PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICKY A. DICKENS,
Plaintiff-Appellee,
v.
AETNA LIFE INSURANCE COMPANY,
As Plan Administrator for the No. 11-1434
Bristol-Meyers Squibb Long Term
Disability Group Plan, a foreign
corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Thomas E. Johnston, District Judge.
(2:10-cv-00088)
Argued: March 22, 2012
Decided: April 20, 2012
Before MOTZ, KING, and GREGORY, Circuit Judges.
Appeal dismissed by published opinion. Judge King wrote the
opinion, in which Judge Motz and Judge Gregory joined.
2 DICKENS v. AETNA LIFE INSURANCE
COUNSEL
ARGUED: Christopher Alan Weals, MORGAN, LEWIS &
BOCKIUS, LLP, Washington, D.C., for Appellant. Rachel J.
Goldfarb, THE BELL LAW FIRM, Charleston, West Vir-
ginia, for Appellee. ON BRIEF: James E. Bayles, Jr., MOR-
GAN, LEWIS & BOCKIUS, LLP, Chicago, Illinois, for
Appellant. Harry F. Bell, Jr., THE BELL LAW FIRM,
Charleston, West Virginia, for Appellee.
OPINION
KING, Circuit Judge:
Plaintiff Ricky A. Dickens filed suit in state court pursuant
to the Employee Retirement Income Security Act of 1974
("ERISA"), after defendant Aetna Life Insurance Company
("Aetna") terminated his long-term disability benefits under
his employer-sponsored plan. Following removal of the case
to the Southern District of West Virginia, the parties filed
cross-motions for summary judgment. Dickens also moved in
the alternative to have the matter remanded to Aetna. By its
Memorandum Opinion and Order of March 28, 2011, the dis-
trict court denied both summary judgment requests, concluded
that relevant evidence had not been adequately addressed, and
remanded to Aetna for further consideration. See Dickens v.
Aetna Life Ins. Co., No. 2:10-cv-00088 (S.D. W. Va. Mar. 28,
2011) (the "Order").* Aetna, in turn, noticed this appeal.
Notwithstanding the parties’ failure to identify and address
the question of appellate jurisdiction, we raised the issue at
oral argument. See Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 278 (1977) (observing that appellate
courts are obliged to inquire into jurisdiction sua sponte if
*The Order is found at pages 26-36 of the Joint Appendix filed by the
parties in this appeal.
DICKENS v. AETNA LIFE INSURANCE 3
there is doubt as to its existence). In response to our inquiry,
Aetna maintained that the Order is appealable under the col-
lateral order doctrine. As explained below, we disagree and
dismiss the appeal for lack of jurisdiction.
I.
The underlying facts in this case are largely undisputed. In
2002, Bristol-Meyers Squibb Company ("BMS") hired Dick-
ens to be a senior territory business manager. In connection
with his employment, Dickens participated in a long-term dis-
ability ("LTD") group plan sponsored by BMS (the "BMS
Plan," or the "Plan"). In early 2004, Dickens began to experi-
ence clinical depression, anxiety, insomnia, and suicidal ide-
ations. He applied for LTD benefits under the Plan, which a
predecessor claims administrator granted on July 16, 2004. As
required by the Plan, Dickens also applied for Social Security
disability benefits. The Social Security Administration
("SSA") thereafter determined that Dickens was disabled
under applicable law and awarded him benefits. Dickens con-
tinued to receive LTD benefits until August 31, 2008, at
which point Aetna — the successor claims administrator for
the Plan — terminated such benefits because, in its view, the
medical evidence indicated that Dickens no longer suffered
from a debilitating injury or illness. The SSA nevertheless
continued to regard Dickens as disabled and to pay him bene-
fits.
Dickens filed two appeals with Aetna concerning the termi-
nation of his LTD benefits, both of which were denied.
Accordingly, on October 23, 2009, Dickens initiated this
action in the Circuit Court of Fayette County, West Virginia,
seeking to restore his LTD benefits and to enjoin Aetna from
terminating such benefits in the future. On January 28, 2010,
Aetna removed this case to federal court, invoking federal
question jurisdiction pursuant to ERISA. Subsequently, the
parties filed cross-motions for summary judgment. Dickens
moved in the alternative to have the matter remanded to
4 DICKENS v. AETNA LIFE INSURANCE
Aetna. On March 28, 2011, the district court entered its Order,
denying summary judgment to either party but granting Dick-
ens’s motion "to the extent it seeks remand to [Aetna] for
reconsideration." Order 11.
