                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 23 2016

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



                            FOR THE NINTH CIRCUIT


THERESA LEONARD,                                 No. 14-55049

              Plaintiff - Appellant,             D.C. No. 2:12-cv-10003-SVW-SS

 v.
                                                 MEMORANDUM*
METLIFE INSURANCE COMPANY,

              Defendant - Appellee.



THERESA LEONARD,                                 No. 14-55141

              Plaintiff - Appellee,              D.C. No. 2:12-cv-10003-SVW-SS

 v.

METLIFE INSURANCE COMPANY,

              Defendant - Appellant.


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

                       Argued and Submitted March 11, 2016
                               Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT, MURGUIA, and OWENS, Circuit Judges.

      In No. 14-55049, Plaintiff Theresa Leonard appeals from the district court’s

judgment entered against her in an action for disability benefits brought under the

Employee Retirement Income Security Act of 1974 (ERISA). In No. 14-55141,

Defendant MetLife Insurance Company (MetLife) cross-appeals from the district

court’s holding that Plaintiff’s action was not barred by the statute of limitations.

As the parties are familiar with the facts, we do not recount them here. We affirm

in No. 14-55049, and we dismiss MetLife’s cross-appeal in No. 14-55141.

      1.     We have jurisdiction over Plaintiff’s appeal under 28 U.S.C. § 1291,

and affirm the district court’s judgment entered against Plaintiff. The district court

properly concluded that Plaintiff was required to exhaust her administrative

remedies before bringing this action. Although not specifically mandated by

ERISA, this court requires an ERISA plaintiff to avail “herself of a plan’s own

internal review procedures before bringing suit in federal court.” Vaught v.

Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008)

(quoting Diaz v. United Agric. Emp. Welfare Plan & Tr., 50 F.3d 1478, 1483 (9th

Cir. 1995)). A plaintiff can forgo this exhaustion requirement, however, when

exhausting administrative remedies would be futile or a plan does not establish or




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follow claims procedures as required by ERISA. See id. at 626-27. Here, Plaintiff

failed to show that either exception applied.

      First, Plaintiff failed to show that appealing MetLife’s determination through

the process outlined in the plan was “demonstrably doomed to fail.” Diaz, 50 F.3d

at 1485. Plaintiff’s argument that appealing would have been futile because

MetLife was bent on denying her benefits is belied by the record. MetLife had

previously reversed a claims determination when Plaintiff followed the appeals

process outlined in the plan. Furthermore, the record shows that MetLife made

several attempts to collect additional information to determine whether Plaintiff

qualified for benefits during the Any Occupation Period. Plaintiff also argues that

exhausting her administrative remedies would have been futile because MetLife

had all of the information that it needed. As MetLife explained, however, the

definition of “disabled” changed during the Any Occupation Period and MetLife

needed updated medical records. Even assuming that MetLife had all of the

information it needed, that does not excuse Plaintiff from failing to appeal based

on the assumption that an appeal would have been futile, especially in light of

MetLife’s previous reversal of its claim determination.

      Second, Plaintiff failed to show that MetLife’s claim procedures violated

ERISA. Specifically, the record does not support Plaintiff’s contention that


                                          3
MetLife’s denial letter failed to provide a basis for the denial. MetLife’s letter

outlined its reasoning for denying her benefits under the Any Occupation Period.

Furthermore, Plaintiff fails to support her argument with persuasive authority that

she is entitled to this exception because MetLife failed to consult with a vocational

expert before making its claim determination.

      2.     Defendant brings a cross-appeal to challenge the district court’s

holding that Plaintiff’s action was not barred by the applicable statute of

limitations. However, because Defendant’s cross appeal challenges a ruling, and

not a judgment, we lack jurisdiction to hear it. Accordingly, we dismiss the cross-

appeal in No. 14-55141.

      No. 14-55049: AFFIRMED.

      No. 14-55141: DISMISSED.




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