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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,
MELISSA SUTER,
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,
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 WILLIAM PRYOR, Chief Judge, and JORDAN, ROSENBAUM, JILL
PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER,
ABUDU, and KIDD, Circuit Judges.
JORDAN, Circuit Judge:
Today, we revisit Mason v. Continental Group, Inc., 763 F.2d
1219 (11th Cir. 1985), which imposed a mandatory administrative
exhaustion requirement for all statutory claims brought under the
Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§
1001 et seq. For the reasons which follow, we overrule Mason and
its progeny to the extent they hold that ERISA itself requires exhaustion of statutory claims (including those alleging a breach of
fiduciary duty).
Because the district court’s dismissal of the plaintiffs’ claims
was based on Mason and its progeny, we reverse the dismissal order
and remand to the panel for further proceedings.
I
The dispute in this case arises from an employee pension
plan created by Inland Fresh Seafood Corporation of America. The
named plaintiffs in this class action are five former Inland Fresh employees. They sued Inland Fresh and several alleged fiduciaries—
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namely, the plan’s trustee, the plan’s committee, and four of the
company’s officers and directors (whom we refer to collectively as
the defendants). See Bolton v. Inland Fresh Seafood Corp. of Am., Inc.,
155 F.4th 1272, 1278 (11th Cir. 2025). Their claims arise from the
transaction described below.
In November of 2016, the plan used the proceeds from a $92
million loan, guaranteed by Inland Fresh, to purchase all outstanding shares of the company’s common stock from four of the company’s officers and directors. See id. According to the plaintiffs,
that purchase price was inflated—the result of false financial projections, among other things—and far exceeded Inland Fresh’s fair
market value.
On behalf of the plan itself and a proposed class of the plan’s
578 participants, the plaintiffs brought claims under § 502(a)(2) and
(a)(3) of ERISA, 29 U.S.C. § 1132(a)(2) & (a)(3). They alleged that
the defendants breached their fiduciary duties by causing the plan
and its participants to overpay by tens of millions of dollars for the
Inland Fresh common stock. See Bolton, 155 F.4th at 1278. They
also alleged that the plan’s trustee failed to conduct proper due diligence before settling on the purchase price. See id.
The defendants moved to dismiss. They argued, among
other things, that the plaintiffs did not exhaust administrative remedies prior to filing suit and that the deadline for pursuing such
remedies had passed. The plaintiffs responded that administrative
exhaustion was not necessary; that exhaustion need not have been
pleaded, in any event; and that if exhaustion were required, the
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case should be stayed to allow for them to pursue administrative
remedies.
The district court dismissed the complaint and denied the
plaintiffs’ request to stay the case to allow them to pursue administrative remedies. The court explained that it and the parties were
bound by Mason and its progeny, which require administrative exhaustion for statutory ERISA claims. See Bolton v. Inland Fresh Seafood Corp. of Am., Inc., 2023 WL 9196735, at *2 (N.D. Ga. Dec. 5,
2023) (rejecting the plaintiffs’ argument that other circuits “hold[ ]
that there is no administrative exhaustion requirement for ERISA
suits”). See also id. at *6 (denying a stay: “That the Eleventh Circuit
may be unique in requiring exhaustion of administrative remedies
prior to filing suit does not justify ignoring the requirement.”).
A panel of this court affirmed the dismissal. See Bolton, 155
F.4th at 1289. The panel, like the district court, concluded that it
was bound by Mason. See id. at 1281. In a separate concurrence,
two members of the panel opined that Mason had been wrongly
decided and should be overruled by the full court. See id. at 1289–
91 (Jordan, J., joined by Jill Pryor, J., concurring). We vacated the
panel opinion and ordered rehearing en banc. See 166 F.4th 106,
107 (11th Cir. 2026).
II
We do not take our decision to overrule Mason lightly. But
our holding requiring administrative exhaustion in Mason was an
atextual product of judicial creation based solely on policy reasons.
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That holding, moreover, has not withstood the test of time as most
of our sister circuits have come to a contrary conclusion.1
A
We start with ERISA itself. Despite its “comprehensive”
scope, see Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204,
209 (2002) (internal quotation marks and citation omitted), ERISA
does not contain an exhaustion requirement for statutory claims.
