Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS May 21, 2026 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court KIRSTEN W., individually and on behalf of C.W., a minor,
Plaintiff - Appellant,
v. No. 25-4029 (D.C. No. 2:19-CV-00710-DBB) CALIFORNIA PHYSICIANS’ (D. Utah) SERVICE, d/b/a Blue Shield of California; TRINET GROUP, INC. SECTION 125, SECTION 129, AND FLEXIBLE SPENDING ACCOUNT PLAN,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, EBEL, and FEDERICO, Circuit Judges. _________________________________
After examining the briefs and appellate record, this panel has *
determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 2
Kirsten W. filed the operative complaint in this case on behalf of
herself and her minor son, C.W., after their health benefits plan denied
claims for medical expenses arising out of C.W.’s treatment at two
behavioral health facilities. On cross-motions for summary judgment, the
district court granted summary judgment to the plaintiffs on one claim, to
one defendant on another claim, and granted summary judgment as to
another defendant on all claims. But the district court remanded one issue
– the determination of benefits – back to the health benefits plan
administrator.
Kirsten filed a notice of appeal, but we noted a possible jurisdictional
defect and ordered the parties to address whether the district court’s
summary judgment order constituted a final judgment for the purposes of
our appellate jurisdiction. See 28 U.S.C. § 1291. Having reviewed the briefs
and the record, we conclude that we lack jurisdiction and accordingly
dismiss the appeal.
I
This appeal arises out of a case stretching back to 2019, when Kirsten
W. first filed suit against California Physicians’ Service (doing business as
Blue Shield of California) and Trinet Group, Inc. The second amended and
currently operative complaint alleges that in denying benefits to Kirsten
and her son under their health plan, Blue Shield and Trinet violated the
2 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 3
Employee Retirement Income Security Act of 1974 (ERISA) and the Mental
Health Parity & Addiction Equity Act of 2008 (the Parity Act). As alleged,
Trinet is the plan covered by ERISA and the Parity Act, while Blue Shield
is the agent and administrator of the plan. Blue Shield concluded that C.W.
could have been treated in an outpatient setting and so his treatment at
two residential facilities was not medically necessary. Blue Shield denied
benefits for each treatment facility on this basis.
On August 2, 2024, both parties moved for summary judgment.
Kirsten argued first that Blue Shield’s conclusion that C.W. could have been
treated in an outpatient setting was arbitrary and capricious in violation of
ERISA, and second that Blue Shield’s criteria for determining whether to
grant or deny benefits for mental health care was more restrictive than
criteria for comparable medical or surgical care in violation of the Parity
Act. Kirsten acknowledged that the record was insufficient for the district
court to award benefits directly, so she asked the court to “remand the case
solely for the purpose of allowing Defendants to consider the amount at
issue.” Aplt. App. I at 102. 1
1 The record disclosed the amount of benefits owed with respect to one
treatment facility but not the other, so the total amount of benefits was still uncertain.
3 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 4
Blue Shield and Trinet argued in their motion that they were entitled
to summary judgment on all claims, but at a minimum, Kirsten had “failed
to supply any claims or proof of payment upon which the Court could
determine entitlement to benefits” with respect to one residential treatment
facility. Aple. App. I at 61. Independently, Trinet contended that Kirsten
had no evidence of wrongdoing specific to it, so Trinet was entitled to
summary judgment on all claims against it. In response, Kirsten reiterated
her request for a limited remand and argued that Trinet was culpable for
Blue Shield’s conduct because the health benefits plan was self-funded.
The district court granted summary judgment to Kirsten on the
ERISA claim but granted summary judgment to Blue Shield on the Parity
Act claim. With respect to the ERISA claim, the district court found
“remand is the appropriate remedy to consider Plaintiff’s claims regarding
coverage.” Aplt. App. I at 221. Nonetheless, the district court warned that
remand was not an opportunity for Blue Shield “to reevaluate a claim based
on a rationale not raised in the administrative record, and not previously
conveyed to plaintiffs.” Id. (quoting David P. v. United Healthcare Insurance
Company, 77 F.4th 1293, 1316 (10th Cir. 2023)). Additionally, the district
court granted summary judgment to Trinet because “Plaintiff did not
request – and the court will not order – an award of benefits for which Trinet
could be responsible at this time.” Aplt. App. I at 230.
