                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              June 21, 2006
                         FOR THE FIFTH CIRCUIT
                        ______________________           Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-20088
                        ______________________


HALLIBURTON COMPANY BENEFITS COMMITTEE, in its capacity as plan
administrator of the Halliburton Energy Services, Inc. Welfare
Benefits Plan, including its constituent benefit program, the
Dresser Retiree Life and Medical Program;

                Plaintiff - Appellant

HALLIBURTON CO; HALLIBURTON ENERGY SERVICES INC. WELFARE BENEFITS
PLAN
               Third Party Defendants - Counter Defendants -
               Appellants

     v.

JAMES B GRAVES; ET AL

                Defendants

JAMES GRAVES; PHIL GRIFFIN; PAUL M BRYANT, individually, and as
representatives of a requested class of all similarly situated
persons

                Defendants - Third Party Plaintiffs - Counter
                Claimants - Appellees



          Appeal from the United States District Court
           for the Southern District of Texas, Houston
                         No. 4:04-CV-280


Before KING, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
     Although neither party made anything other than a brief

reference to our jurisdiction to hear this appeal, we must

address it.   See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737,

740 (1976) (noting that it is incumbent upon a court to examine

sua sponte the basis of its jurisdiction whenever a question

arises as to its existence).    We requested and received

supplemental letter briefs from the parties addressing our

jurisdiction, and after carefully reviewing the letter briefs and

the record, we DISMISS this appeal for lack of jurisdiction.

     Appellants Halliburton Company Benefits Committee,

Halliburton Company, and Halliburton Energy Services, Inc.

Welfare Benefits Plan (collectively, “Halliburton”) initiated

this declaratory judgment action, seeking a declaration that: (1)

its November 2003 amendments to the Dresser Retiree Medical

Program (“Dresser Plan”) are permissible and do not violate the

terms or provisions of the Halliburton Plan, the Merger Agreement

between Halliburton and Dresser Industries, Inc. (“Merger

Agreement”), or the Employee Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. §§ 1001-1461 (2000); and (2) the Merger

Agreement does not limit Halliburton’s right to amend or

terminate the Dresser Plan.    R. at 294.   Appellees James Graves,

Phil Griffin, and Paul Bryant, individually and as

representatives of a requested class of similarly situated

persons (collectively, the “Retirees”), counterclaimed, seeking:

(1) declaratory and injunctive relief prohibiting modifications

                                  2
to the Dresser Plan to the extent such modifications are

inconsistent with the medical benefit plans provided to similarly

situated active Halliburton employees and prohibiting the

implementation of the November 2003 amendments to the Dresser

Plan; (2) declaratory and injunctive relief prohibiting any

modification of the terms and benefits of certain protected

programs1 in a manner contrary to the terms of the Merger

Agreement; (3) actual, consequential, and incidental damages; and

(4) attorneys’ fees and expenses.    R. at 146.

      The parties filed cross-motions for summary judgment.

Halliburton’s motion for summary judgment sought (1) a

declaration that the Merger Agreement did not limit its right to

amend or terminate the Dresser Plan, (2) a declaration on the

meaning of sections 7.09(g) and 10.07 of the Merger Agreement,

and (3) dismissal of the Retirees’ counterclaims with prejudice.

R. at 932.   The Retirees’ motion for partial summary judgment

requested that the court find as a matter of law that the Merger

Agreement requires Halliburton to maintain the Dresser Plan in

accordance with section 7.09 of the Merger Agreement.    R. at 879-

80.

      On December 20, 2004, the district court granted partial


      1
        The protected programs include: “pension equalizer”
contributions to the Dresser Retirement Savings Plan; the Dresser
Executive Deferred Compensation Plan; the Dresser Executive Life
Insurance Program; and the Dresser Supplemental Executive
Retirement Plan. R. at 151.

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summary judgment in favor of the Retirees, ordering that

Halliburton must maintain the Dresser Plan for eligible

participants and may adjust benefits in that plan only if it

makes identical changes to benefits for similarly situated active

Halliburton employees.   The district court made no mention of the

Retirees’ counterclaims for damages or attorneys’ fees or their

claims relating to other benefits.   On December 23, 2004, the

district court entered a separate order entitled “final

judgment,” which stated that “[t]he partial judgment dated

December 20, 2004, is severed and made final.”   R. at 1789.

Although the district court stated that its partial summary

judgment was severed and made final, it did not indicate which

claims, if any, it intended to sever.

     Ordinarily, a district court’s grant of partial summary

judgment is a non-appealable, interlocutory order.   See Liberty

Mut. Ins. Co., 424 U.S. at 744 (stating that grants of partial

summary judgment limited to issues of liability “are by their

terms interlocutory” and “where assessment of damages or awarding

of other relief remains to be resolved have never been considered

to be ‘final’ within the meaning of 28 U.S.C. § 1291”). FED. R.

