                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         April 14, 2006
                            FOR THE TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

    CAROLYN SUE BENSON,

                Plaintiff-Appellant,

    v.                                                   No. 05-6220
                                                  (D.C. No. 02-CV-282-HE)
    BRIDGESTONE/FIRESTONE, INC.                         (W.D. Okla.)
    LONG-TERM DISABILITY
    BENEFITS PLAN FOR SALARIED
    EMPLOYEES EFFECTIVE
    FEBRUARY 1, 1987,

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO, EBEL, and MURPHY, Circuit Judges.



         Carolyn Sue Benson appeals from a district court order denying her motion

to vacate an unfavorable arbitration decision on her claim against



*
  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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Bridgestone/Firestone, Inc. Long-Term Disability Benefits Plan for Salaried

Employees Effective February 1, 1987 (“Plan”). For substantially the same

reasons as the district court, we AFFIRM.

      The Plan granted long-term disability benefits for an initial two-year period

to Benson, a former employee of Bridgestone/Firestone North American Tire

L.L.C (“Bridgestone”). After two years, however, Bridgestone determined that

Benson was no longer entitled to benefits. Bridgestone sent Benson a letter

advising her of its decision and informing her that, under the terms of the Plan,

she had the right to appeal for reinstatement of benefits within sixty days from the

date of the letter. Benson’s letter of appeal was received fifty-two days after the

sixty-day period ended. Bridgestone declined to consider her untimely appeal.

      Benson, acting through an attorney, then brought an action in federal court

under the Employee Retirement Income Security Act of 1974, (“ERISA”) 29

U.S.C. §§ 1001-1461. Bridgestone filed a motion to dismiss or, in the alternative,

to stay proceedings and compel arbitration as contemplated by the terms of the

Plan. The district court entered an order staying the case pending completion of

arbitration.

      In the arbitration proceedings that followed, the designated arbitrator was to

“apply the substantive law which would be applied by a United States District

Court sitting at the place of the hearing,” i.e., the Western District of Oklahoma.


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Bridgestone requested summary judgment on the ground that Benson’s untimely

appeal meant that she had failed to exhaust administrative remedies, normally a

prerequisite for judicial relief under ERISA. See McGraw v. Prudential Ins. Co.

of Am., 137 F.3d 1253, 1263 (10th Cir. 1998). Benson admitted that her appeal

was untimely, but asserted that Bridgestone had waived the exhaustion

requirement by failing to raise this defense in its initial response. She does not

assert that resorting to administrative remedies would have been futile, or that the

administrative remedy provided was inadequate. See id.

      The arbitrator considered and rejected Benson’s argument, noting that under

Tenth Circuit law, absent unfair surprise or prejudice to the plaintiff, a defendant’s

affirmative defense is not waived when it is first raised in a pre-trial dispositive

motion, as long as it is raised well in advance of trial. See Ball Corp. v. Xidex

Corp., 967 F.2d 1440, 1443-44 (10th Cir. 1992) (holding that the purposes of

notice pleading requirements are served if plaintiff is notified of the nature of a

defense well in advance of trial). Here, Bridgestone had raised the defense well

before the discovery phase of the arbitration proceeding and mediation. Because

Benson had ample notice of the Plan’s contention that she had failed to timely

exhaust her administrative remedies, the arbitrator determined that the defense was

not waived. She therefore granted the Plan’s summary judgment motion.




                                          -3-
      Benson returned to federal court with a motion to vacate, arguing that the

arbitrator’s order resulted from an error of law. Judicial review of an arbitration

decision is extremely limited and “has been described as among the narrowest

known to law.” Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., 430

F.3d 1269, 1275 (10th Cir. 2005) (quotation omitted). A district court may vacate

an award for “manifest disregard of the law” but not for “[m]erely erroneous

interpretations or applications of law.” Id. (quotation omitted). A manifest

disregard of the law is found only if the record demonstrates that arbitrators knew

the law and explicitly disregarded it. Id. Under that standard, the district court

determined that there was no basis for setting aside the arbitrator’s decision.

      Benson appealed. In her pro se brief, Benson again admits that her letter

appealing the Plan’s denial of benefits was late. She now argues, however, that

the delay was attributable to her lawyer’s negligence and that she should be given

another opportunity to prove her case.

      When assessing a district court’s decision to uphold an arbitration award, we

review the district court’s findings of fact for clear error and questions of law de

novo. Id. We see no error in the factual and legal determinations underlying the

district court’s denial of the motion. Further, we decline to reach Benson’s

attorney-negligence argument, which is an entirely separate matter. See Hill v.

Kan. Gas Serv. Co., 323 F.3d 858, 866 (10th Cir. 2003) (stating that this court


                                          -4-
generally does not consider arguments raised for the first time on appeal). Given

the highly deferential standard of review applicable to this case, it would be

inappropriate for us to entertain a claim not presented to either the arbitrator or

the district court. 1

       Benson is not entitled to relief from this court. The judgment of the district

court is AFFIRMED.

                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




1
  Even if we were to consider Benson’s argument, we would reach the same
result. In a factually similar case, the Fourth Circuit determined that attorney
negligence did not justify equitable tolling where a recipient of long-term
disability benefits under an ERISA benefit plan failed to file a timely appeal of
the plan’s decision to terminate her benefits. Gayle v. United Parcel Serv., Inc.,
401 F.3d 222, 226-27 (4th Cir. 2005). Gayle’s result is consistent with
established Tenth Circuit authority. As a general rule, clients are “‘bound by
their counsels’ inaction,’” and “‘a civil plaintiff may be deprived of his claim if
he failed to see to it that his lawyer acted with dispatch in the prosecution of his
lawsuit.’” Gripe v. City of Enid, 312 F.3d 1184, 1189 (10th Cir. 2002) (quoting
Link v. Wabash R.R. Co., 370 U.S. 626, 634 n.10 (1962)).

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