Tenth Circuit Notes Split Re: Finality of ERISA Remand Orders

Per Metzger v. Unum Life Insurance Co. of America, --- F.3d ----, 2007 WL 521226 (10th Cir. Feb. 21, 2007):

We analyze the finality of an ERISA remand order, such as the 2004 order, “on a case-by-case basis applying well-settled principles governing final decisions.” Rekstad v. First Bank System, Inc., 238 F.3d 1259, 1263 (10th Cir.2001) (quotation omitted). In Rekstad, we compared ERISA cases to the administrative law context, in which “a remand order is ‘generally considered a nonfinal decision ... not subject to immediate review in the court of appeals.’ “ Id. at 1262 ( quoting Baca-Prieto v. Guigni, 95 F.3d 1006, 1008 (10th Cir.1996)) (omission in original). Unless an order meets the requirements of our “practical finality rule,” we generally deem the order non-final for purposes of our review. Id. (quotation omitted). Under that rule, an order is final only if finality is “necessary to ensure that the court of appeals [is] able to review an important legal question which the remand made effectively unreviewable.” Id. (quotations omitted).FN1

FN1. Circuit courts have split over whether an order remanding a matter to an ERISA plan administrator is final. The First, Sixth, and Eleventh Circuits have held that such orders are non-final. See Bowers v. Sheet Metal Workers' Nat'l Pension Fund, 365 F.3d 535, 537 (6th Cir.2004); 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). The Seventh Circuit, however, considers ERISA remand orders to be final and appealable. See Perlman v. Swiss Bank Corp. Comprehensive Disability Prot. Plan, 195 F.3d 975, 977-80 (7th Cir.1999). In Hensley v. N.W. Permanente P.C. Ret. Plan & Trust, the Ninth Circuit employed an approach similar to our “practical finality rule” and held that an ERISA remand order is final when “appellate jurisdiction is necessary to ensure proper review of an important legal question which a remand may make effectively unreviewable.” 258 F.3d 986, 994 (9th Cir.2001) ( overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 966 (9th Cir.2006)).