* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. Plaintiff-appellant Lawrence A. Lloyd, Jr., sued Ge neral Motors HourlyRate Employees Pension Plan (Pension Plan), General Motors Life and Disability Benefits Program (Disability Program) and General M otors Corporation claiming that defendants wrongfully denied him benefits unde r the Pension Plan and the Disability Program. Defendants filed a counterclai m to recover disability benefit overpayments and eventually moved for summary judgm ent. After a hearing, the district court orally granted defendant’s summary judgment motion based on Mr. Lloyd’s failure to exh aust administrative remedies and further found Mr. Lloyd liable for the amount o f overpayment demanded in the counterclaim. Mr. Lloyd appeals, and we affirm

. Mr. Lloyd’s arguments to this court essentially fal l 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 reve als 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 n ot use the ERISA laws in

this case.” Appellant’s Br. at 2. We find no suchstatement in the record but do note that the case was docketed in the district cou rt as an ERISA matter and treated as such throughout.

-3- 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 di strict court: he has not exhausted the administrative remedies open to him. “AlthoughERISA contains no explicit exhaustion requirement, we have held that exhaustio n of administrative (i.e., company or plan-provided) remedies is an implicit p rerequisite 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 arg ument to the district court. Turning to the judgment against Mr. Lloyd on defend ants’ counterclaim, we note that the trial judge warned Mr. Lloyd of the r isk that he would be held liable-4-

for the amount of the overpayments. When Mr. Lloydrefused to settle, the result was a judgment with which we find no error. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge