Petralia v. AT&T Global Information Solutions Co.

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-2007

                        ROSEMARY PETRALIA,

                      Plaintiff - Appellant,

                                v.

            AT&T GLOBAL INFORMATION SOLUTIONS COMPANY,
                          ETC., ET AL.,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]
                                                                 

                                           

                              Before

              Bownes and Cyr, Senior Circuit Judges,
                                                             

                   and Keeton,* District Judge.
                                                        

                                           

     James A. Fuller for appellant.
                              
     John  A. Houlihan, with whom  Edwards & Angell  was on brief
                                                             
for appellees.

                                           

                          June 12, 1997
                                           

                    
                              

*  Of the District of Massachusetts, sitting by designation.


          KEETON, District Judge.  In this proceeding we conclude
                    KEETON, District Judge
                                          

that  the remand order of  the district court  is not immediately

appealable as  a final judgment,  and that  the collateral  order

exception   to  the   final   judgment  rule   does  not   apply.

Accordingly, we dismiss for lack of appellate jurisdiction.

                          I.  Background
                                    I.  Background

          The  case before us  arose from the  termination of the

short-term  disability  benefits   of  the   Plaintiff-Appellant,

Rosemary  Petralia,  by  the  Defendants-Appellees,  AT&T  Global

Information Solutions  Company  ("AT&T"), and  The  Employee  and

Group Benefit Plan for Account Managers and Sales Representatives

for the Systemedia Division ("the plan").

          Plaintiff-Appellant sought review of the termination in

the district court.  The district court granted summary judgment,

in  part, in favor of Petralia.  Specifically, the district court

found  that the termination  notice Defendants-Appellees provided

to  Petralia did  not comply  with requirements  of the  Employee

Retirement  and  Income  Security  Act, 29  U.S.C.      1001-1461

("ERISA").  The notice failed to inform Petralia of her  right to

appeal  the  termination, and  it failed  to  inform her  of what

additional information  she could  provide to  avoid termination.

The district  court  determined that  the proper  remedy for  the

ERISA violations  was to remand the issue of Petralia's continued

eligibility for short-term benefits to the plan fiduciary.  

          The district court granted summary judgment in favor of

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Defendants-Appellees  on  the   issue  of  long-term   disability

benefits.  Since eligibility for long-term benefits is contingent

upon  exhaustion  of  short-term  benefits, and  the  Defendants-

Appellees   terminated   the   Plaintiff-Appellant's   short-term

benefits before  she exhausted them,  the Plaintiff-Appellant has

not applied  for, and  the Defendants-Appellees have  not denied,

long-term benefits.  Plaintiff-Appellant requests that this court

vacate  the remand  order  of the  district  court, and  use  its

equitable  powers   to  reinstate  the  Appellant   to  the  plan

retroactively and  to award past and  future long-term disability

benefits to the Appellant.

                   II.  Appellate Jurisdiction
                             II.  Appellate Jurisdiction

          Before we inquire into the merits of a dispute, we must

address  the  question of  appellate  jurisdiction.   Doughty  v.
                                                                       

Underwriters at Lloyd's, London  (In re Wallis), 6 F.3d  856, 860
                                                         

(1st  Cir.  1993).     There  is  a  "bedrock   requirement  that

jurisdiction  can never be assumed  but must be  premised on some

affirmative source."  Id.  
                                   

          Generally, appellate jurisdiction is limited  to review

of final decisions of the district courts.  28 U.S.C.   1291; see
                                                                           

Massachusetts v. V &  M Management, Inc., 929 F.2d 830,  833 (1st
                                                  

Cir. 1991)(per curiam).

          A  "collateral order"  may  be immediately  appealable,

however, if it has certain prescribed  characteristics.  Cohen v.
                                                                        

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (immediate
                                      

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appeal is proper if  the decision of the district  court "appears

to fall in  that small  class which finally  determine claims  of

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

action,  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").  

          "[A]n order or judgment  is usually considered  'final'

(hence, appealable)  only when it resolves  the contested matter,

leaving nothing  to be done except execution  of the judgment.  A

corollary  rule is  that  an  order  remanding  a  matter  to  an

administrative agency for further findings and proceedings is not

final."    Director,  Office  of Workers'  Compensation Programs,
                                                                           

United  States Dep't of Labor v. Bath  Iron Works Corp., 853 F.2d
                                                                 

11,  13  (1st  Cir.  1988)(quotations,  citations,  and  footnote

omitted).  