4 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 5
The district court entered judgment on February 10, 2025. This timely
appeal followed.
II
With few exceptions not relevant here, the courts of appeals have
jurisdiction over “all final decisions of the district courts of the United
States.” 28 U.S.C. § 1291. The so-called final judgment rule is deceptively
simple: we have jurisdiction to review the judgments of the district court
only after the work of the district court is completed. In re Motor Fuel
Temperature Sales Practices Litigation, 641 F.3d 470, 481 (10th Cir. 2011).
“A decision is ‘final’ when it ‘ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.’” S.E.C. v. Merrill
Scott & Associates, Ltd., 600 F.3d 1262, 1270 (10th Cir. 2010) (quoting
Boughton v. Cotter Corp., 10 F.3d 746, 748 (10th Cir. 1993)); Frank v.
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Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS May 21, 2026 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court KIRSTEN W., individually and on behalf of C.W., a minor,
Plaintiff - Appellant,
v. No. 25-4029 (D.C. No. 2:19-CV-00710-DBB) CALIFORNIA PHYSICIANS’ (D. Utah) SERVICE, d/b/a Blue Shield of California; TRINET GROUP, INC. SECTION 125, SECTION 129, AND FLEXIBLE SPENDING ACCOUNT PLAN,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, EBEL, and FEDERICO, Circuit Judges. _________________________________
After examining the briefs and appellate record, this panel has *
determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 2
Kirsten W. filed the operative complaint in this case on behalf of
herself and her minor son, C.W., after their health benefits plan denied
claims for medical expenses arising out of C.W.’s treatment at two
behavioral health facilities. On cross-motions for summary judgment, the
district court granted summary judgment to the plaintiffs on one claim, to
one defendant on another claim, and granted summary judgment as to
another defendant on all claims. But the district court remanded one issue
– the determination of benefits – back to the health benefits plan
administrator.
Kirsten filed a notice of appeal, but we noted a possible jurisdictional
defect and ordered the parties to address whether the district court’s
summary judgment order constituted a final judgment for the purposes of
our appellate jurisdiction. See 28 U.S.C. § 1291. Having reviewed the briefs
and the record, we conclude that we lack jurisdiction and accordingly
dismiss the appeal.
I
This appeal arises out of a case stretching back to 2019, when Kirsten
W. first filed suit against California Physicians’ Service (doing business as
Blue Shield of California) and Trinet Group, Inc. The second amended and
currently operative complaint alleges that in denying benefits to Kirsten
and her son under their health plan, Blue Shield and Trinet violated the
2 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 3
Employee Retirement Income Security Act of 1974 (ERISA) and the Mental
Health Parity & Addiction Equity Act of 2008 (the Parity Act). As alleged,
Trinet is the plan covered by ERISA and the Parity Act, while Blue Shield
is the agent and administrator of the plan. Blue Shield concluded that C.W.
could have been treated in an outpatient setting and so his treatment at
two residential facilities was not medically necessary. Blue Shield denied
benefits for each treatment facility on this basis.
On August 2, 2024, both parties moved for summary judgment.
Kirsten argued first that Blue Shield’s conclusion that C.W. could have been
treated in an outpatient setting was arbitrary and capricious in violation of
ERISA, and second that Blue Shield’s criteria for determining whether to
grant or deny benefits for mental health care was more restrictive than
criteria for comparable medical or surgical care in violation of the Parity
Act. Kirsten acknowledged that the record was insufficient for the district
court to award benefits directly, so she asked the court to “remand the case
solely for the purpose of allowing Defendants to consider the amount at
issue.” Aplt. App. I at 102. 1
1 The record disclosed the amount of benefits owed with respect to one
treatment facility but not the other, so the total amount of benefits was still uncertain.
3 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 4
Blue Shield and Trinet argued in their motion that they were entitled
to summary judgment on all claims, but at a minimum, Kirsten had “failed
to supply any claims or proof of payment upon which the Court could
determine entitlement to benefits” with respect to one residential treatment
facility. Aple. App. I at 61. Independently, Trinet contended that Kirsten
had no evidence of wrongdoing specific to it, so Trinet was entitled to
summary judgment on all claims against it. In response, Kirsten reiterated
her request for a limited remand and argued that Trinet was culpable for
Blue Shield’s conduct because the health benefits plan was self-funded.
