                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                               OCT 28 2011

                                                                          MOLLY C. DWYER, CLERK
SUSAN RENE JONES,                               No. 10-16713               U.S. COURT OF APPEALS



              Plaintiff - Appellant,            D.C. No. 5:08-cv-03971-JW

  v.
                                                MEMORANDUM*
METROPOLITAN LIFE INSURANCE
COMPANY; MERCK & CO., INC., LTD
Plan for NonUnion Employees; MERCK
& CO., INC., ADMINISTRATOR FOR
MERCK & CO., INC. LTD PLAN FOR
NON UNION EMPLOYEES,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   James Ware, Chief District Judge, Presiding

                           Submitted October 26, 2011**
                             San Francisco, California




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
          The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Before: GRABER and IKUTA, Circuit Judges, and KAPLAN,*** Senior District
        Judge.

      Plaintiff Susan Rene Jones appeals the district court’s dismissal of her

claims under the Employee Retirement Income Security Act of 1974 ("ERISA").

We affirm in part, vacate in part, and remand with instructions.

      1. The district court erred by dismissing Plaintiff’s claim concerning the

amount of long-term disability benefits, including the question whether an offset

should be applied and any other questions related to the amount of such benefits.

See Saffle v. Sierra Pac. Power Co. Bargaining Unit, 85 F.3d 455, 461 (9th Cir.

1996) (holding that where, as here, the Plan grants discretion to the administrator

and the administrator "has not yet had the opportunity of applying the Plan,

properly construed, . . . [i]t should be up to the administrator, not the courts, to

make that call in the first instance"). Plaintiff sought to recover the long-term

disability benefits due her under the terms of the Plan. She had exhausted the

issues related to that remedy, and her claim was not made moot by Metropolitan

Life Insurance Company’s ("MetLife’s") determination that she was due some

benefits under the Plan, but they were subject to an offset. See Vaught v.

Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 630 (9th Cir. 2008)


        ***
           The Honorable Lewis A. Kaplan, Senior District Judge for the United
States District Court for the Southern District of New York, sitting by designation.
                                            2
(holding that remedy-exhaustion is required, but issue-exhaustion is not required).

We vacate the district court’s dismissal of this claim and remand with instructions

that the district court remand this claim to the administrator.

       2. By contrast, the district court properly held that Plaintiff’s claims

concerning benefits other than long-term disability benefits were barred by

Plaintiff’s failure to exhaust. See id. at 626 (discussing the exhaustion

requirement). We affirm the district court’s dismissal, for failure to exhaust, of

Plaintiff’s claims concerning ancillary benefits (medical, dental, and life insurance,

and COBRA premiums) and reimbursement for independent medical

examinations.

       3. The district court correctly denied Plaintiff’s claim for a prospective

injunction. The district court did not clearly err in finding that there is no

"admissible evidence of an imminent danger that the Plan will terminate Plaintiff’s

LTD benefit arbitrarily or in bad faith." See Fier v. Unum Life Ins. Co. of Am.,

629 F.3d 1095, 1097 (9th Cir. 2011) (per curiam) (holding that we review the

district court’s factual findings for clear error).

       4. The district court erred by requiring each party to bear its own fees before

the 14-day time for filing a fee motion expired, at least where Defendant MetLife

earlier had agreed that fees were owed to Plaintiff. Fed. R. Civ. P. 54(d)(2). We


                                             3
vacate the district court’s denial of fees and remand with instructions to permit

Plaintiff to file a fee motion within 14 days of issuance of the mandate.

         5. We have reviewed all of Plaintiff’s other arguments, and we find no other

error.

         AFFIRMED in part, VACATED in part, and REMANDED with

instructions. Costs on appeal awarded to Plaintiff-Appellant.




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