And it has long been understood that courts “are not at liberty to
add to or take from the language of [a] statute.” Stockley v. United
States, 260 U.S. 532, 540 (1923). As a general matter, therefore, 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). 2
1 We limit our discussion, and holding, to whether ERISA requires administrative exhaustion for statutory claims. We do not address our cases requiring
exhaustion in cases where a plaintiff is challenging the denial of benefits under
the terms of a plan governed by ERISA. See, e.g., Springer v. Wal-Mart Associates’ Grp. Health Plan, 908 F.2d 897, 900 (11th Cir. 1990) (“[I]t is no longer open
to serious dispute that plaintiffs in ordinary breach-of-contract ERISA actions
must normally exhaust available administrative remedies.”).
2 There are some limited exceptions to this general rule. For example, sometimes federal courts “look to background common-law principles to fill in obvious gaps in statutes, such as a missing mens rea element in a criminal statute.”
Hewitt v. United States, 606 U.S. 419, 455 (2025) (Alito, J., dissenting). See, e.g.,
Elonis v. United States, 575 U.S. 723, 736 (2015) (“When interpreting federal
criminal statutes that are silent on the required mental state, we read into the
statute only that mens rea which is necessary to separate wrongful conduct
from otherwise innocent conduct.”) (internal quotation marks and citation USCA11 Case: 24-10084 Document: 95-1 Date Filed: 10/13/2026 Page: 6 of 18
6 Opinion of the Court 24-10084
Mason acknowledged that ERISA itself does not require exhaustion for statutory claims. See 763 F.2d at 1225. Yet it imposed
an exhaustion requirement for policy reasons:
Compelling considerations exist for plaintiffs to exhaust administrative remedies prior to instituting a
lawsuit. Administrative claim-resolution procedures
reduce the number of frivolous lawsuits under
ERISA, minimize the cost of dispute resolution, enhance the plan’s trustees’ ability to carry out their fiduciary duties 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 eventually litigated.
Id. at 1227 (following the Seventh Circuit’s decision in Kross v. Western Electric Co., 701 F.2d 1238, 1244–45 (7th Cir. 1983)).
“Whatever merits these and other policy arguments may
have,” however, “it is not [our] province . . . to rewrite the statute
to accommodate them.” Artuz v. Bennett, 531 U.S. 4, 10 (2000).
“[G]eneral policy concerns cannot overcome the plain language of
[a] statute.” In re Guillen, 972 F.3d 1221, 1228 (11th Cir. 2020). We
are bound by statutory text, and the matter of exhaustion is no exception.
omitted). But here, as we explain, “[t]here is no ‘interstice’ . . . to be filled by
federal common law[.]” City of Milwaukee v. Illinois and Michigan, 451 U.S. 304,
323 (1981).
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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 judicial role.” Jones v. Bock, 549 U.S. 199, 203, 216–17 (2007) (rejecting
a judicially-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 did 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 considerations to create an atextual exhaustion requirement for statutory claims under ERISA. If exhaustion is going 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 Cnty. Narcotics Intel. and Coordination
Unit, 507 U.S. 163, 168 (1993).
That the administrative exhaustion holding in Mason was
unmoored from ERISA’s text is enough, in doctrinal terms, to call
it into serious question. But it is also noteworthy that Mason and
its progeny are at odds with seven of our sister circuits; the Third,
Fourth, Fifth, Sixth, Ninth, Tenth, and D.C. Circuits have held that
plaintiffs asserting 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 (6th Cir. 2017) (“We agree
with the Third, Fourth, Fifth, Ninth, Tenth, and D.C. Circuits . . .
[and] hold that ERISA plan participants or beneficiaries do not need
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to exhaust internal remedial procedures before proceeding to federal court when they assert statutory violations of ERISA.”) (citing
cases).
