Rani Bolton v. Inland Fresh Seafood Corporation of America, Inc.

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10084

____________________

RANI BOLTON,

ALISON MERCKER,

JAMES ARMSTRONG,

BENJAMIN LYMAN,

individually and as representatives of a class of

participants and beneficiaries on behalf of the

Inland Fresh Seafood Corporation of America, Inc.

Employee Stock Ownership Plan,

MELISSA SUTER,

Plaintiffs-Appellants,

versus

INLAND FRESH SEAFOOD CORPORATION OF AMERICA,

INC.,

JOEL KNOX,

BILL DEMMOND,

CHRIS ROSENBERGER,

LES SCHNEIDER, et al.,

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2 Opinion of the Court 24-10084

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:22-cv-04602-LMM

____________________

Before JORDAN and JILL PRYOR, Circuit Judges, and MORENO,∗ Dis-

trict Judge.

MORENO, District Judge:

In 1985, our Circuit grafted an administrative exhaustion re-

quirement onto the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. § 1001 et seq. Since then, we have repeatedly

affirmed that exhaustion is a prerequisite for ERISA plaintiffs who

wish to seek judicial review in federal court. Our exhaustion re-

quirement applies across the spectrum of ERISA claims, for bene-

fits due under a retirement plan and for substantive violations of

ERISA.

The plaintiffs here filed suit without first exhausting their ad-

ministrative remedies. After reviewing the parties’ briefs and the

record, and with the benefit of oral argument, we agree with the

district court that dismissal was warranted because no valid excuse

relieves the plaintiffs of that obligation. Accordingly, we affirm the

dismissal and remand so that the district court can indicate whether

∗ The Honorable Federico A. Moreno, United States District Judge for the

Southern District of Florida, sitting by designation.

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24-10084 Opinion of the Court 3

the dismissal is without prejudice to allow the plaintiffs another op-

portunity to exhaust.

I. BACKGROUND

Inland Fresh Seafood Corporation of America, Inc., estab-

lished a pension plan to help its employees save for retirement. The

plan has two key features. It is a defined-contribution plan, which

means that the value of the participants’ retirement benefits hinges

on the market performance of the investments in their individual

retirement accounts. It is also an employee stock ownership plan,

a pension plan that invests primarily in the company’s own stock.

Over time, Inland Fresh contributes shares to participants’ individ-

ual accounts. The longer a participant is employed with Inland

Fresh, the more shares he receives. In the end, how much each

participant earns in retirement depends on how well Inland Fresh’s

stock performs on the market.

The initial transaction that created the Inland Fresh em-

ployee stock ownership plan took place on November 26, 2016.

The plan used the proceeds from a $92 million loan to purchase all

100,000 outstanding shares of Inland Fresh common stock from

four of the company’s directors and officers. On behalf of the plan

itself and a proposed class of the plan’s 578 participants, five former

Inland Fresh employees brought claims under ERISA § 502(a)(2)

and (a)(3) against Inland Fresh, the four officers and directors, the

plan’s trustee, and the plan’s committee. The plaintiffs alleged that

the defendants breached their fiduciary duties by causing the

plan—and therefore, its participants—to overpay by tens of

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4 Opinion of the Court 24-10084

millions of dollars for the Inland Fresh common stock. Specifically,

the plaintiffs claimed that the four directors and officers instructed

Inland Fresh executives to misrepresent the company’s sales projec-

tions and inventory so that they could obtain a higher valuation

and ultimately receive more money for their stock. As a result, the

participants’ benefits were allegedly worth less than they would

have been had the plan purchased the shares at a price commensu-

rate with their fair market value. The plaintiffs also alleged that the

trustee failed to conduct proper due diligence before settling on the

purchase price. The plaintiffs sought restoration of the plan’s

losses, disgorgement of the director and officers’ ill-gotten gains,

and other forms of equitable relief.

The plaintiffs acknowledged that the plan lays out adminis-

trative claims procedures. At the same time, the plaintiffs did not

allege that they exhausted these procedures before filing suit. In-

stead, they pleaded that ERISA plaintiffs are under no obligation to

affirmatively plead exhaustion, and they asked the district court for

leave to remove these allegations if it agreed. In any event, they

argued that they were excused from ever exhausting the plan’s in-

ternal procedures at all.

The defendants moved to dismiss. On exhaustion grounds,

the district court granted the defendants’ motions. The court con-

cluded that this Circuit mandates exhaustion before proceeding to

court, and the United States Supreme Court has not abrogated this

requirement. Since the plaintiffs failed to plead exhaustion and be-

cause the district court rejected each of the plaintiffs’ excuses for

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24-10084 Opinion of the Court 5

not exhausting, it dismissed the case. The court also denied the

plaintiffs’ request for a stay in lieu of dismissal so that they could

pursue an administrative claim. Importantly, though, the district

court did not clarify whether the dismissal was with or without

prejudice. On appeal, the plaintiffs challenge each of these deci-

sions.

II. STANDARDS OF REVIEW

The applicability of ERISA’s exhaustion requirement is re-

viewed de novo. Lanfear v. Home Depot, Inc., 536 F.3d 1217, 1221 (11th

Cir. 2008). The district court’s decision to dismiss for failure to

plead exhaustion is reviewed for abuse of discretion. Byrd v. Mac-

Papers, Inc., 961 F.2d 157, 160 (11th Cir. 1992) (citing Springer v. Wal-

Mart Assocs.’ Grp. Health Plan, 908 F.2d 897, 899 (11th Cir. 1990) and

Curry v. Cont. Fabricators Inc. Profit Sharing Plan, 891 F.2d 842, 846–

47 (11th Cir. 1990)). Whether the district court properly refused to

excuse the failure to exhaust is “highly discretionary” and reviewed

for “clear abuse of discretion.” Perrino v. S. Bell Tel. & Tel. Co., 209

F.3d 1309, 1315 (11th Cir. 2000) (emphasis in original) (citations

omitted). And a district court’s decision whether to stay the litiga-

tion pending the plaintiff’s exhaustion of administrative remedies

is reviewed for abuse of discretion. See Ortega Trujillo v. Conover &

Co. Commc’ns, Inc., 221 F.3d 1262, 1264 n.2 (11th Cir. 2000) (citing

CTI-Container Leasing Corp. v. Uiterwyk Corp., 685 F.2d 1284, 1288

(11th Cir. 1982)).

