* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 4 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LAWRENCE A. LLOYD, JR.,

Plaintiff-Appellant,

v.

GENERAL MOTORS HOURLYRATE EMPLOYEES PENSION

PLAN; GENERAL MOTORS

CORPORATION, a corporation in the

State of Delaware; GENERAL

MOTORS LIFE AND DISABILITY

BENEFITS PROGRAM,

Defendants-Appellees.

No. 00-5148

(D.C. No. 98-CV-87-H)

(N.D. Okla.)

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
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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 HourlyRate 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,
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.

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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
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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