Secondary authorities side with the majority position that
exhaustion is not required for statutory claims under ERISA. See,
e.g., RIA Pension & Benefits Library § 139, 411 (2025) (“Exhaustion
of administrative remedies is not required in actions for breach of
fiduciary duty.”); Andrew L. Oringer, ERISA: A Comprehensive
Guide § 8.04[E] at 8-43 (9th ed. 2024) (“Unlike actions to recover
benefits, the courts generally have not required the exhaustion of
internal claims procedures as a precondition to filing suit [for
breach of fiduciary duties]. Because suits alleging breach of fiduciary duty involve statutory application rather than plan interpretation, the special expertise of plan administrators with respect to
plan language and prior 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 Obligations 704 (2d ed. 1993)
(“Exhaustion of a plan’s claims procedure is not a prerequisite to
an action to remedy a statutory violation if the violation is independent of the correct interpretation of the plan’s terms.”). These
authorities provide further support for overruling Mason.
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The only circuit to align with Mason, the Seventh Circuit,
reasoned that exhaustion should be required for statutory ERISA
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-adversarial 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, [§ 1133(2)], refers only to procedures regarding
claims for benefits,” and therefore does not support creating an exhaustion requirement for statutory/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
in Mason, is not mandatory. See Lindemann, 79 F.3d at 650 (“[T]he
law of this Circuit remains that the decision to require exhaustion
as a prerequisite to bringing a federal lawsuit is a matter within the
discretion of the trial court and its decision will be reversed only if
it is obviously in error.”). See also 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 we
stand alone in requiring mandatory exhaustion for fiduciary-breach
and statutory claims under ERISA.
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B
The defendants argue that stare decisis counsels strongly
against overruling Mason. In their view, Mason was correctly decided and, regardless, we “should . . . not discard forty years of predictability.” Appellees’ Br. at 34.
“We recognize that overturning precedent is and should be
a rare occurrence.” McCarthan v. Dir. of Goodwill Indus.-Suncoast,
Inc., 851 F.3d 1076, 1095 (11th Cir. 2017) (en banc). Nonetheless,
“[t]hough stare decisis is a hallmark of our judicial system, it ‘is not
an inexorable command.’” Corporación AIC, SA v. Hidroeléctrica
Santa Rita S.A., 66 F.4th 876, 888 (11th Cir. 2023) (en banc) (quotation modified and citation omitted). “We may overrule a prior case
that is ‘plainly and palpably wrong’ if doing so would not ‘result in
more harm than continuing to follow the erroneous decision.’” Id.
(citing McCarthan, 851 F.3d at 1096).
“In deciding whether to overrule precedent, we consider
‘the quality of the decision’s reasoning; its consistency with related
decisions; legal developments since the decision; and reliance on
the decision.’” Id. (citing Ramos v. Louisiana, 590 U.S. 83, 106
(2020)). Here those considerations weigh heavily in favor of overruling Mason and its progeny to the extent they hold that ERISA
itself requires administrative exhaustion of statutory claims.
We have already discussed the first of these factors—the
quality of our analysis in Mason. Having taken measure of it, we
find it to be wanting. Cf. A Knight’s Tale (Columbia Pictures 2001).
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Our holding in Mason, as relevant here, favored policy considerations over the text of ERISA itself. And, as noted earlier, Mason
relied on Seventh Circuit precedent that, over time, has proven to
result in a discretionary exhaustion rule instead of a mandatory
one. Our circuit thus finds itself in “direct[ ] conflict with the decisions of our sister circuits.” Corporación AIC, 66 F.4th at 889. Not
surprisingly, we have been asked over the years to reconsider Mason and its progeny. See, e.g., Bickley v. Caremark RX, Inc., 461 F.3d
1325, 1328 n.6 (11th Cir. 2006); Counts v. Am. Gen. Life & Acc. Ins.
Co., 111 F.3d 105, 109 (11th Cir. 1997).