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6 Opinion of the Court 24-10084

III. DISCUSSION

A. ERISA Plaintiffs Must Exhaust Available Administrative

Remedies Before Filing Suit in Federal Court.

ERISA does not expressly contain an administrative exhaus-

tion requirement. But forty years ago, we implied one. See Mason

v. Cont’l Grp., Inc., 763 F.2d 1219, 1227 (11th Cir. 1985). In Mason v.

Continental Group, Inc., we grounded this decision in several “[c]om-

pelling” policy considerations:

Administrative claim-resolution procedures reduce

the number of frivolous lawsuits under ERISA, mini-

mize the cost of dispute resolution, enhance the

plan’s trustees’ ability to carry out their fiduciary du-

ties expertly and efficiently by preventing premature

judicial intervention in the decisionmaking process,

and allow prior fully considered actions by pension

plan trustees to assist courts if the dispute is eventu-

ally litigated.

Id. (citations omitted). We also reasoned that a pre-suit exhaustion

requirement is consistent with Congressional intent. Id. (citations

omitted).

Since Mason, we have reaffirmed our exhaustion require-

ment time and time again. See, e.g., Springer, 908 F.2d at 899; Perrino,

209 F.3d at 1315; Lanfear, 536 F.3d at 1223–24. “The law is clear in

this circuit that plaintiffs in ERISA actions must exhaust available

administrative remedies before suing in federal court.” Bickley v.

Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir. 2006) (quoting

Counts v. Am. Gen. Life & Accident Ins. Co., 111 F.3d 105, 108 (11th

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Cir. 1997)). And we have clarified that “we apply the exhaustion

requirement strictly,” with equal force to contractual claims arising

under a plan and claims for violations of ERISA itself. Perrino, 209

F.3d at 1316 n.6, 1318 (citations omitted).

All circuits require exhaustion in the ERISA context. Where

we diverge is in our application of the exhaustion requirement to

statutory violation claims. Our precedent is at odds with a large

chorus of our sister circuits which—though they require exhaus-

tion for benefits claims—do not require exhaustion for claims alleg-

ing violations of ERISA. See Zipf v. Am. Tel. & Tel. Co., 799 F.2d 889,

891–94 (3d Cir. 1986); Smith v. Sydnor, 184 F.3d 356, 363–65 (4th Cir.

1999); Galvan v. SBC Pension Benefit Plan, 204 F. App’x 335, 338–39

(5th Cir. 2006); Hitchcock v. Cumberland Univ. 403(b) DC Plan, 851 F.3d

552, 564 (6th Cir. 2017); Amaro v. Cont’l Can Co., 724 F.2d 747, 750–

52 (9th Cir. 1984); Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197,

1204–05 (10th Cir. 1990); Stephens v. Pension Benefit Guar. Corp., 755

F.3d 959, 965–66 (D.C. Cir. 2014).

The plaintiffs recognize that binding Eleventh Circuit prece-

dent requires exhaustion of their breach-of-fiduciary-duty claims,

but they urge us to abandon our precedent and apply the law of

these other circuits. We reject that call now, just as we have done

before. See, e.g., Bickley, 461 F.3d at 1328 n.6; Counts, 111 F.3d at 109.

Whatever we may feel about our exhaustion precedent does not

relieve us of our responsibility to apply it. After all, a prior pub-

lished panel decision “is controlling ‘unless and until it is overruled

or undermined to the point of abrogation by the Supreme Court

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8 Opinion of the Court 24-10084

or by this court sitting en banc.’” United States v. Files, 63 F.4th 920,

923 (11th Cir. 2023) (quoting United States v. Archer, 531 F.3d 1347,

1352 (11th Cir. 2008)). 1

The plaintiffs argue that several Supreme Court cases have

undermined our exhaustion precedents to the point that they can

no longer be considered good law. Abrogation, though, is a de-

manding standard in this Circuit. “For a Supreme Court decision

to undermine panel precedent to the point of abrogation, the deci-

sion must be clearly on point and clearly contrary to the panel prec-

edent.” Edwards v. U.S. Att’y Gen., 97 F.4th 725, 743 (11th Cir. 2024)

(citation modified). In addition to being squarely on point, the in-

tervening Supreme Court case must also “actually abrogate or di-

rectly conflict with, as opposed to merely weaken, the holding of

the prior panel.” Id. (quoting United States v. Kaley, 579 F.3d 1246,

1255 (11th Cir. 2009)). In other words, it “must demolish and evis-

cerate each of [the] fundamental props” of the prior-panel prece-

dent. Jennings v. Sec’y, Fla. Dept. of Corr., 108 F.4th 1299, 1304 (11th

Cir. 2024) (citation modified). “Even if the reasoning of an inter-

vening high court decision is at odds with a prior appellate court

decision, that does not provide the appellate court with a basis for

departing from its prior decision.” Id. at 1305 (quoting United States

v. Vega-Castillo, 540 F.3d 1235, 1237 (11th Cir. 2008)). Indeed, “[i]f

the Supreme Court never discussed our precedent and did not oth-

erwise comment on the precise issue before the prior panel, our

1 The plaintiffs submit that this appeal warrants en banc consideration, but that

decision rests with the active judges of this Court. See Fed. R. App. P. 40(c).

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precedent remains binding.” United States v. Dubois, 139 F.4th 887,

892–93 (11th Cir. 2025) (citation modified).

None of the plaintiffs’ cases rise to this occasion. The prin-

cipal case they cite, Jones v. Bock, concerned the Prison Litigation

Reform Act (“PLRA”), not ERISA. See 549 U.S. 199 (2007). In Jones,

the Supreme Court rejected the lower courts’ attempts to fasten

extratextual procedural rules to the PLRA. See id. at 202. The

Court’s central reason for doing so was that these rules lacked a

textual basis. See id. at 214, 217, 220. The Court was also uncon-

vinced that policy considerations justified such rules. See id. at 213–

14, 219, 223–24. The plaintiffs claim that Jones “confirms” Mason’s

judge-made exhaustion requirement is wrong. They are mistaken.