In so ruling, the district court concluded that Aetna had
abused its discretion by neglecting to address relevant evi-
dence relating to the SSA’s award of disability benefits. More
specifically, the court decided that, because the BMS Plan’s
and SSA’s definitions of "disability" were similar and the
SSA’s regulatory definition was more restrictive, Aetna was
obliged to accord substantial weight to the SSA’s disability
determination. The Order explained that the SSA’s disability
award also warranted consideration because the Plan required
Dickens to apply for Social Security benefits, and the Plan
profited from the SSA’s award in offset of the Plan’s LTD
benefits. Because the court concluded that Aetna had
accorded no weight to the SSA’s determination and failed to
consider the SSA disability award in "any meaningful way,"
it deemed Aetna’s decision to terminate LTD benefits "arbi-
trary and unreasonable." Order 9-10. The court, however, "ex-
press[ed] no opinion as to whether [Dickens] is disabled
under the LTD Plan’s definition." Id. at 10. Indeed, although
Dickens sought attorney’s fees with the view that the remand
to Aetna represented a success on the merits, the court
rejected that request, emphasizing that its Order did not
address the substance of the claim. "Instead, the remand in
this case," the court observed, "represents a purely procedural
victory" for Dickens. Id.
Consistent with the view that the remand was but a momen-
tary backtrack of the litigation, the district court never entered
a final judgment. Nevertheless, on April 27, 2011, Aetna filed
its notice of appeal. Dickens did not contest appellate jurisdic-
tion, and briefing and argument ensued in this Court. The
jurisdictional issue was first raised and addressed at oral argu-
ment.
DICKENS v. AETNA LIFE INSURANCE 5
II.
A.
1.
Our first obligation is "to ascertain whether we possess
jurisdiction of an appeal, an issue we assess de novo." United
States v. Jefferson, 546 F.3d 300, 308 (4th Cir. 2008). Juris-
diction in a court of appeals is generally reserved for the
"final decisions of the district courts of the United States." 28
U.S.C. § 1291. It is undisputed that the Order is an interlocu-
tory one, in that it did not resolve the merits of Dickens’s
claims for relief, and no final order or judgment was entered
by the district court. See Catlin v. United States, 324 U.S.
229, 233 (1945) (defining a "final decision" under § 1291 as
one that "ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment"). It is also evi-
dent that the Order is not among the category of interlocutory
orders that have been deemed final. See, e.g., 28 U.S.C.
§§ 1291, 1292(b); Fed. R. Civ. P. 54(b).
Although we have not addressed the question until now,
several of our sister circuits have held that a district court
order remanding to an ERISA claims administrator for recon-
sideration does not constitute a final decision. See, e.g., Young
v. Prudential Ins. Co. of Am., 671 F.3d 1213, 1215-16 (11th
Cir. 2012) (concluding that remand of ERISA dispute to
claims administrator for further proceedings is not appeal-
able); Graham v. Hartford Life & Accident Ins. Co., 501 F.3d
1153, 1161 (10th Cir. 2007) (same); Borntrager v. Cent.
States, Se. & Sw. Areas Pension Fund, 425 F.3d 1087, 1091
(8th Cir. 2005) (same); Bowers v. Sheet Metal Workers’ Nat’l
Pension Fund, 365 F.3d 535, 537-38 (6th Cir. 2004) (same);
Petralia v. AT&T Global Info. Solutions Co., 114 F.3d 352,
354 (1st Cir. 1997) (same). Conversely, the Seventh and
Ninth Circuits have taken the minority view that, in certain
circumstances, a district court’s remand to an ERISA claims
6 DICKENS v. AETNA LIFE INSURANCE
administrator may constitute a final decision. See Hensley v.
Nw. Permanente P.C. Ret. Plan & Trust, 258 F.3d 986, 993-
94 (9th Cir. 2001), overruled on other grounds by Abatie v.
Alta Health & Life Ins. Co., 458 F.3d 955, 966 (9th Cir.
2006); Perlman v. Swiss Bank Corp. Comprehensive Disabil-
ity Prot. Plan, 195 F.3d 975, 978-79 (7th Cir. 1999). As
explained below, the decisions adopting the minority view are
less than convincing.
2.
