                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 16 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DEBRA BREWSTER,

                Plaintiff-Appellant,

    v.                                                   No. 98-2226
                                                  (D.C. No. CIV-97-1596-JP)
    COOLEY ASSOCIATES /                                   (D. N.M.)
    COUNSELING AND CONSULTING
    SERVICES, LTD.; STANDARD
    INSURANCE COMPANY,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , EBEL , and BRISCOE , Circuit Judges.



         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.

         Plaintiff Debra Brewster appeals the district court’s award of summary


*
      This order and judgment is not binding precedent, except under the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.
judgment in favor of defendants on her claim that they violated her rights under

the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461 (ERISA).

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

       During her employment by defendant Cooley Associates, plaintiff was

a participant in a group long term disability insurance plan (Plan). Defendant

Cooley was the Plan administrator. Plaintiff and Cooley paid premiums to

defendant Standard Insurance Co., who provided the annuity funding source for

the Plan and was a Plan administrator and fiduciary. In 1992, while employed by

Cooley, plaintiff sustained injuries to her back. She applied for and received

long-term disability benefits under the Plan from January 2, 1992, until

November 15, 1994. Standard then informed plaintiff that her disability benefits

would cease because her physicians had reported that her physical condition had

improved to the point that she was no longer disabled under the Plan. Standard

later determined that she   was eligible for additional disability benefits for

a maximum of two additional years, based on a mental disorder. Plaintiff claimed

that the two-year time limit on her disability benefits violated the Plan.

       Plaintiff filed suit against these defendants on June 20, 1996, seeking

a preliminary and permanent injunction to enjoin defendants from discontinuing

her ERISA benefits.    See Brewster v. Cooley Assoc./Counseling & Consulting

Servs., Ltd. , No. 96-0888 (D.N.M. Dec. 2, 1996) (    Brewster I ). The district court,


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addressing the merits with the consent of the parties, denied plaintiff’s request for

an injunction because she did not meet the criteria for injunctive relief and held

that plaintiff was entitled to a review of her claim by the Plan administrator.

Plaintiff did not appeal   Brewster I . On January 16, 1997, plaintiff filed another

suit against defendants, claiming they had violated the Americans with

Disabilities Act by restricting her disability benefits to two years.     See Brewster

v. Cooley Assoc./Counseling & Consulting Servs., Ltd.          , No. 97-0058 (D.N.M.

Nov. 6, 1997) ( Brewster II ). The district court granted summary judgment to

defendants on the merits. Plaintiff did not appeal       Brewster II . Plaintiff then filed

the instant action on December 16, 1977, ( Brewster III ), alleging that defendants

violated her ERISA rights because they failed and refused to provide a review of

her claim by the Plan administrator and they breached their fiduciary duties.

Applying the doctrine of res judicata, the district court granted summary judgment

to defendants, based on its determination that plaintiff could have included the

ERISA claims raised here in her earlier litigation.

       The following four elements must be met to invoke res judicata: “(1) the

prior suit must have ended with a judgment on the merits; (2) the parties must be

identical or in privity; (3) the suit must be based on the same cause of action; and

(4) the plaintiff must have had a full and fair opportunity to litigate the claim in

the prior suit.”   Nwosun v. General Mills Restaurants, Inc.       , 124 F.3d 1255, 1257


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(10th Cir. 1997), cert. denied , 118 S. Ct. 1396 (1998). Plaintiff maintains that

res judicata does not apply because neither         Brewster I nor Brewster II included

her ERISA claims brought in      Brewster III and she has not had a full and fair

opportunity to litigate those claims.

       Plaintiff argues on appeal that she could not have filed       Brewster III until

she had exhausted her administrative remedies available through the Plan and that

she had exhausted those remedies when it became apparent that further efforts to

pursue Plan-provided remedies would be futile. “ERISA contains no explicit

exhaustion requirement although we have observed ‘exhaustion of administrative

(i.e., company- or plan-provided) remedies is an implicit prerequisite to seeking

judicial relief.’”   McGraw v. Prudential Ins. Co. of Am.       , 137 F.3d 1253, 1263

(10th Cir. 1998) (quoting    Held v. Manufacturers Hanover Leasing Corp.         , 912 F.2d

1197, 1206 (10th Cir. 1990)).

       Plaintiff failed to raise the issue of exhaustion of administrative remedies

to the district court. Generally, this court will not consider an issue on appeal

that was not raised below.    See Rademacher v. Colorado Ass’n of Soil

Conservation Dists. Med. Benefits Plan        , 11 F.3d 1567, 1572 (10th Cir. 1993). We

will not consider a new theory “that falls under the same general category as an

argument presented at trial or . . . a theory that was discussed in a vague and

ambiguous way” at trial.     Bancamerica Commercial Corp. v. Mosher Steel of


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Kan., Inc. , 100 F.3d 792, 798-99 (10th Cir.) (quotation omitted),   opinion amended

on other grounds , 103 F.3d 80 (10th Cir. 1996). The “general waiver rule is not

absolute, however, and we may depart from [it] in our discretion, particularly

when we are presented with a strictly legal question, the proper resolution of

which is beyond doubt or when manifest injustice would otherwise result.”

Sussman v. Patterson , 108 F.3d 1206, 1210 (10th Cir. 1997) (quotation omitted).

       In addressing whether a plaintiff has exhausted administrative remedies,

a district court has discretion to abandon exhaustion “under two limited

circumstances: first, when resort to administrative remedies would be futile;

or, second, when the remedy provided is inadequate.”       McGraw , 137 F.3d at 1263.

By failing to raise her exhaustion argument to the district court, plaintiff did not

afford that court an opportunity to exercise its discretion to determine whether

and when she had exhausted her administrative remedies. Similarly, the district

court was not requested to resolve the underlying fact issues, such as the

remedies, if any, provided by the Plan and whether resort to those remedies would

be futile. The existence of unresolved facts precludes this court from exercising

discretion to address this issue for the first time on appeal, even if there were

reasons to do so.   Accordingly, summary judgment was appropriate because

plaintiff “fail[ed] to make a showing sufficient to establish the existence of an

element essential to [her] case, and on which [she would] bear the burden of proof


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at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

       Plaintiff also argues that the district court erred in denying her request to

amend her complaint “seeking relief from judgments entered in [        Brewster I and

Brewster II ].” Appellant’s App. at 354 (Motion for Leave to File Second

Amended Complaint). Plaintiff has not demonstrated that the district court

abused its discretion in denying the motion.         See Bauchman ex rel. Bauchman v.

West High Sch. , 132 F.3d 542, 559 (10th Cir. 1997) (district court’s decision to

deny motion to amend as futile reviewed for abuse of discretion),       cert. denied ,

118 S. Ct. 2370 (1998). Therefore, she has not established reversible error.

       The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.



                                                          Entered for the Court



                                                          David M. Ebel
                                                          Circuit Judge




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