Jones is neither clearly on point nor clearly contrary to our exhaus-

tion precedents. For one, it concerns a different statute. For an-

other, it centers on judge-made procedural rules layered on top of

that statute’s express requirement to exhaust. See id. at 202; 42

U.S.C. § 1997e(a). It does not mention exhaustion of ERISA claims.

Even if it can be said that Jones weakened Mason, it cannot be said

that Jones demolished and eviscerated each of Mason’s fundamental

props. This is just as true, if not more so, for the other cases the

plaintiffs cite. They either do not deal with administrative exhaus-

tion or do not involve ERISA at all. None of these authorities dis-

places our precedent. Mason is the law, and it binds this panel.

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10 Opinion of the Court 24-10084

B. The District Court Did Not Abuse Its Discretion in Dis-

missing the Plaintiffs’ Claims for Failure to Plead Exhaus-

tion.

The plaintiffs next argue that even if our exhaustion prece-

dents remain intact—which they undeniably do—the plaintiffs

were not required to plead exhaustion. They encourage us to va-

cate the dismissal and remand for the district court to consider their

request for leave to remove their conditional exhaustion allegations

and to evaluate exhaustion on a factual record rather than on the

pleadings. We decline to do so.

The parties spill much ink over how we should treat exhaus-

tion at the pleading stage. The plaintiffs posit that we have not de-

cided in a prior published decision whether an ERISA plaintiff must

plead exhaustion. For this reason, they aver that Jones compels us

to hold that it falls on ERISA defendants to plead the failure to ex-

haust as an affirmative defense. See 549 U.S. at 214–16 (concluding

that “failure to exhaust is an affirmative defense under the PLRA”

because nothing indicates that Congress intended to deviate from

normal pleading requirements). Even if we adopt the plaintiffs’

view, however, the amended complaint makes plain that they did

not exhaust, and we agree that they were not excused from doing

so. See Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (“A

complaint may be dismissed if an affirmative defense, such as fail-

ure to exhaust, appears on the face of the complaint.” (citing Jones,

549 U.S. at 215)); Part III.C., infra. On this basis, dismissal is appro-

priate.

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24-10084 Opinion of the Court 11

The plaintiffs’ original complaint said nothing about exhaus-

tion. After the defendants moved to dismiss, the plaintiffs amended

to assert that they had no obligation to affirmatively plead exhaus-

tion. They insisted instead that the failure to exhaust in the ERISA

context is an affirmative defense that a defendant must raise, and

they relied on Jones for support. Though the plaintiffs believe they

were not required to plead around the failure to exhaust, they in-

cluded these arguments in their amended complaint “out of an

abundance of caution.” In the same breath, they asked the district

court to disregard these allegations if it agreed that they need not

plead exhaustion. The plaintiffs even requested leave to remove the

allegations altogether. Presumably, they sought to avoid the infer-

ence that they had failed to exhaust. But if their artful pleading did

not make this inference plausible, the plaintiffs’ allegations that

they were excused from exhausting made it all but certain. The

plaintiffs effectively conceded that they did not exhaust before filing

suit. It would thus serve no purpose to remand for the district

court to entertain a possible amendment from the plaintiffs or for

further factual development on exhaustion.

Even if the amended complaint left things less clear, the dis-

trict court acted well within its discretion in dismissing it. The

court concluded that ERISA plaintiffs must plead exhaustion or a

valid exception. It found that the plaintiffs did neither. The court

rejected the plaintiffs’ reliance on Jones and dismissed the amended

complaint. In Byrd v. MacPapers, Inc., we declined to disturb a dis-

missal predicated on the plaintiff’s failure to plead exhaustion or an

exception to the exhaustion requirement. See 961 F.2d at 160–61.

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12 Opinion of the Court 24-10084

The plaintiffs suggest that Byrd is unhelpful because it left the plead-

ing question unresolved, but in that case, we upheld the dismissal

“on the requirement of pleading exhaustion of remedies.” Id. at

161. And we identified one of the issues presented on appeal as

whether a plaintiff must allege exhaustion or a valid exception. See

id. at 158.

To decide whether a plaintiff faithfully complied with the ex-

haustion requirement, “it is proper for a judge to consider facts out-

side of the pleadings and to resolve factual disputes so long as the

factual disputes do not decide the merits and the parties have suffi-

cient opportunity to develop a record.” Bryant v. Rich, 530 F.3d

1368, 1376 (11th Cir. 2008) (citations omitted). For example, district

courts may consider plan documents on a motion to dismiss—an

exception to the general rule that courts are “limited to reviewing

what is within the four corners of the complaint” at that stage.

Bickley, 461 F.3d at 1329 n.7. They are thus in a better position to

dismiss cases like this one at the pleading stage, where it is clear

that the plaintiffs did not exhaust administrative remedies before

bringing their lawsuit. We cannot say the district court abused its

discretion in dismissing the amended complaint on account of the

plaintiffs’ failure to plead exhaustion or a valid exception. Accord

Byrd, 961 F.2d at 160–61; Variety Child.’s Hosp., Inc. v. Century Med.

Health Plan, Inc., 57 F.3d 1040, 1042 & n.2 (11th Cir. 1995) (finding

no error in district court’s dismissal where the plaintiff alleged that

“it had complied with all conditions precedent or in the alternative

that such conditions have been waived or excused” but failed to

plead futility and “neither pleaded nor recited facts showing that it

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had exhausted its administrative remedies under the plan” (citation

modified)).

C. The District Court Did Not Clearly Abuse Its Discretion by

Declining to Excuse the Plaintiffs’ Failure to Exhaust Be-

fore Filing Suit.

As we have said, courts should “apply the exhaustion re-

quirement strictly.” Perrino, 209 F.3d at 1318. If the plaintiff “had a

fair and reasonable opportunity to pursue a claim through an ad-

ministrative scheme prior to filing suit in federal court” and that

administrative scheme “offers the potential for an adequate legal

remedy,” exhaustion is required as a precondition to judicial review.

Id. We have, however, “recognize[d] narrow exceptions” in “excep-

tional circumstances,” where requiring the plaintiff “to exhaust an

administrative scheme would be an empty exercise in legal formal-

ism.” Id.