The defendants do not meaningfully grapple with the decisions of our sister circuits. Instead, they contend that because
ERISA is silent as to administrative exhaustion, we have discretion
to require exhaustion in cases involving statutory claims. They cite
no authorities that convince us to adopt such a rule. One of their
cited cases, for example, involves a since-superseded regulation;
recognizes “appropriate deference to Congress’ power to prescribe
the basic procedural scheme under which a claim may be heard in
federal court”; and further notes there are “broad sets of circumstances in which the interests of the individual weigh heavily
against requiring administrative exhaustion.” McCarthy v. Madigan,
503 U.S. 140, 142, 144, 146, 149 (1992) (holding that, despite a federal regulation providing that inmates could seek administrative review of a complaint relating to “any aspect of his imprisonment,”
exhaustion was not required for a Bivens claim seeking only money
damages). To the extent that “sound judicial discretion governs”
where “Congress has not clearly required exhaustion,” id. at 144,
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we decline to reaffirm Mason and its exhaustion requirement as an
exercise of discretion. First, ERISA “provid[es] for . . . ready access
to the [f]ederal courts,” 29 U.S.C. § 1001(b), and an exhaustion requirement will necessarily delay such access. Second, where the
statutory claim is for breach of fiduciary duty, those being accused
of malfeasance may well have a conflict of interest in administratively reviewing a complaint against them.
Nor do we read much into the fact that Congress has not
“correct[ed]” our decision in Mason. See Appellees’ Br. at 52. Given
that the circuit split on the exhaustion question is a whopping 7-1-1, we very much doubt that Congress would take the time necessary to amend ERISA to expressly reject the view of the two minority circuits.
Mason is long-standing precedent and we recognize that it
may have created certain reliance interests over the years. But any
reliance is likely minimal. Although Mason added a procedural hurdle to litigation by grafting an exhaustion requirement onto ERISA,
it did not alter the nature of available claims brought, duties owed,
and remedies authorized under ERISA itself.
We overrule Mason and its progeny to the extent they hold
that ERISA itself requires exhaustion of statutory claims, including
claims for breach of fiduciary duty.
C
The defendants urge us to overrule Mason only prospectively. We have explained that “[t]he Supreme Court has retreated
from, but has not abandoned, prospectivity in civil cases.” Glazner
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v. Glazner, 347 F.3d 1212, 1217 (11th Cir. 2003) (en banc). But we
see no reason here to depart from the “normal rule of retroactive
application.” Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 97 (1993)
(quotation marks and citation omitted).
Citing Chevron Oil Co. v. Huson, 404 U.S. 97, 105–09 (1971),
we have recognized three factors that help us determine “whether
to reject retroactive application of a new decision in favor of purely
prospective application.” Glazner, 347 F.3d at 1216. Even assuming
that the first of those factors is satisfied—that is, that our decision
today “announce[s] a new principle of law,” id. at 1220 (alteration
in original) (quotation marks and citation omitted)—the other considerations weigh in favor of our usual rule of retroactivity.
Take the second factor, which is “whether ‘retrospective operation will further or retard [the rule’s] operation.’” Id. (alteration
in original) (quoting Chevron Oil, 404 U.S. at 107). ERISA, as noted,
contemplates “ready access to the [f]ederal courts.” 29 U.S.C. §
1001(b). Today’s overruling of Mason furthers that objective rather
than hindering it.
We are left, then, to consider “whether making the rule retroactive would be inequitable.” Glazner, 347 F.3d at 1220 (citing
Chevron Oil, 404 U.S. at 107). This factor also favors retroactivity.
Given our conclusion that exhaustion is not required by ERISA, we
are not persuaded by the argument that retroactively applying our
holding today would “frustrate the parties’ bargain” as reflected in
the terms of the plan. See Appellees’ Br. at 56. As discussed below,
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the plan’s language does not require exhaustion. Nor are we concerned with an uptick in liability for those who “faced no possibility
of liability before,” Glazner, 347 F.3d at 1220, because our overruling of Mason today, although making access to the courts easier,
does not expand liability for statutory claims under ERISA.
Because the Glazner test (applying Chevron Oil) counsels it,
our holding today applies to the parties in this case.
III
The defendants argue that we should not consider whether
the panel was correct in ruling that the plan itself—aside from
ERISA—requires administrative exhaustion for all ERISA claims.