          We  think  this corollary  rule  applies  to the  order

remanding this  case  to the  plan  administrators.   See,  e.g.,
                                                                          

Shannon v.  Jack Eckerd Corp., 55 F.3d 561, 563 (11th Cir. 1995).
                                       

The  district  court  sent the  present  case  back  to the  plan

administrators to determine "the issue of [Appellant's] continued

eligibility for  short-term benefits."   Petralia v.  AT&T Global
                                                                           

Info.  Solutions Co., No. 94-533-M  (D.N.H. July 29, 1996) (order
                              

remanding  case  to plan  administrators).    The district  court

stated in its  order:   "[The plan] shall  afford Ms. Petralia  a

full  opportunity  under  the   plan's  terms  to  establish  her

continued  eligibility for short-term benefits, as of the time of

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improper termination, which of  course will require an assessment

of whatever evidence she might present to establish her continued

eligibility."  Id.  Rather than "leaving nothing to be done," the
                            

district  court  required  further  proceedings  and findings  on
                                   

remand.  Applying the standard cited above to the remand order in

this case,  we conclude that  the order is not  a final judgment.

Therefore,   28   U.S.C.     1291  does   not   confer  appellate

jurisdiction over this case.

          The "collateral order" doctrine  developed in Cohen and
                                                                       

later decisions does not apply in the circumstances of this case.

That  doctrine is, in essence, "a 'narrow exception to the normal

application of the final judgment rule,'" prescribed in 28 U.S.C.

  1291.  Doughty, 6 F.3d at 862 (quoting Midland Asphalt Corp. v.
                                                                        

United States, 489 U.S.  794, 798 (1989)).  The  collateral order
                       

doctrine is  "limited to  orders that (1)  conclusively determine

(2) important  legal questions which are  (3) completely separate

from  the merits of the underlying action and are (4) effectively

unreviewable on appeal from  a final judgment."  Doughty,  6 F.3d
                                                                  

at 862.  

          The  issue remanded  to the  plan in  this case  is not
                                                                           

collateral;  Petralia's continued  eligibility for  benefits, the

issue  remanded  to the  plan, is  the very  heart of  this case.

Consequently, the issue is  effectively reviewable on appeal from

a  final judgment,  and  the rationale  of  the collateral  order

doctrine  does not apply  to this case.   Moreover, the issue has

not  been conclusively determined below, as required by the first

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prong  of the collateral order  doctrine.  "[T]o  come within the

collateral  order rule,  a decree  must definitively  resolve the

merits of the collateral issue, not merely determine  which court

will  thereafter resolve it."  Id. at  863.  Because the order of
                                            

the  district  court  did  not  conclusively  determine  a  legal

question separate from the  merits of the underlying action,  and

the  issue remains  subject  to review  on  appeal from  a  final

judgment,  we conclude that the collateral order exception to the

final judgment rule does not apply to this case.

             III.  Mandamus or Other Prerogative Writ
                       III.  Mandamus or Other Prerogative Writ

          The  initial briefs  of  the parties  having failed  to

address the issue of appellate jurisdiction, the Panel questioned

counsel about jurisdiction and allowed the filing of Supplemental

Briefs.   Appellees acknowledged lack of  appellate jurisdiction.

In her Supplemental Brief, Appellant argues  that in Gillespie v.
                                                                        

United States  Steel  Corp.,  379  U.S.  148  (1964),  the  Court
                                     

recognized  "what might  well be  called the  'twilight zone'  of

finality," id.  at 152, and asks  us to take jurisdiction  on the
                        

ground   that  otherwise   Rosemary  Petralia  may   be  "forever

foreclosed" from appellate review of "the proof of her [claim of]

chronic    fatigue    syndrome."       Supplemental    Brief   of

Plaintiff/Appellant  at   4.    Although  this   request  in  the

Supplemental  Brief  was not  in the  form  of a  petition  for a

prerogative writ, in the  interests of assurance of  fair process

we address the request as if it were so designated.

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          A writ of mandamus "must be used stintingly and brought

to bear only in extraordinary situations." Doughty, supra, 6 F.3d
                                                                   

at  865.   To show  grounds for  such extraordinary  relief here,

Rosemary  Petralia  would be  required  to  demonstrate that  the

remand  order was palpably erroneous and that she faces a special
                                                  

risk  of irreparable harm.  Id.  Plaintiff-Appellant has not made
                                         

this showing since, as noted above, issues regarding her proof of

her  claim   of  chronic  fatigue  syndrome   remain  effectively

reviewable  on appeal from a final judgment, after one is ordered

and entered.  See id. at 866.
                               

       IV.  Retention of Jurisdiction in the District Court
                 IV.  Retention of Jurisdiction in the District Court

          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.

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                          V.  Conclusion
                                    V.  Conclusion

          Having determined that the remand order of the district

court is not a final judgment, that the collateral order doctrine

does not apply to the decision of the district court remanding an

issue to the plan administrators, and, that a prerogative writ is

not warranted, we dismiss the appeal for lack of jurisdiction.  

          So ordered.  Costs are awarded to Appellees.

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