A district court may excuse the failure to exhaust if resorting

to an available administrative scheme “would be futile or the rem-

edy inadequate . . . or where a claimant is denied meaningful access

to the administrative review scheme in place.” Id. at 1316 (citation

modified). A district court may also excuse exhaustion if it deter-

mines that the plan’s language caused the plaintiff to “reasonably

interpret[] . . . that she could go straight to court with her claim”

without having to first completely exhaust the plan’s internal pro-

cedures. Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1204

(11th Cir. 2003). Though this is not an exhaustive list, we are gen-

erally disinclined to expand it. See, e.g., Perrino, 209 F.3d at 1316–18

(refusing to recognize “an employer’s noncompliance with ERISA’s

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14 Opinion of the Court 24-10084

technical requirements” as a basis for excusing exhaustion in light

of our strict application of the exhaustion requirement). But if an

exception might apply, we give district courts wide latitude in de-

ciding whether to excuse exhaustion. See id. at 1315.

The district court below chose not to excuse the plaintiffs’

failure to exhaust their administrative remedies before initiating

this lawsuit. The plaintiffs advance three arguments for why the

court was wrong to do so. First, the committee cannot address the

plaintiffs’ claims or provide the relief they seek. Second, the lan-

guage in the plan documents excused exhaustion. Third, exhaus-

tion would have been futile. We reject each argument and address

them in turn.

1. Unavailable Scheme and Inadequate Remedy

The plaintiffs argue that the district court was wrong to not

excuse their failure to exhaust because the plan’s committee is not

authorized to review their claims. The plaintiffs believe that the

committee is limited to administrative tasks or to correcting mis-

takes of fact in calculating benefits due under the plan, rather than

addressing breaches of fiduciary duty. The plaintiffs also complain

that the committee has no power to provide the relief the plaintiffs

seek. That is, the committee cannot hold the defendants personally

liable for causing millions of dollars in losses to the plan and com-

pel them to make the plan whole.

The district court held that the plan establishes a forum to

review the plaintiffs’ claims. The plan requires the committee to

“make any adjustments it considers equitable and practicable to

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24-10084 Opinion of the Court 15

correct a mistake of fact once the mistake becomes known,” but

that is not all the plan provides. A213 (Plan § 8.6). The plan vests

the committee with “the duties and powers necessary to . . . con-

strue and interpret the Plan and decide all questions arising in the

administration, interpretation and application of the Plan and

Trust Agreement.” A212–A213 (Plan § 8.5). Bearing directly on

the plaintiffs’ claims, the plan states that “in no event will the Trust

hold shares of Company Stock if and to the extent such investment

would violate any provision of ERISA” and “[a]ll purchases of

Company Stock by the Trust will be made at a price, . . . which, in

the judgment of the Trustee, do[es] not exceed the fair market

value of such Company stock.” A192 (Plan §§ 5.1, 5.2). In making

its determinations, the committee may rely on information pro-

vided by a participant, the employers, Inland Fresh legal counsel,

or the trustee. Any determinations the committee makes in good

faith “will be binding on all persons.” A213 (Plan § 8.6).

We do not read the plan or the claims procedures as nar-

rowly as the plaintiffs do. Reviewing the relevant plan provisions

as part of one integrated agreement, the district court correctly

concluded that the committee can take up the plaintiffs’ claims. We

reached the same conclusion in Bickley v. Caremark RX, Inc. when

faced with similar plan language. See 461 F.3d at 1329 (reasoning

that plan administrator was capable of addressing the plaintiff’s

claims for breach of fiduciary duty where the plan provided the ad-

ministrator “with all power necessary to resolve all interpretive, eq-

uitable and other questions that shall arise in the operation and ad-

ministration of this Plan” (citation modified)). The plaintiffs accuse

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16 Opinion of the Court 24-10084

the defendants of recasting the claims procedures to apply to the

plaintiffs’ claims by incorporating statutory requirements into the

plan. Their theory is that the claims procedures apply only for de-

nial-of-benefits claims, and the defendants are “transform[ing]” the

plaintiffs’ statutory claims to subject them to these procedures.

The plaintiffs call this the “inverse tactic” of a plaintiff’s attempt at

disguising benefits claims as statutory ones to avoid the exhaustion

requirement in circuits where that distinction matters. See, e.g., Wit

v. United Behav. Health, 79 F.4th 1068, 1089 (9th Cir. 2023). The plain-

tiffs cite no authority that suggests a defendant is wrong to incor-

porate statutory requirements into a plan. Nonetheless, this argu-

ment is misplaced. The plan’s arbitration clause makes clear that

the claims procedures apply to and must be exhausted for statutory

claims, such as those asserting a breach of fiduciary duty. See A232

(Plan § 14.1); Part III.C.2., infra.

As for the plaintiffs’ contention that the plan does not afford

them an adequate legal remedy, nothing in the record indicates that

the committee cannot properly remedy their alleged harm. The

plan at least “offers the potential for an adequate legal remedy” to

appropriately address these breaches of fiduciary duty. Perrino, 209

F.3d at 1318. However, we are left to speculate because the plain-

tiffs did not initiate the plan’s claims procedures before filing suit.

Looking to the purpose of our exhaustion requirement and our

strict adherence to it, we cannot say the district court clearly abused

its discretion by refusing to excuse exhaustion for this reason under

these circumstances. See Mason, 763 F.2d at 1227.

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2. Plan Language

The plaintiffs next argue that the plan itself excused exhaus-

tion. They insist that the plan’s language makes exhaustion op-

tional. In other words, the plaintiffs read the plan to allow them to

go straight to federal court without exhausting their administrative

remedies.

The plaintiffs highlight a few isolated phrases in the plan and

summary plan description. The summary states, “[i]f you have a

claim for benefits which is denied or ignored, in whole or in part,

you may file suit in a state or federal court” and “[i]f it should hap-

pen that Plan fiduciaries misuse the Plan’s money, . . . you may file

suit in a federal court.” A156 (Summary Plan Description, “Partic-

ipant Rights”). We looked at similar language in Bickley. Like we

said there, this language merely reminds the plaintiffs of their “gen-

eral rights under ERISA” to eventually seek judicial review, but it

does not affirmatively excuse them from exhausting the plan’s re-

quired claims procedures. 461 F.3d at 1329.

