Ex-Labor Officials Slam Eleventh Circuit’s ERISA Exhaustion Rule

A group of former high-ranking Labor Department officials is urging the Eleventh Circuit to eliminate its unique rule imposing additional roadblocks on workers claiming their benefit plans are mismanaged.

The officials oppose the US Court of Appeals for the Eleventh Circuit’s practice of requiring workers to first exhaust their benefit plan’s administrative remedies before suing for fiduciary breach under the Employee Retirement Income Security Act. This rule is unsupported by the statutory text and “inconsistent with ERISA policies and practical considerations,” the officials said Tuesday in a motion seeking permission to file an amicus brief in the case, which is set to be reviewed by the full slate of the appeals court’s judges.

The group includes Phyllis Borzi, head of the Employee Benefits Security Administration under President Barack Obama, and Ali Khawar, who served as acting assistant secretary for EBSA under President Joe Biden.

The motion follows Borzi and Khawar’s similar effort to support workers in an appeal over Lockheed Martin Corp.'s pension plan, in which the pair decried the Trump administration’s ongoing effort to use its amicus brief program to “limit the scope of ERISA’s private right of action” and “return workers and retirees to the pre-ERISA regime.”

Outlier Rule

The Eleventh Circuit case—led by participants in an employee stock ownership plan sponsored by Inland Fresh Seafood Corp. of America—gives the en banc court a chance to overrule its outlier practices, which the other circuits don’t follow.

Workers seeking denied benefits from ERISA-covered plans typically must show they’ve first raised the issue through the plan’s internal appeals process before filing suit. But unlike other circuits, courts within the Eleventh Circuit also extend this requirement to plaintiffs alleging statutory violations of ERISA.

A federal judge in Georgia dismissed the Inland Fresh workers’ case in 2023 for not exhausting their internal remedies. The workers appealed, asking the Eleventh Circuit to overrule the ERISA exhaustion rule, and they received support from the Biden DOL.

A three-judge Eleventh Circuit panel largely upheld the case’s dismissal based on binding circuit precedent requiring administrative exhaustion. That opinion was accompanied by a concurrence in which Judges Adalberto Jordan and Jill A. Pryor urged the full court to rehear the case so it can consider overruling this unusual practice.

The court said in January that it would rehear the case en banc, allowing it to rethink—or possibly overturn—the exhaustion rule.

Four other former DOL employees joined Borzi and Khawar in opposing the Eleventh Circuit’s exhaustion rule, including Tim Hauser, who held multiple high-ranking roles between 2000 and 2025, and Karen Handorf, former deputy associate solicitor for the Plan Benefits Security Division from 2000 until 2007.

Hopkins ERISA Law represents the former officials.

The case is Bolton v. Inland Fresh Seafood Corp. of Am., Inc., 11th Cir., No. 24-10084, motion to file brief 3/17/26.