First, the Seventh Circuit concluded in its Perlman decision
that an order remanding a benefits determination to an ERISA
claims administrator is a final decision — appealable under
§ 1291 — if it can be deemed the functional equivalent of a
remand to the Commissioner of Social Security pursuant to
the fourth unnumbered sentence of 42 U.S.C. § 405(g) (com-
monly called a "sentence-four remand"). 195 F.3d at 978-79.
A sentence-four remand in a Social Security case authorizes
a federal court to enter "‘a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Secur-
ity, with or without remanding the case for a rehearing.’" Id.
at 978. The Perlman court observed that a remand to an
ERISA claims administrator can "serve the same functions" as
a sentence-four remand and thus acquire "the same jurisdic-
tional treatment for purposes of § 1291." Id. at 979. The Sev-
enth Circuit explained that, if a district court decides that the
ERISA claims administrator’s benefits determination "was
erroneous and enters a judgment wrapping up the litigation,"
the court’s decision is final "even if extra-judicial proceedings
lie ahead" on remand, because "the case may never return to
court." Id. In the same vein, a sentence-four remand also "de-
pends on a finding of error in the Commissioner’s decision"
and "concludes the litigation in the district court." Id. at 978.
Thus, "any protest about the Commissioner’s decision on [a
sentence-four] remand requires a new suit." Id.
In our view, analogizing a sentence-four remand in a Social
Security case to an ERISA remand is inapt because, as the
DICKENS v. AETNA LIFE INSURANCE 7
Eighth Circuit explained in rejecting the Perlman rule,
§ 405(g) "expressly declares that sentence four remand orders
are final judgments [and] ERISA has no comparable provi-
sion." See Borntrager, 425 F.3d at 1091; accord Bowers, 365
F.3d at 537-38. Furthermore, there is simply no basis for
treating an order remanding a benefits determination to an
ERISA claims administrator differently from a remand order
to a federal administrative agency — which, as a general
proposition, constitutes a non-final, non-appealable decision.
See W. Va. Highlands Conservancy v. Kempthorne, 569 F.3d
147, 151-52 (4th Cir. 2009) (observing that remand to an
administrative agency "is usually not a final, appealable deci-
sion [unless it] will be effectively unreviewable after a resolu-
tion of the merits").
Second, the Ninth Circuit in Hensley allied itself with the
Seventh Circuit in concluding that an ERISA remand may, in
the proper circumstances, constitute an appealable order.
Unlike the Seventh Circuit, however, the Hensley court drew
no analogy to a Social Security remand. Rather, the Hensley
court simply followed Ninth Circuit precedent, which appar-
ently deems an order remanding to an administrative agency
to be appealable when it satisfies a three-part test — that is,
the order conclusively resolves "a separable legal issue,"
application of an erroneous rule on remand "may result in a
wasted proceeding," and "review would, as a practical matter,
be foreclosed if an immediate appeal were unavailable." 258
F.3d at 993 (alteration and internal quotation marks omitted).
The court of appeals determined that the order being chal-
lenged in Hensley satisfied all those factors. Significantly, we
have never endorsed the Hensley analysis. Rather, we have
been satisfied to adhere to the traditional collateral order doc-
trine, and the Supreme Court’s consistent admonition that the
"doctrine ‘must never be allowed to swallow the general rule
that a party is entitled to a single appeal, to be deferred until
final judgment has been entered.’" See United States v. Myers,
593 F.3d 338, 345 (4th Cir. 2010) (quoting Mohawk Indus.,
Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009)).
8 DICKENS v. AETNA LIFE INSURANCE
B.
Because there is no final decision here, we only possess
appellate jurisdiction if the Order is among "that small class
[of decisions] which finally determine claims of right separa-
ble 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." Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949). To qualify as
a collateral order under § 1291, a district court decision must
"[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." Will v. Hallock, 546 U.S. 345, 349 (2006)
(alterations in original) (internal quotation marks omitted);
see also Mohawk, 130 S. Ct. at 604. Aetna maintained at oral
argument that the Order satisfies each of the collateral order
requirements.
1.
In regard to the first collateral order requirement, Aetna
asserts that the Order conclusively determined a disputed
legal question, namely, the evidentiary standard that an
ERISA claims administrator should apply in assessing a dis-
ability benefits claim. The Order concluded that, in light of
the SSA’s regulatory definition of disability, Aetna must
accord substantial weight to the SSA’s disability determina-
tion, and meaningfully consider the SSA’s disability award.