The plan states that “[w]hile a Participant or Beneficiary

need not file a claim to receive a benefit under the Plan, such a per-

son may submit a written claim to the Committee or seek a review

of the Committee’s benefit determination.” A214 (Plan § 8.10).

The plaintiffs cling to the “need not” and “may” language as evi-

dence that the plan has made exhaustion optional. We find the de-

fendants’ interpretation more compelling. This language does

nothing more than advise participants that they will receive bene-

fits automatically under the plan. It follows logically that if

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18 Opinion of the Court 24-10084

participants receive benefits automatically, filing a claim to receive

them in the first instance is unnecessary. On the other hand, if par-

ticipants disagree with the amount of benefits they receive, they

“may submit a written claim.” Id. Even when participants are un-

satisfied with the benefits they have received automatically under

the plan—say, because they think their benefits would be worth

more but for a fiduciary’s breach of duty—they “may” (but are

never required to) submit a claim in the first place.

The plaintiffs argue that Lanfear v. Home Depot, Inc. obliges us

to read the term “benefit” here to include “whatever would have

been [in the plaintiffs’ retirement accounts] had the plan honored

[their] entitlement, which includes an entitlement to prudent man-

agement.” 536 F.3d at 1223 (citation modified). Thus, they under-

stand Lanfear to mean that they “need not file a claim to receive”

losses due to the defendants’ fiduciary breaches. A214 (Plan § 8.10).

This is a strained reading of that case. In Lanfear we simply resolved

a statutory standing issue. After observing that “ERISA allows the

recovery of benefits, but [] does not allow suits for extracontractual

damages,” we decided that a claim brought by a plaintiff seeking to

recoup losses due to a fiduciary’s breach of duty is a claim for ben-

efits—not damages. 536 F.3d at 1222–23. Thus, we held that such

plaintiffs qualify as participants under ERISA and have standing to

sue. Id. at 1223; see 29 U.S.C. § 1002(7). Lanfear does not control

our reading of the plan’s language.

Ultimately, the plan’s arbitration clause dispenses with any

lingering ambiguity. There, the language is explicit—it binds

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24-10084 Opinion of the Court 19

participants to bring claims in arbitration, including “claims for

breach of fiduciary duty.” A232 (Plan § 14.1). Before participants

may arbitrate such claims, “the plan’s claims procedures . . . must

be exhausted.” Id. Seeking to invalidate this unequivocal com-

mand, the plaintiffs point to the class-action waiver in the next sub-

section. They identify several circuits that have deemed similar

provisions unlawful. See, e.g., Cedeno v. Sasson, 100 F.4th 386, 400–

01, 406–07 (2d Cir. 2024) (holding that class waiver provision in ar-

bitration agreement was unenforceable as applied to participant

seeking relief under ERISA § 502(a)(2), and summarizing similar

decisions from the Third, Seventh, and Tenth Circuits). Because

the arbitration clause states, “[i]n the event a court of competent

jurisdiction were to find these requirements to be unenforceable or

invalid, then the entire Arbitration Procedure . . . shall be rendered

null and void in all respects,” the plaintiffs say that the language

expressly requiring exhaustion for their claims has no effect. A243

(Plan § 14.1(b)). However, the plaintiffs do not cite—and we cannot

find—any case in which this Court has invalidated such waivers,

and we decline to do so now because the issue is not before us.

The plaintiffs’ reliance on Watts v. BellSouth Telecommunica-

tions, Inc. also does not help their cause. See 316 F.3d 1203. In Watts

we recognized that, “from the perspective of the average plan par-

ticipant,” where a participant “reasonably interprets . . . that she

could go straight to court with her claim” without having to first

exhaust the plan’s internal procedures, the court may excuse ex-

haustion. Id. at 1204, 1207. There, the summary plan description

created an ambiguity concerning what participants should do if

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20 Opinion of the Court 24-10084

their claim was denied. In one place, the summary told participants

that they could appeal the denial of a claim using the administrative

appeal process. Id. at 1208. On the very next page, participants

were informed that they could proceed to federal court if their

claim is denied. Id. The plan documents in Watts did not expressly

require an internal appeal. Id.

The ambiguity contemplated in Watts is simply not present

here. The average plan participant would understand that exhaus-

tion of the claims procedures is mandatory. The plan expressly re-

quires it. Even if it did not, like the district court noted, the plain-

tiffs did not plead that they reasonably believed the plan documents

instructed them to go straight to court.

3. Futility

In one final attempt, the plaintiffs ask us to hold that the dis-

trict court clearly abused its discretion for not excusing their failure

to exhaust on futility grounds. Like their other arguments, this one

also fails to persuade us.

Again, exhaustion is excused “when resort to the adminis-

trative route is futile.” Springer, 908 F.2d at 899 (citation omitted).

The plaintiffs claim that because some of the defendants sit on the

committee—though at this stage it is unclear whom—and the com-

mittee would decide whether the defendants violated ERISA, ex-

haustion would be futile. This conflict-of-interest argument fails

“as a matter of law.” Id. at 901. “[T]he futility exception is about

meaningful access to administrative proceedings, not a potential

conflict of interest of the decisionmakers.” Lanfear, 536 F.3d at

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24-10084 Opinion of the Court 21

1225 (synthesizing Bickley and Springer); cf. Curry, 891 F.2d at 846

(excusing exhaustion where plan administrator repeatedly ignored

the participant’s requests for documents supporting the denial of

benefits). This exception “protects participants who are denied

meaningful access to administrative procedures, not those whose

claims would be heard by an interested party.” Lanfear, 536 F.3d at

1224.

The plaintiffs declare that a bright-line approach on conflicts

of interest in this context is inconsistent with “precedent requiring

a ‘case-specific’ analysis of the effect of an administrator’s conflict.”

But the cases they cite concern judicial review of a plan adminis-

trator’s benefits decision, and whether (and to what extent) a con-

flict of interest tainted the administrative proceeding such that the

court should set aside the decision. See Metro. Life Ins. Co. v. Glenn,

554 U.S. 105, 115–17 (2008); Blankenship v. Metro. Life Ins. Co., 644

F.3d 1350, 1354–55 (11th Cir. 2011). While these cases indicate that

a conflict may sometimes justify overruling an administrator’s de-

cision, they do not suggest that a potential conflict should invali-

date an administrative proceeding before it has even begun.

