evidence” of a type that Metzger was entitled to r eview prior to UNUM’s final decision. Id . at A43. It also rejected UNUM’s argument that al lowing Metzger to continually present rebuttal evidence would thwart the administrative review
process. Id . at A44. The district court then remanded the case to UNUM f or further consideration. It granted Metzger sixty days from the date of its order to review-4-

the opinions of Hess and Fluter and to submit any r ebuttal evidence. It gave UNUM 120 days from the date of the order to render its decision, reviewing the matter as it would from an appeal from an initial d enial of benefits. Metzger timely submitted rebuttal evidence from her treatin g physician. After receiving Metzger’s rebuttal evidence, UNUM a gain used outside consultants, a physician, Dr. Hill, and a vocationa l expert (VE), to review Metzger’s medical evidence. UNUM again denied bene fits, citing the opinions of Hill and the VE as the basis of its denial. UNUM d id not provide Metzger with any opportunity to review and rebut the opinion evi dence of Hill or the VE prior to making its decision. In response, Metzger filed a motion with the distri ct court (entitled a Motion For Order to Show Cause) seeking sanctions, including an award of benefits. The motion, which is the subject of this appeal, claimed UNUM did not comply with the procedures outlined in the districtcourt’s remand order. Metzger argued that UNUM’s use of outside consultants to ev aluate and ultimately deny her claim, without providing her with any opportuni ty to review and rebut that evidence, was a blatant violation of the district c ourt’s legal ruling in the remand order. UNUM disagreed, arguing the remand order on ly obligated it to receive Metzger’s rebuttal evidence with respect to Hess an d Fluter and to reevaluate her appeal. It stated it was not obligated under the r emand order to provide Metzger-5-

with a continuing opportunity to rebut future consu ltant evaluations it obtained, and noted its continued disagreement with the distr ict court’s determination that Metzger should be allowed to rebut even Hess and Fl uter’s opinions. Aplt. App.
at A85-A86. The district court sua sponte ruled that it lacked subject-matter jurisdiction to hear Metzger’s motion. It stated that its reman d order disposed of all pending claims by the parties, was a final judgment under F ed. R. Civ. P. 58, and contained no language indicating the court would re tain continuing jurisdiction over further motions in the ERISA proceeding. Metz ger appeals from that ruling. Analysis Metzger contends on appeal that the remand order wa s an interlocutory order, not a final and appealable judgment, and that the district court retained subject-matter jurisdiction to hear her motion. As support, Metzger cites this court’s decision in Rekstad v. First Bank Sys., Inc ., 238 F.3d 1259 (10th Cir. 2001). There, we held that a district court’s rema nd order to an ERISA plan administrator was not a final order because the ERI SA claimant’s eligibility for disability damages still remained to be determined on remand, and the remand order expressly stated that either party could obta in court review of the issues remanded by the order. Id . at 1261-62. Rekstad stated its ruling was in harmony with the majority of circuits that hold ERISA reman d orders are not final and1 Rekstad cited favorably those circuits courts that have he ld that an order

remanding a matter to an ERISA plan administrator f or further fact-finding is nonfinal: Williamson v. UNUM Life Ins. Co. of Am. , 160 F.3d 1247, 1250-52 (9th Cir. 1998); 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, 563 (11th Cir. 1995) (per curiam). Since Rekstad , the Sixth Circuit has also held that there can be no final decision under 28 U.S.C. § 1291 when a remandto an ERISA plan administrator occurs for additional fact finding, r egardless of whether the district court characterizes the case as open or closed on its docket. Bowers v. Sheet Metal Workers' Nat’l Pension Fund , 365 F.3d 535, 537 (6th Cir. 2004) (quoting Petralia ). There is a minority view. Rekstad noted that the Seventh Circuit has held that a remand order in an ERISA matter is a final, appealable judgment. Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan , 195 F.3d 975, 977-80 (7th Cir. 1999). Since Rekstad , the Ninth Circuit has ruled that an ERISA remand order may be final and appealable if (1) the district court order conclusively resolved a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous legal rule which might result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable. Hensley v. Northwest Permanente P.C. Retirement Plan and Trust , 258 F.3d 986, 993 (9th Cir. 2001). -6- appealable orders, but expressly declined to adopt a per se rule that remand orders are nonfinal. 1 Id . at 1263. Instead, Rekstad held that the decision as to whether an ERISA remand order is final should be made on a case-by-case basis. Id

. UNUM agrees with Metzger that the remand order was not a final judgment. It further argues that even if the reman d order was a final judgment, the district court had jurisdiction over Metzger’s sanction motion pursuant to its continuing jurisdiction to enforce its own orders and judgments. We agree with-7-

this latter proposition, and therefore express no o pinion as to whether the remand order was itself a final judgment. As a general rule, even after a district court has entered judgment, it retains ancillary jurisdiction to enforce its own orders and judgments. Peacock v. Thomas , 516 U.S. 349, 356 (1996) (recognizing “use of anc illary jurisdiction in subsequent proceedings for the exercise of the court’s inherent power to enforce its judgments”); Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 380 (1994) (stating that court has ancillary jurisdicti on to “manage its proceedings, vindicate its authority, and effectuate its decrees.”); see also 28 U.S.C. § 1367(a) (“[I]n any civil action of which the district court s have original jurisdiction, the district courts shall have supplemental jurisdictio n over all other claims that are so related to claims in the action . . . that they form part of the same case or controversy. . . .”). “‘The jurisdiction of a Court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied.’” U.S.I. Properties Corp. v. M.D. Constr. Co. , 230 F.3d 489, 496 (1st Cir. 2000) (quoting Wayman v. Southard , 23 U.S. (10 Wheat.) 1, 23 (1825)); see also 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federa l Practice and Procedure § 3523, at 89 (2d ed. 1984) (stating that ancillaryjurisdiction “include[s] those acts that the federal court must take in order prop erly to carry out its judgment on a matter as to which it has jurisdiction”).-8-

The Supreme Court has explained that, without ancil lary jurisdiction to enforce its own judgments, “the judicial power woul d be incomplete and entirely inadequate to the purposes for which it was conferr ed by the Constitution.” Peacock , 516 U.S. at 356 (quotation omitted). It cautione d, however, that the exercise of ancillary jurisdiction may not be exerc ised over factually independent proceedings “that are entirely new and original or where the relief sought is of a different kind or on a different principle than that of the prior decree.” Id . at 358 (quotation, citation, and alteration omitted). In this case, as a result of the entry of its reman d order, the district court possessed ancillary jurisdiction to enforce the terms of that order through supplementary proceedings, whether or not that orde r constituted a final and appealable order. We conclude this ancillary juris diction could unquestionably have been exercised by the district court to resolv e the question posed by Metzger’s motion. Her motion alleged that UNUM fai led to follow, indeed blatantly disregarded, the procedures the district court directed it to follow in the remand order when UNUM used evidence from outside m edical consultants to deny her disability claim without giving her an opp ortunity to review and rebut that opinion evidence. This issue is directly related to the proper interpretation and enforcement of the district court’s remand orde r. Metzger is not raising a new and original claim, nor is she seeking relief o f a different kind or based on a-9-

different principle than that addressed by the dist rict court’s remand order. Therefore, we conclude the district court was incor rect when it held it did not have jurisdiction to consider and decide Metzger’s sanction motion. Accordingly, the order of the district court is REV ERSED and REMANDED for further proceedings.

Entered for the Court

Timothy M. Tymkovich Circuit Judge