FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS               April 14, 2008

                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court


    DOROTHY LEWIS,

                Plaintiff-Appellant,

    v.                                                 No. 07-3288
                                                (D.C. No. 07-CV-4011-KGS)
    U.F.C.W. DISTRICT UNION LOCAL                        (D. Kan.)
    TWO AND EMPLOYERS PENSION
    FUND,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO and PORFILIO, Circuit Judges, BRORBY, Senior Circuit
Judge.



         Dorothy Lewis, appearing pro se and in forma pauperis, challenges the

district court’s entry of summary judgment in her action to recover additional

payments from her pension fund. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  I. Background

      Ms. Lewis worked, often part-time, as a food-store retail clerk from 1996

through 2005. In May 2005, she explored early-retirement options through her

union’s pension plan, which is maintained by defendant United Food and

Commercial Workers District Union Local Two and Employers Pension Fund.

The Plan Administrator supplied her with a copy of the Summary Plan

Description and an estimate of her projected monthly lifetime payments, based on

the benefit credits she earned while working.

      As explained in the Summary Plan Description, Ms. Lewis had two choices:

the Single Life Option providing for monthly lifetime payments and the Level

Income Option, which “coordinates [a] pension with [a] Social Security benefit,”

in order to “provide[] as closely as possible for a level lifetime pension.”

R., Doc. 8, Ex. 2, at 31. This option actuarially increases the amount of monthly

payments during the period after retirement and before eligibility for social

security old age insurance benefits. Plan payments are reduced, and possibly

terminated, as soon as social security benefits commence.

      In the fall of 2005, Ms. Lewis confirmed her choice of the Level Income

Option and indicated her agreement with payments of $518.38 per month until

December 2008, when her benefits would terminate. She began to question this

calculation in June 2006, however, based on the Social Security Administration’s

estimate of her monthly social security payment at $820 a month. The Plan

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Administrator’s response to Ms. Lewis’s letters was that the payment amount was

proper: her work credits did not qualify her for the full amount of her projected

monthly social security payments.

      Ms. Lewis remained convinced that she was entitled to a monthly amount

equal to her projected social security benefit, followed by additional pension

payments throughout her lifetime. Ms. Lewis brought her contentions directly to

federal court in spite of the Plan’s provision of a two-level claim and appeal

procedure, in which the Administrator decides claims and the Trustees decide any

appeals (as detailed in the Summary Plan Description provided to Ms. Lewis).

Proceeding pro se and in forma pauperis, Ms. Lewis filed a complaint seeking $10

million in actual damages to remedy defendant’s allegedly deceptive, misleading,

and fraudulent conduct.

      The parties filed cross motions for summary judgment. Defendant’s motion

was premised primarily on Ms. Lewis’s failure to exhaust administrative remedies

as required by the Employee Retirement Income Security Act (ERISA), 29 U.S.C.

§§ 1001-1461, and secondarily on a lack of evidentiary support. Ms. Lewis’s

motion repeated her theory of wrongdoing on the part of defendant. At the

completion of briefing, the district court granted defendant’s motion, ruling that

Ms. Lewis failed to satisfy the ERISA exhaustion rule. In entering judgment, the

court assessed costs of the action to Ms. Lewis.




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                                   II. Discussion

      Summary judgment “should be rendered if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). We review the district court’s ruling de novo,

viewing the evidence and drawing all reasonable inferences in the light most

favorable to the party opposing summary judgment. Stover v. Martinez, 

, 1070 (10th Cir. 2004). While we construe the filings of a pro se plaintiff

liberally, this court will not “construct a legal theory on a plaintiff’s behalf.”

Whitney v. New Mexico, 

, 1173-74 (10th Cir. 1997).

      Ms. Lewis’s claim is controlled by “ERISA, a ‘comprehensive and

reticulated statute’ govern[ing] employee benefit plans.” Jewell v. Life Ins. Co.

of N. Am., 

, 1308 (10th Cir. 2007) (quoting Nachman Corp. v.

Pension Benefit Guar. Corp., 

, 361 (1980)), petition for cert. filed,

(U.S. Feb. 19, 2008) (No. 07-1121). To ensure “national

uniformity in fiduciary standards for the administration of employee benefit

plans,” ERISA includes an “expansive preemption scheme.” Miller v.

Monumental Life Ins. Co., 

, 1249 (10th Cir. 2007). Ms. Lewis’s

common-law fraud claim is preempted because “the factual basis of [her] cause of

action involves an employee benefit plan.” Settles v. Golden Rule Ins. Co.,

, 509 (10th Cir. 1991).

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      Under ERISA, a plaintiff must exhaust her administrative remedies before

seeking judicial relief. See McGraw v. Prudential Ins. Co., 

, 1263

(10th Cir. 1998). This requirement “derives from the exhaustion doctrine

permeating all judicial review of administrative agency action, and aligns with

ERISA’s overall structure of placing primary responsibility for claim resolution

on fund trustees.” 

Any other procedure would permit

“premature judicial interference” and “would impede those internal processes

which result in a completed record of decision making for a court to review.” 

is necessary to keep from turning every ERISA action, literally,

into a federal case.” Whitehead v. Okla. Gas & Elec. Co., 

, 1190

(10th Cir. 1999) (quotation omitted). Generally, a district court may waive the

exhaustion requirement only “where resort to administrative remedies would be

clearly useless.” 

(internal quotation marks omitted).

      In summary-judgment proceedings, the district court carefully analyzed the

record and the applicable law. The court found that Ms. Lewis had not complied

with the Plan’s formal procedures and had not shown that compliance would have

been futile. Further, her letters to the United States Department of Labor and

contacts with the Internal Revenue Service did not fulfill the ERISA requirement

of seeking relief from Plan officials. The district court therefore granted

judgment in favor of defendant and, as a corollary, denied Ms. Lewis’s motion for

summary judgment.

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      We conclude that district court’s entry of summary judgment was proper.

Our determination is unaffected by Ms. Lewis’s challenges to the district court’s

decisions on the timeliness of defendant’s reply brief. Appellate review of this

type of decision is for an abuse of discretion. See, e.g., Hendry v. Schneider,

, 449 (10th Cir. 1997) (applying abuse of discretion standard to

determination of “good cause” for failure to timely serve defendant). And we

perceive no abuse of discretion in the district court’s determination that

defendant’s filing was timely.

      Ms. Lewis also asserts that, because she was indigent and proceeding in

forma pauperis pursuant to 28 U.S.C. § 1915, the district court erred in awarding

costs to defendant under Fed. R. Civ. P. 54(d)(1). “We review the district court’s

award of costs under both § 1915 and Rule 54(d) for an abuse of discretion.”

Treff v. Galetka, 

, 197 (10th Cir. 1996). Under the presumption

created by Rule 54, “the established rule is that costs are generally awarded to the

prevailing party.” Rodriguez v. Whiting Farms, Inc., 

, 1190

(10th 2004). “Allowing the commencement of a suit in forma pauperis . . . does

not preclude the court from assessing costs at the conclusion of the suit.”

(internal quotation marks and alteration omitted). In this




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particular case, the district court did not abuse its discretion in awarding costs to

defendant.

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court


                                                      Wade Brorby
                                                      Senior Circuit Judge




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