The plaintiffs next point to the defendants’ approach to doc-

ument production in this case. In Plaintiff Alison Mercker’s May

28, 2021, letter to Inland Fresh requesting various documents,

Mercker’s counsel cited 29 U.S.C. § 1024 and 29 C.F.R. § 2520.104b

as the basis for the request. In response, Inland Fresh produced

only the documents called for by those provisions. It produced no

others. Sometime later, the defendants produced the other

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22 Opinion of the Court 24-10084

documents pursuant to the plan’s claims procedures. The plaintiffs

criticize the decision to produce only what was called for by the

authority the plaintiffs cited. They say this illustrates that exhaus-

tion would have been futile because the committee would not have

allowed them a reasonable opportunity to prove their claims. This

argument proves too much, and the district court properly rejected

it. The plaintiffs’ criticism reduces to a complaint that the defend-

ants held them to a standard of precision. This cannot be a basis

for futility.

The plaintiffs also protest that because nothing in the plan

allows them to cross-examine witnesses or compel live testimony,

trying to prove their claims would have been futile. They cite no

authority for this proposition, and we decline to expand the futility

exception in this manner. “[C]ross-examination need not be a part

of every hearing in order to satisfy due process.” Woodbury v.

McKinnon, 447 F.2d 839, 844 (5th Cir. 1971) (citation omitted). 2 Just

because the committee cannot compel live testimony does not ren-

der the claims procedures futile. An administrative proceeding

need not mirror a judicial one to fulfill our policy aims. See Mason,

763 F.2d at 1227. At bottom, the plaintiffs have not made a “clear

and positive showing” that they were denied meaningful access to

the claims procedures to warrant suspending the exhaustion re-

quirement. Springer, 908 F.2d at 901 (citation modified). In fact, the

2 Decisions from the former Fifth Circuit issued prior to October 1, 1981, are

binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661

F.2d 1206, 1207 (11th Cir. 1981) (en banc).

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24-10084 Opinion of the Court 23

plaintiffs’ futility arguments are premature and speculative because

they did not even attempt to exhaust before filing suit. This alone

justifies disregarding those arguments. See Bickley, 461 F.3d at 1330.

D. The District Court Did Not Abuse Its Discretion in Denying

the Plaintiffs’ Request for a Stay.

“The general rule is that where the plaintiff enters the fed-

eral courthouse prematurely, the district court should dismiss.”

Nat’l Bank of Com. of S.A. v. Marshall, 628 F.2d 474, 479 (5th Cir.

1980) (citation modified). Even if we affirm the district court’s dis-

missal for failure to exhaust and its refusal to excuse such failure,

the plaintiffs ask us to conclude that the district court abused its

discretion in denying their request to stay the litigation so that they

could exhaust their administrative remedies. We decline to do so,

on procedural and substantive grounds.

The district court denied the plaintiffs’ request for a stay in

part because the court, citing Federal Rule of Civil Procedure 7(b),

determined that the plaintiffs did not properly move for this relief.

Rather than file a standalone motion, the plaintiffs embedded the

request in their opposition brief to one of the motions to dismiss.

The plaintiffs argue that because the Federal Rules of Civil Proce-

dure do not mandate that a party make a motion by filing a “sepa-

rate document,” this was not a valid basis for denying their request.

In pertinent part, Rule 7(b) states that “[a] request for a court

order must be made by motion . . . in writing[,] . . . stat[ing] with

particularity the grounds for seeking the order; and stat[ing] the

relief sought.” There is ample law in this Circuit interpreting this

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24 Opinion of the Court 24-10084

Rule to justify denying relief where the underlying request is em-

bedded in a brief opposing a motion to dismiss. See, e.g., Advance

Tr. & Life Escrow Servs., LTA v. Protective Life Ins. Co., 93 F.4th 1315,

1336–37 (11th Cir. 2024) (discussing cases). Though these cases

concern motions for leave to amend a complaint, the core proce-

dural tenet is the same: A proper request for a court order may only

be made by a formal motion, and a formal motion may not be

made in a brief opposing a different motion. In view of these cases

and the plain language of the Rule, we cannot say the district court

abused its discretion in denying the plaintiffs’ request to stay the

case on procedural grounds. See Newton v. Duke Energy Fla., LLC,

895 F.3d 1270, 1277–78 (11th Cir. 2018) (holding that the district

court did not abuse its discretion in refusing to consider a motion

for leave to amend because it was raised in an opposition brief ).

On the substance, the plaintiffs’ position is equally uncon-

vincing. They argue that because the district court’s dismissal ex-

poses them to the risk that any future claims they might bring will

be time-barred by ERISA’s limitations provision, the district court

abused its discretion by declining to stay the case pending exhaus-

tion. ERISA requires claims alleging a breach of fiduciary duty to

be filed within the earlier of two periods: (1) six years from “the

date of the last action which constituted a part of the breach or

violation,” or (2) three years from the date on which the plaintiff

first acquired “actual knowledge of the breach or violation.” See 29

U.S.C. § 1113. Neither party disputes that the six-year statute of

repose applies here. The plaintiffs timely sued in the waning days

of this timeframe. The initial stock purchase to create the plan

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24-10084 Opinion of the Court 25

occurred on November 26, 2016, and the plaintiffs filed suit on No-

vember 18, 2022. But now, the plaintiffs are well beyond expiration

of the statute of repose, and their claims were dismissed by the dis-

trict court.

Fortunately for the plaintiffs, ERISA provides more time to

sue in cases of fraud or concealment. See id. (in cases of “fraud or

concealment,” the plaintiff has six years from “the date of discov-

ery of such breach or violation” to bring a claim). The plaintiffs are

well aware of this exception. In fact, they pleaded that due to the

defendants’ fraud and concealment, they did not discover the basis

for their claims until September 2022. This would mean, assuming

the exception applies, the plaintiffs’ deadline to bring their breach-

of-fiduciary-duty claims is September 2028. Assuming the district

court below rules that the dismissal is without prejudice, this ex-

tension provides the plaintiffs with ample time to first exhaust the

plan’s internal procedures—a process that, by the plaintiffs’ own es-

timation, could take between six and twelve months—and to sub-

sequently file new claims.