CIV. P. 21, however, provides that “[a]ny claim against a party

may be severed and proceeded with separately.”   As this court has

explained,

     [s]everance under Rule 21 creates two separate actions or
     suits where previously there was but one. Where a single
     claim is severed out of a suit, it proceeds as a

                                 4
     discrete, independent action, and a court may render a
     final, appealable judgment in either one of the resulting
     two actions notwithstanding the continued existence of
     unresolved claims in the other.

Allied Elevator, Inc. v. E. Tex. State Bank, 965 F.2d 34, 36 (5th

Cir. 1992) (quoting United States v. O’Neil, 709 F.2d 361, 368

(5th Cir. 1983)).

     Halliburton argues that the district court severed its

declaratory judgment action pursuant to Rule 21, thus creating a

final judgment appealable under § 1291.    According to

Halliburton, our decisions in O’Neil, 709 F.2d 361, and Allied

Elevator, 965 F.2d 34, indicate that no formalities for an order

of severance are required so long as the intent to sever can be

reasonably inferred from the district court’s order.

     We cannot accept Halliburton’s theory of appellate

jurisdiction for at least two reasons.    First, we do not think

that the district court’s partial summary judgment order disposed

of any particular claim, as required by Rule 21.    See FED. R. CIV.

P. 21 (“Any claim against a party may be severed and proceeded

with separately.”) (emphasis added).    Although Halliburton

contends that the district court’s order disposed of its

declaratory judgment claim in its entirety, we read the district

court’s order as deciding a threshold legal issue common to the

claims of both parties, without distinguishing among the parties’

specific claims.    Nowhere in the district court’s order or

subsequent “final judgment” does the district court purport to


                                  5
dispose of or sever Halliburton’s declaratory judgment claim.

See Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d

81, 84 (5th Cir. 1987) (stating that “[a]n entire claim may be

severed under Rule 21”) (emphasis added).

     A close examination of the parties’ pleadings and motions

for summary judgment confirms our conclusion.   Halliburton’s

motion for summary judgment did not request a final judgment on

its declaratory judgment claim.   Rather, it requested a ruling on

one of its two pleaded grounds for declaratory relief.       Compare

R. at 294 (requesting two declarations in its complaint), with

id. at 932, 949 (requesting summary judgment on one of its two

pleaded grounds for declaratory relief).    Similarly, the

Retirees’ motion for partial summary judgment did not refer to,

much less request the district court to resolve, Halliburton’s

declaratory judgment claim.   Instead, the Retirees requested that

the district court resolve a “threshold contractual question” and

find as a matter of law that the Merger Agreement requires

Halliburton to maintain the Dresser Plan in accordance with

section 7.09 of the Merger Agreement.   R. at 899, 879.   This is

precisely what the district court purported to do in its partial

summary judgment order and subsequent “final judgment.”      See R.

at 1782, 1789.

     Second, our case law requires that the district court

clearly state its intention to sever a claim, and we cannot

conclude that the district court intended to do so here.       See

                                  6
O’Neil, 709 F.2d at 368; Allied Elevator, 965 F.2d at 36.     Unlike

the orders at issue in O’Neil and Allied Elevator, the district

court’s order here did not use clear and unequivocal language

indicating an intent to sever a specific claim or effectuate a

Rule 21 severance.     Compare R. at 1789 (district court’s final

judgment stating that “[t]he partial judgment dated December 20,

2004, is severed and made final” without indicating any specific

claim to be severed), with O’Neil, 709 F.2d at 366 (concluding

that the district court intended a Rule 21 severance where its

judgment stated that “[t]he defendants’ counterclaim against the

plaintiff is severed from the cause of action alleged by

plaintiff and will be tried separately and at a later date”), and

Allied Elevator, 965 F.2d at 36 (determining that the district

court “clearly intended” to sever the judgment on the

counterclaim where the district court “order[ed] that judgment on

the counterclaim ‘is hereby severed, for which let execution

issue’”).   Based on the district court’s order and subsequent

order entitled “final judgment,” we conclude that the district

court did not clearly state its intention to sever any specific

claim under Rule 21.    Accordingly, the district court’s final

judgment is not “final” within the meaning of § 1291, and we lack

jurisdiction to decide the merits of this interlocutory order.

     Given that the parties desire immediate appellate review of

the legal issue in the district court’s partial summary judgment

order, we suggest that one or both of the parties move the

                                   7
district court to amend its order to include the 28 U.S.C.

§ 1292(b) certification language, pursuant to FED. R. APP. P.

5(a)(3).   If the district judge enters such an order by July 3,

2006, and if a timely request for permissive appeal is filed with

this court within ten days of such order, as required by

§ 1292(b) and FED. R. APP. P. 5(a), the resulting new appeal will

be assigned a new number and will be referred to this panel.    The

existing appellate briefs will serve as the briefs for the new

appeal, obviating the need for rebriefing.2

     APPEAL DISMISSED.




     2
        Under the circumstances, the new appeal is, in our view,
an appeal contemplated by Halliburton’s stand still agreement set
out in the letter of its counsel dated December 22, 2004. R. at
1785.

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