Kistler

concurring in part and dissenting in part.

I concur in the memorandum disposition of the court, except that I respectfully dissent with respect to the decision as to attorney’s fees. I agree that we review a district court’s decision not to award attorney’s fees for abuse of discretion.

With regard to attorney’s fees in the ERISA context, “[a]s a general rule, ERISA employee plaintiffs should be entitled to a reasonable attorney’s fee if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir.1984) (quotations omitted).

The district court vindicated Kistler’s right to have MetLife discharge its fiduciary duties properly. Accordingly, Kistler is entitled to interim attorney’s fees.

McClure v. Life Ins. Co. of North America, 84 F.3d 1129 , 1136 (9th Cir.1996), relied upon by the district court, does not apply in this case. Although Kistler did not establish her rights to benefits, she did demonstrate that MetLife violated ERISA. Therefore, Kistler would be entitled to an award of attorney’s fees unless some “special circumstances would make an award…

MEMORANDUM **

Penny Kistler (“Kistler”) appeals the district court’s order remanding her claim to MetLife and the denial of attorney’s fees. American Financial Group Long Term Disability Plan appeals the district court’s determination that its plan administrator, MetLife, abused its discretion when it denied Kistler’s benefits, and the remand to MetLife to consider the evidence it had about Kistler’s claim that she suffers from Hashimoto’s Thyroiditis. We have jurisdiction over this appeal. See Hensley v. Northwest Permanente P.C. Retirement Plan & Trust, 258 F.3d 986 (9th Cir.2001); Snow v. Standard Ins. Co., 87 F.3d 327, 331-32 (9th Cir.1996). We review the determination of the plan administrator to determine whether the decision was an abuse of discretion. Atwood v. Newmont Gold Co. Inc., 45 F.3d 1317, 1323-24 (9th Cir.1995).

Department of Labor regulations specifically state that the plan administrator must consider the evidence presented by the parties before reaching its decision. 29 C.F.R. § 2560.503 -l(b)(l) (incorporating section (h) into all reviews, therefore the review must “take[] into account all comments, documents, records, and other information submitted by the…