Nevertheless, the plaintiffs believe that the district court’s re-

fusal to stay the case harmed their “substantive rights” because the

timeliness of the new claims they might bring hinges on a finding

that the “fraud or concealment exception” applies. This is unavail-

ing. The plaintiffs pleaded fraud and concealment here and are

free to do so again in a future lawsuit. The only difference is that

now they are in the position where they must convince the court

that such fraud or concealment did in fact occur.

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26 Opinion of the Court 24-10084

As the district court aptly recognized, “plaintiffs in ERISA

actions must exhaust available administrative remedies before suing

in federal court.” Lanfear, 536 F.3d at 1223 (emphasis added) (cita-

tion omitted). The court reasoned that allowing a plaintiff to sue

without first fully exhausting administrative remedies—or, in this

case, without even initiating exhaustion—would subvert our aims

to, for example, “reduce the number of frivolous lawsuits under

ERISA,” “minimize the cost of dispute resolution,” and prevent

“premature judicial intervention in the decisionmaking process.”

Mason, 763 F.2d at 1227. Extending this further, awarding a stay to

ERISA plaintiffs who fail to even begin the administrative exhaus-

tion process before lodging their complaint would effectively elim-

inate our pre-suit exhaustion requirement and discourage diligence

on the part of plaintiffs’ counsel to investigate and pursue potential

claims. We cannot say that the district court abused its discretion

when it refused to endorse such a practice.

E. The District Court Should Be Permitted to Indicate

Whether the Dismissal Is Without Prejudice.

Even if we affirm on all other grounds, the plaintiffs ask this

panel for a limited remand order instructing the district court to

specify that the dismissal is without prejudice. “[I]t is a best practice

for district courts to err on the side of clarity and indicate whether

prejudice has attached.” Dupree v. Owens, 92 F.4th 999, 1008 (11th

Cir. 2024). This is significant because silence can be construed

against a plaintiff. If a dismissal order does not state that dismissal

is without prejudice, it will operate as “an adjudication on the mer-

its”—i.e., a dismissal with prejudice—unless the dismissal rests on

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24-10084 Opinion of the Court 27

lack of jurisdiction, improper venue, or failure to join a party under

Federal Rule of Civil Procedure 19. Fed. R. Civ. P. 41(b).

The district court dismissed the amended complaint but did

not clarify the prejudicial scope of its order. On this basis, the de-

fendants argue that by routine operation of Federal Rule of Civil

Procedure 41, the dismissal order amounts to a dismissal with prej-

udice. The defendants also seem to suggest that the district court

intended to dismiss this case with prejudice because one of the mo-

tions to dismiss requested dismissal with prejudice (though De-

fendant James Urbach’s motion did not). The plaintiffs aver that

the failure to exhaust administrative remedies falls under Rule

41(b)’s jurisdictional exception, and, as such, the dismissal order is

not an adjudication on the merits. But their primary argument is

the court should have specified that the dismissal is without preju-

dice because “[e]xhaustion of administrative remedies . . . ordinar-

ily does not deal with the merits.” Bryant, 530 F.3d at 1374 (citation

modified).

“We regard exhaustion of administrative remedies as a mat-

ter of judicial administration.” Id. at 1375. Failure to exhaust ad-

ministrative remedies is “non-jurisdictional” and is “not generally

an adjudication on the merits.” Id. at 1374. We have intimated that

a dismissal without prejudice is the correct result in this context.

See, e.g., Lanfear, 536 F.3d at 1225 (remanding with instructions for

the district court to consider whether failure to exhaust available

administrative procedures should yield a dismissal without preju-

dice). However, we have acknowledged that some circumstances

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28 Opinion of the Court 24-10084

may warrant dismissing a case indefinitely. See Bryant, 530 F.3d at

1375 n.11 (“We do not mean to say today that a failure to exhaust

can never correctly result in a dismissal with prejudice.”).

We decline to rule on the effect of the district court’s order

and instead remand so that the court can specify whether prejudice

attaches. In so doing, we also avoid any conjecture about what the

district court might have intended to do. Whether the plaintiffs

may return to federal court after exhausting the plan’s claims pro-

cedures should be decided by the district court, at least in the first

instance.

AFFIRMED and REMANDED, in part, for proceedings

consistent with this opinion.

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24-10084 Jordan, J., Concurring 1

JORDAN, Circuit Judge, joined by JILL PRYOR, Circuit Judge, Con-

curring:

Judge Moreno has drafted a well-written opinion for the

court, and I join it in full. I write separately to propose that we

convene en banc to consider overruling Mason v. Continental Group,

763 F.2d 1219, 1227 (11th Cir. 1985), which imposed a judicially-cre-

ated and atextual administrative exhaustion requirement for fiduci-

ary-breach and statutory claims under ERISA, 29 U.S.C. §§ 1109(a),

1132(a)(2)–(3).

There are a number of good reasons for overruling Mason. I

will try to be brief in summarizing them.

First, ERISA, which is a “comprehensive and reticulated” act,

Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209 (2002)

(internal quotation marks and citation omitted), does not have an

exhaustion requirement. It has long been understood that courts

“are not at liberty to add to or take from the language of [a] stat-

ute.” Stockley v. United States, 260 U.S. 532, 540 (1923). We should

not impose a requirement that Congress has omitted. See, e.g.,

Silva-Hernandez v. U.S. Bureau of Citizenship & Immigr. Servs., 701

F.3d 356, 361 (11th Cir. 2012) (“We cannot add to the terms of the

provision what Congress left out.”) (citation omitted).

Second, Mason acknowledged that ERISA does not require

exhaustion, see 763 F.2d at 1225, yet it imposed an exhaustion re-

quirement for fiduciary-breach and statutory claims for policy rea-

sons: “Compelling considerations exist for plaintiffs to exhaust

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2 Jordan, J., Concurring 24-10084

administrative remedies prior to instituting a lawsuit. Administra-

tive claim-resolution procedures reduce the number of frivolous

lawsuits under ERISA, minimize the cost of dispute resolution, en-

hance the plan’s trustees’ ability to carry out their fiduciary duties

expertly and efficiently by preventing premature judicial interven-

tion in the decisionmaking process, and allow prior fully consid-

ered actions by pension plan trustees to assist courts if the dispute

is eventually litigated.” Id. at 1227.

