                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 4 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LAWRENCE A. LLOYD, JR.,

                Plaintiff-Appellant,

    v.                                                   No. 00-5148
                                                    (D.C. No. 98-CV-87-H)
    GENERAL MOTORS HOURLY-                               (N.D. Okla.)
    RATE EMPLOYEES PENSION
    PLAN; GENERAL MOTORS
    CORPORATION, a corporation in the
    State of Delaware; GENERAL
    MOTORS LIFE AND DISABILITY
    BENEFITS PROGRAM,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before BALDOCK , PORFILIO , and BRORBY , 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      This order and judgment is not binding precedent, except under the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.
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-appellant Lawrence A. Lloyd, Jr., sued General Motors Hourly-

Rate Employees Pension Plan (Pension Plan), General Motors Life and Disability

Benefits Program (Disability Program) and General Motors Corporation claiming

that defendants wrongfully denied him benefits under the Pension Plan and the

Disability Program. Defendants filed a counterclaim to recover disability benefit

overpayments and eventually moved for summary judgment.

      After a hearing, the district court orally granted defendant’s summary

judgment motion based on Mr. Lloyd’s failure to exhaust administrative remedies

and further found Mr. Lloyd liable for the amount of overpayment demanded in

the counterclaim. Mr. Lloyd appeals, and we affirm.

      Mr. Lloyd’s arguments to this court essentially fall into two categories:

complaints about the conduct of the district court and arguments going to the

merits of his claims against defendants. With regard to the conduct of the district

court, we have reviewed the record with particular attention to the transcript of

the summary judgment hearing. That transcript reveals a judge who made every

effort to explain things to Mr. Lloyd and to allow Mr. Lloyd to participate in the

hearing. The court on two occasions recessed in hopes that the parties could

settle, warning Mr. Lloyd of his exposure from the counterclaim if he did not,


                                         -2-
explaining that the law and the facts were against him, and urging him to listen to

his former attorney. Far from finding any bias or misconduct on the part of the

judge, we are impressed with the patience and care with which the court

approached this case.

      As to Mr. Lloyd’s substantive arguments, he cannot prevail here for

precisely the reason he failed to prevail in the district court: he has not exhausted

the administrative remedies open to him. “Although ERISA contains no explicit

exhaustion requirement, we have held that exhaustion of administrative (i.e.,

company or plan-provided) remedies is an implicit prerequisite to seeking judicial

relief.” Whitehead v. Okla. Gas & Elec. Co.        , 187 F.3d 1184, 1190 (10th Cir.

1999) (quotation omitted);     McGraw v. Prudential Ins. Co. of Am.    , 137 F.3d 1253,

1263 (10th Cir. 1998).   1
                             In regard to Mr. Lloyd’s assertion that resort to

administrative remedies would have been futile, he points to no evidence in

support of this statement and did not make that argument to the district court.

      Turning to the judgment against Mr. Lloyd on defendants’ counterclaim, we

note that the trial judge warned Mr. Lloyd of the risk that he would be held liable




1
       Mr. Lloyd claims the district court “said I could not use the ERISA laws in
this case.” Appellant’s Br. at 2. We find no such statement in the record but do
note that the case was docketed in the district court as an ERISA matter and
treated as such throughout.


                                             -3-
for the amount of the overpayments. When Mr. Lloyd refused to settle, the result

was a judgment with which we find no error.

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

of Oklahoma is AFFIRMED.



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




                                        -4-