The district court granted summary judgment to Kirsten on the
ERISA claim but granted summary judgment to Blue Shield on the Parity
Act claim. With respect to the ERISA claim, the district court found
“remand is the appropriate remedy to consider Plaintiff’s claims regarding
coverage.” Aplt. App. I at 221. Nonetheless, the district court warned that
remand was not an opportunity for Blue Shield “to reevaluate a claim based
on a rationale not raised in the administrative record, and not previously
conveyed to plaintiffs.” Id. (quoting David P. v. United Healthcare Insurance
Company, 77 F.4th 1293, 1316 (10th Cir. 2023)). Additionally, the district
court granted summary judgment to Trinet because “Plaintiff did not
request – and the court will not order – an award of benefits for which Trinet
could be responsible at this time.” Aplt. App. I at 230.
4 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 5
The district court entered judgment on February 10, 2025. This timely
appeal followed.
II
With few exceptions not relevant here, the courts of appeals have
jurisdiction over “all final decisions of the district courts of the United
States.” 28 U.S.C. § 1291. The so-called final judgment rule is deceptively
simple: we have jurisdiction to review the judgments of the district court
only after the work of the district court is completed. In re Motor Fuel
Temperature Sales Practices Litigation, 641 F.3d 470, 481 (10th Cir. 2011).
“A decision is ‘final’ when it ‘ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.’” S.E.C. v. Merrill
Scott & Associates, Ltd., 600 F.3d 1262, 1270 (10th Cir. 2010) (quoting
Boughton v. Cotter Corp., 10 F.3d 746, 748 (10th Cir. 1993)); Frank v.
Crawley Petroleum Corp., 992 F.3d 987, 995 (10th Cir. 2021). This definition
of finality generally excludes orders that leave some claims unresolved or
leave the question of remedy open. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S.
737, 744 (1976).
In the ERISA context, this finality principle is implicated when the
appellant seeks review of a district court order that remands part of the
dispute back to the plan administrator. Although this court applies a “case-
by-case approach” to determining the finality of ERISA remand orders,
5 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 6
Metzger v. UNUM Life Ins. Co. of America, 476 F.3d 1161, 1165 (10th Cir.
2007), they “will not be considered final where there are still issues to be
resolved on remand and the parties’ legal arguments can be considered in a
future appeal after these issues are resolved.” Spradley v. Owens-Illinois
Hourly Employees Welfare Ben. Plan, 686 F.3d 1135, 1139 (10th Cir. 2012).
And a district court order that remands for the plan administrator to
determine the “correct amount” of damages has long been considered non-
final under our cases. Rekstad v. First Bank System, Inc., 238 F.3d 1259,
1262 (10th Cir. 2001). This is so because a judgment that fails to “specify a
sum certain” for damages is generally non-final, no less so in the ERISA
context. Albright v. UNUM Life Ins. Co. of America, 59 F.3d 1089, 1092
(10th Cir. 1995).
Under our precedent, then, the district court’s decision here was not
final for the purposes of appellate jurisdiction. It is undisputed that the
district court’s judgment did not contain a “sum certain” because it
remanded to Blue Shield to determine the amount of benefits owed, if any.
Id. What’s more, the district court’s grant of summary judgment to Trinet
explicitly contemplated further proceedings: “Any liability attributable to
Trinet could only arise in the future in the event that, on remand, either (i)
[Blue Shield] arbitrarily and capriciously determines that C.W. is not
entitled to benefits for his treatment or (ii) [Blue Shield] determines that
6 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 7
C.W. is entitled to benefits, but Defendants refuse to pay. In either event,
Plaintiff currently has no claim against Trinet.” Aplt. App. I at 230
(emphasis added).
In addressing this court’s jurisdiction, Kirsten primarily argues that
the district court’s summary judgment order incorrectly “dismissed” her
claims against Trinet, the plan itself. Aplt. Juris. Br. at 10 (“Absent the
presence of the Plan, Plaintiff-Appellant has no effective means of
pursuing” her claims). “To assert error in the decision, or even to be able to
demonstrate it, does not invest us with power of review.” Mobile, J. & K.C.R.