The Supreme Court has told the lower federal courts that

“crafting and imposing” exhaustion rules that “are not required” by

the text of a federal statute “exceeds the proper limits on the judi-

cial role.” Jones v. Bock, 549 U.S. 199, 203, 217 (2007) (rejecting judi-

cially-created rule that plaintiffs have to plead exhaustion in suits

covered by the Prison Litigation Reform Act because the Act “does

not itself require plaintiffs to plead exhaustion”). Although Jones

does not do away with Mason under our strict abrogation standard,

see, e.g., Jennings v. Sec’y, Fla. Dep’t of Corr., 108 F.4th 1299, 1304 (11th

Cir. 2024), it does show that Mason erred in relying on policy con-

siderations to create an atextual exhaustion requirement for fiduci-

ary-breach and statutory claims under ERISA. If exhaustion is go-

ing to be required for such claims, “that is a result which must be

obtained by the process of amending [ERISA], and not by judicial

interpretation.” Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163, 168 (1993).

Third, as the Court’s opinion notes, seven circuits—the

Third, Fourth, Fifth, Sixth, Ninth, Tenth, and D.C. Circuits—have

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24-10084 Jordan, J., Concurring 3

held that plaintiffs asserting fiduciary-breach and statutory claims

under ERISA do not have to exhaust administrative remedies. See

generally Hitchcock v. Cumberland Univ. 403(b) DC Plan, 851 F.3d 552,

564–65 (6th Cir. 2017) (“We agree with the Third, Fourth, Fifth,

Ninth, Tenth, and D.C. Circuits . . . [and] hold that ERISA plan par-

ticipants or beneficiaries do not need to exhaust internal remedial

procedures before proceeding to federal court when they assert

statutory violations of ERISA.”) (citing cases).

The only circuit to align with Mason, the Seventh Circuit,

reasoned that exhaustion should be required for fiduciary-breach

and statutory claims in part because “Congress’[ ] apparent intent

in mandating internal claims procedures found in ERISA was to

minimize the number of frivolous lawsuits, promote a non-adver-

sarial dispute resolution process, and decrease the cost and time of

claims settlement.” Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650

(7th Cir. 1996) (citing 29 U.S.C. § 1133). But, as the Third Circuit

has explained, “[t]he [ERISA] provision relating to internal claims

and appeals procedures, [29 U.S.C. § 1133(2)], refers only to proce-

dures regarding claims for benefits,” and therefore does not support

creating an exhaustion requirement for non-benefit claims. See

Zipf v. AT&T, 799 F.2d 889, 891 (3d Cir. 1986).

Moreover, the Seventh Circuit’s exhaustion rule, unlike that

of the Eleventh Circuit, is not mandatory. See Lindemann, 79 F.3d

at 650 (“[T]he law of this Circuit remains that the decision to re-

quire exhaustion as a prerequisite to bringing a federal lawsuit is a

matter within the discretion of the trial court and its decision will

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4 Jordan, J., Concurring 24-10084

be reversed only if it is obviously in error.”); Salus v. GTE Directories

Serv. Corp., 104 F.3d 131, 138–39 (7th Cir. 1997) (affirming, as not an

abuse of discretion, the district court’s determination that a former

employee asserting an ERISA statutory claim under 29 U.S.C.

§ 1140 did not have to exhaust administrative remedies). So our

circuit stands alone in requiring mandatory exhaustion for fiduci-

ary-breach and statutory claims under ERISA.

Fourth, secondary authorities side with the majority posi-

tion that exhaustion is not required for fiduciary-breach and statu-

tory claims under ERISA. See, e.g., RIA Pension & Benefits Library

§ 139,411 (2025) (“Exhaustion of administrative remedies is not re-

quired in actions for breach of fiduciary duty.”); Andrew L. Oringer,

ERISA: A Comprehensive Guide § 8.04[E] at 8-43 (9th ed. & 2023

supp.) (“Unlike actions recover benefits, the courts generally have

not required the exhaustion of internal claims procedures as a pre-

condition to filing suit [for breach of fiduciary duties]. Because suits

alleging breach of fiduciary duty involve statutory application ra-

ther than plan interpretation, the special expertise of plan adminis-

trators with respect to plan language and proper applications

would be of little or no assistance to a reviewing court.”); Jared A.

Goldstein, Employment Discrimination Claims Under ERISA Section

510: Should Courts Require Exhaustion of Arbitral and Plan Remedies?,

93 Mich. L. Rev. 193, 197 (1994) (“[C]ourts should not impose an

exhaustion of plan remedies requirement for statutory

claims . . . because neither the text nor the legislative history of

ERISA indicates that Congress intended to require exhaustion for

statutory claims.”); Stephen R. Bruce, Pension Claims: Rights and

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24-10084 Jordan, J., Concurring 5

Obligations 704 (2d ed. 1993) (“Exhaustion of a plan’s claims pro-

cedure is not a prerequisite to an action to remedy a statutory vio-

lation if the violation is independent of the correct interpretation

of the plan’s terms.”). These authorities provide further support

for overruling Mason.

Fifth, and finally, the issue is an important one that is likely

to recur. According to some industry sources, ERISA fiduciary-

breach cases have increased following the Supreme Court’s deci-

sion in Hughes v. Northwestern University. See 595 U.S. 170, 176 (2022)

(holding that courts cannot “rely[ ] on the participants’ ultimate

choice over their investments to excuse allegedly imprudent deci-

sions by [plan fiduciaries]”). For example, one publication reports

that excessive fee litigation in 401(k) plans increased by 35% in 2024.

See Daniel Aronowitz & Karolina Jazwiak, 401(k) Excessive Fee Liti-

gation Spiked to ‘Near Record Pace’ in ’24, PlanAdviser ( Jan. 13, 2025),

https://perma.cc/L7UG-LUX6.

I urge my colleagues to vote to rehear this case en banc and

consider overruling Mason.