                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 19 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ANA MARTINEZ,                                    No. 10-56370

              Plaintiff-counter-defendant -      D.C. No. 2:09-cv-01222-SVW-
Appellant,                                       PLA

  v.
                                                 MEMORANDUM*
THE BEVERLY HILLS HOTEL AND
BUNGALOWS EMPLOYEE BENEFIT
TRUST EMPLOYEE WELFARE PLAN,

              Defendant-counter-claimant -
Appellee,

U.S. BANCORP, a Delaware corporation,
DBA U.S. Bank as trustee of the Steve
Martinez Special Needs Trust,

              Counter-defendant -
Appellee.



ANA MARTINEZ,                                    No. 11-57221

              Plaintiff - Appellant,             D.C. No. 2:11-cv-02304-SVW-
                                                 PLA
  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
THE BEVERLY HILLS HOTEL AND
BUNGALOWS EMPLOYEE BENEFIT
TRUST EMPLOYEE WELFARE PLAN,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                      Argued and Submitted August 5, 2013
                              Pasadena, California

Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM,
Senior District Judge.**

      Ana Martinez appeals from the district court’s order denying attorney’s fees

in Case No. 2:09-cv-01222-SVW-PLA (Martinez I) and the court’s order

upholding Defendant The Beverly Hills Hotel and Bungalows Employee Benefit

Trust Employee Welfare Plan’s (the Plan administrator) decision to deny her

benefits in Case No. 2:11-cv-02304-SVW-PLA (Martinez II). We have

jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

      As an initial matter, Martinez’s decision not to immediately appeal the

district court’s decision to remand in Martinez I does not waive her present




       **
             The Honorable Miriam Goldman Cedarbaum, Senior District Judge
for the U.S. District Court for the Southern District of New York, sitting by
designation.
challenge. That order was not appealable at the time. Banuelos v. Constr.

Laborers’ Trust Funds for S. Cal., 382 F.3d 897, 903 (9th Cir. 2004).

      The district court abused its discretion by remanding the matter to the Plan

administrator after correctly ruling that the Plan’s reasons for denying benefits

were invalid. No factual determinations remained to be made; the administrator

simply erred in denying Martinez benefits. The proper remedy under the

circumstances was to order the payment of benefits then and there. Canseco v.

Constr. Laborers Pension Trust for S. Cal., 93 F.3d 600, 609 (9th Cir. 1996). We

reverse and remand with directions to order the payment of benefits.

      As for Martinez’s application for attorney’s fees, she is now clearly the

prevailing party. We reverse and remand to the district court for consideration of

her application. See Hardt v. Reliance Std. Life Ins. Co., 560 U.S. 242 (2010).

      REVERSED AND REMANDED.