Although the Order was tailored to the underlying facts, the
district court left no doubt that it had conclusively resolved
the disputed question relating to the evidentiary standard for
Aetna’s LTD benefits determination. Fulfillment of the first
collateral order requirement in Aetna’s favor does not end our
jurisdictional inquiry, however, because if the Order "fails to
satisfy any of [the three] requirements, it is not an immedi-
ately appealable collateral order." S.C. State Bd. of Dentistry
DICKENS v. AETNA LIFE INSURANCE 9
v. FTC, 455 F.3d 436, 441 (4th Cir. 2006) (internal quotation
marks omitted).
2.
Turning to the second collateral order requirement, Aetna
points out that the Order did not reach the merits of Dickens’s
claims. True enough, but the district court’s decision concern-
ing the weight and consideration to be accorded the SSA’s
disability determination is not "completely separate from the
merits." See Will, 546 U.S. at 349.
We have previously explained that the "issues raised in an
interlocutory appeal need not be identical to those to be deter-
mined on the merits to fail under [the second] requirement;
only a threat of substantial duplication of judicial decision
making is necessary." State Bd. of Dentistry, 455 F.3d at 441.
And that threat is real in this case because, according to the
Order, the SSA’s disability determination may be integral to
Dickens’s entitlement to LTD benefits under the BMS Plan.
Cf. Shannon v. Jack Eckerd Corp., 55 F.3d 561, 563 (11th
Cir. 1995) (declining to apply collateral order doctrine in
ERISA litigation where order remanding to claims adminis-
trator for consideration of relevant evidence was "inextricably
intertwined with the merits of [plaintiff’s] eligibility for bene-
fits").
3.
Even if the SSA’s disability determination were not so
enmeshed in Dickens’s LTD benefits claim, we are not con-
vinced that the Order itself — or any subsequent award or
denial of benefits by Aetna — would be effectively unreview-
able, the third collateral order requirement. Aetna posits that
the third requirement is met because, if it gives substantial
weight to the SSA’s disability determination, it will be com-
pelled to award LTD benefits and thereby forfeit judicial
review. Put succinctly, we disagree with Aetna’s premise that,
10 DICKENS v. AETNA LIFE INSURANCE
to comply with the Order, it will have no choice but to award
LTD benefits to Dickens. The Order has directed Aetna, as
the claims administrator, to reweigh and reconsider the rele-
vant evidence. Aetna was not, however, directed to render a
finding of disability. Cf. Williamson v. UNUM Life Ins. Co.
of Am., 160 F.3d 1247, 1251 (9th Cir. 1998) (rejecting insur-
er’s argument that remand order "require[d] the award of ben-
efits," observing rather that insurer "must make the necessary
determinations regarding disability . . . then determine
whether it will actually award benefits"); Borntrager, 425
F.3d at 1093 (concluding insurer "remain[ed] free, on remand,
to confirm or reinstate the expulsion order on the existing
record and then defend its decision in the district court").
Moreover, even if affording substantial weight to the SSA’s
disability determination yields an award of LTD benefits to
Dickens, Aetna will nonetheless be entitled to appeal from a
final judgment. The First, Sixth, and Eleventh Circuits have
addressed similar concerns, that is, that ERISA claims admin-
istrators would "not be able to challenge the [remand] order
in a later proceeding because [they] would be challenging
[their] own eligibility determination." See Bowers, 365 F.3d
at 537; Young, 671 F.3d at 1216; Petralia, 114 F.3d at 354.
Those courts agree that there is a simple solution to any such
perceived dilemma: "interpret the [remand] order of the dis-
trict court . . . as having retained jurisdiction." See Petralia,
114 F.3d at 354. This approach "allow[s] either party to chal-
lenge the ensuing eligibility determination by motion before
the same court." Bowers, 365 F.3d at 537. Notably, it also
preserves for appeal the claims administrator’s challenges to
the remand order and to "any final judgment entered by the
district court following the . . . decision on remand." See
Young, 671 F.3d at 1216. Adopting the rationale of our afore-
mentioned sister circuits, we are satisfied to construe the
Order as retaining jurisdiction in the Southern District of
West Virginia for appropriate further proceedings following
disposition of the court’s remand to Aetna. We thus conclude
DICKENS v. AETNA LIFE INSURANCE 11
that Aetna is unable to satisfy the third collateral order
requirement.
III.
Pursuant to the foregoing, the collateral order doctrine does
not apply here. Therefore, we are bereft of jurisdiction and
must dismiss this appeal.
DISMISSED