Co. v. Mississippi, 210 U.S. 187, 205 (1908). But even if it did, Kirsten never
explains why, if Blue Shield determines the total amount of benefits owed
but refuses to pay, she cannot then go back to district court and seek relief
against Trinet at that point. The conclusory assertion that she cannot do so,
without citations to the record or other examples in the caselaw, does not
persuade us that our jurisdiction has vested.
Kirsten also argues that the district court’s remand order was
“boundless,” “unbridled,” and therefore “inappropriate.” Aplt. Juris. Br. at
12–13. This argument again amounts to little more than a claim of error,
which again cannot alone confer jurisdiction. And that claimed error will
not be rendered unreviewable, as Kirsten asserts, by requiring her to await
final judgment to appeal. If Blue Shield exceeds the appropriate scope of
7 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 8
remand, Kirsten may raise that issue before the district court in the first
instance. If the district court nonetheless awards benefits based on a record
compiled in excess of an appropriate remand, Kirsten may seek our review
of that final judgment. We note, however, that contrary to Kirsten’s
argument that the district court’s remand order lacks appropriate limits on
Blue Shield’s discretion, the district court set forth precisely the procedural
guardrails that Kirsten requested and which this court requires. David P.,
77 F.4th at 1315–16.
Finally, to the extent that Kirsten invokes the doctrine of so-called
practical finality, we decline to apply it here. We have sometimes suggested
that as with orders remanding matters to an administrative agency, we can
review remand orders in the ERISA context when “immediate review” is
necessary to address “important legal questions which a remand may make
‘effectively unreviewable.’” Graham v. Hartford Life & Accident Ins. Co.,
501 F.3d 1153, 1157–58 (10th Cir. 2007) (quoting Rekstad, 238 F.3d at
1262). We have simultaneously and repeatedly observed, however, that this
doctrine has limited force in the ERISA context, should be narrowly
construed, and has rarely (if ever) been successfully applied to an ERISA
remand order in this circuit. Albright, 59 F.3d at 1093–94; Rekstad, 238
F.3d at 1262; Graham, 501 F.3d at 1158. Whatever life still sustains this
doctrine, it can provide Kirsten’s appeal with no succor. Kirsten identifies
8 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 9
no issue rendered “effectively unreviewable” by requiring her to await a
final award of benefits. Graham, 501 F.3d at 1158 (quoting Rekstad, 238
F.3d at 1262).
III
At the close of her jurisdictional brief, the appellant asks that if we
dismiss the appeal, we also provide additional clarification as to “when
Plaintiff-Appellant should file a notice of appeal.” Aplt. Juris. Br. at 23. We
acknowledge that the district court’s entry of judgment may have invited
the appellant’s confusion and clarification request.
To clarify, we approvingly observe the decisions and guidance of other
circuit courts that have considered this question. “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.” Petralia v.
AT&T Global Information Solutions Co., 114 F.3d 352, 354 (1st Cir. 1997);
see also Mead v. Reliastar Life Ins. Co., 768 F.3d 102, 113 (2d Cir. 2014);
Card v. Principal Life Insurance Company, 17 F.4th 620, 625 (6th Cir. 2021)
(stating that “the district court retains jurisdiction over the case while the
administrator reassesses its benefits decision”); Stevens v. Santander
Holdings USA Inc., 799 F.3d 290, 299 (3d Cir. 2015) (stating that the
9 Appellate Case: 25-4029 Document: 70-1 Date Filed: 05/21/2026 Page: 10
appellate court’s dismissal of a remand order wouldn’t prevent a party from
appealing later by reopening the district court case and appealing the
district court’s subsequent decision).
Because the district court retains jurisdiction over the case during the
remand process, the entry of judgment and closure of the case on the docket
does not prevent further proceedings – hence the non-finality of the remand
order and our decision to dismiss this appeal. After the remand process is
completed, Kirsten may by motion seek judicial review in the district court
in the first instance. Then, once the district court disposes of any post-
remand motion(s) filed by the parties in a manner that leaves no room for
further proceedings, a party may appeal to this court.
Appeal Dismissed.
Entered for the Court
Richard E.N. Federico Circuit Judge