October 17, 2025
A recent Eleventh Circuit decision opens up a route for overturning the appellate court’s strictest-in-the-nation precedent requiring administrative exhaustion of all claims brought under the Employee Retirement Income Security Act, attorneys say, given that two judges in a panel concurrence advocated for such action following en banc review.
A three-judge panel in a unanimous published opinion on Wednesday backed a lower court’s decision to toss a proposed class action ERISA suit against Inland Fresh Seafood Corp. of America Inc. and its executives alleging mismanagement of an employee stock ownership plan.
In an opinion written by U.S. District Judge Federico A. Moreno, sitting by designation from the Southern District of Florida, the panel said it was bound to affirm because workers hadn’t first administratively exhausted their claims, as required by the Eleventh Circuit’s strict rule set in 1985 in Mason v. Continental Group Inc. In that decision, the Eleventh Circuit rejected worker-side arguments that administrative exhaustion requirements didn’t apply to fiduciary breach claims under ERISA.
But a concurrence written by U.S. Circuit Judge Adalberto Jordan and joined by U.S. Circuit Judge Jill A. Pryor is grabbing attorneys’ attention because it advises the full Eleventh Circuit to take action that would ultimately undo that ruling, by repealing the circuit’s ERISA administrative exhaustion rule. In addition to a possible overturn of precedent by the en banc appellate court, practitioners predict the U.S. Supreme Court could eventually get involved.
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Kai Richter, of counsel at Cohen Milstein Sellers & Toll PLLC, said a move by the Eleventh Circuit to eliminate its ERISA administrative exhaustion rule “would bring the Eleventh Circuit back in line with circuit precedent elsewhere.”
Richter said he thought the most significant aspect of the decision was the en banc suggestion in the appellate judges’ concurrence.
“I think the real headline is that two of the three judges on the panel appeared to indicate that no administrative exhaustion requirement should apply in the Eleventh Circuit,” Richter said.
Read 11th Circ. Ruling Could Unravel Strict ERISA Exhaustion Rule.