Determining whether the plan requires exhaustion of ERISA statutory claims would normally require us to answer an antecedent
question: whether the parties can contract through the language of
a plan to require exhaustion of statutory claims where ERISA itself
is silent on the matter. Ultimately, we need not decide this antecedent question because we conclude that the plan here does not
mandate exhaustion for statutory ERISA claims.
We start with § 8.10 of the plan, which addresses “Claims
and Review Procedures.” It states that “[w]hile a Participant or
Beneficiary need not file a claim to receive a benefit under the Plan,
such a person may submit a written claim to the Committee or seek
a review of the Committee’s benefit determination. The Committee
will afford the Participant or Beneficiary a full and fair review of
such a request as provided in Supplement A.” Appendix (D.E. 23)
at A214 (emphasis added). This language tracks the summary plan
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description (the SPD): “Although you do not need to file a formal
claim to receive your benefit, you may submit a written claim to
the Committee or seek a review of the determination by the Committee on your Plan benefit.” Id. at A153 (emphasis added).
The defendants say that this language requires exhaustion of
statutory ERISA claims. We do not think so.
First, the “Claims and Review Procedures” language is permissive, not mandatory. See, e.g., § 8.10 (stating that a participant
“need not file a claim” but “may submit a written claim”). As in a
statute, the use of the word “may” in the plan “implies that what
follows is a permissive rule,” because “‘may’ cannot, by any rendering, mean ‘must.’” MSPA Claims 1, LLC v. Kingsway Amigo Ins.
Co., 950 F.3d 764, 773–74 (11th Cir. 2020) (some internal quotation
marks and citations omitted). See, e.g., The American Heritage Dictionary of the English Language 1083 (4th ed. 2009) (defining
“may” as “[t]o be allowed or permitted to”). This ordinary understanding of “may” is reinforced by the “need not” language which
precedes it.
We recognize that the district court disagreed with this reading of § 8.10, as did the panel. See Bolton, 2023 WL 9196735, at *3–
4; Bolton, 155 F.4th at 1284–85. But those decisions were rendered
in the context of a different ERISA world—one where Mason and
its mandatory exhaustion requirement governed. Indeed, our earlier cases said that such language in a plan “merely recites plan participants’ general rights under ERISA and does not excuse a participant from satisfying the exhaustion requirement.” Bickley, 461
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F.3d at 1329. Having now overruled Mason to the extent discussed,
we do not need to read the plan language with a Mason gloss.
Second, our view is supported by the “Participant Rights”
section of the SPD. The SPD—which informs, but does not dictate,
our view of the plan itself, see SPD at (i) (stating that “[i]f there is a
discrepancy between this summary and the Plan, the provisions of
the Plan will control”)—provides: “If it should happen that Plan fiduciaries misuse the Plan’s money . . . you may seek assistance from
the U.S. Department of Labor, or you may file suit in a federal
court.” Appendix (D.E. 23) at A156 (emphasis added). Again, we
see no mandate to exhaust before “fil[ing] suit in a federal court”
for misuse of the plan’s money, which is one of the wrongs alleged
here. We note, too, that the Department of Labor, which filed a
brief as amicus curiae in this en banc appeal, agrees “that the plan
documents at issue here make clear that its internal review process
is voluntary, not mandatory.” Dep’t of Labor Amicus Curiae Br. at
24. We concur in the DOL’s assessment.
The defendants further assert that the panel correctly ruled
that the arbitration clause in the plan confirms that the internal
claims procedures must be exhausted before the parties can assert
claims in arbitration. See Appendix (D.E. 23) at A232 (“Subject to
and without waiver of full compliance with the Plan’s claims procedures as described in Supplement A which, to the extent applicable, must be exhausted with respect to any claim before any arbitration pursuant to this Section 14.1, all Covered Claims (defined
below) must be resolved exclusively pursuant to the provisions of
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this Section 14.1 (the ‘Arbitration Procedure’).”). They also say
that Williams v. Shapiro, 161 F.4th 1313 (11th Cir. 2025), a decision
issued after our initial panel opinion, “would not change the analysis.” Appellees’ Br. at 29 n.9. In Williams, we declined to enforce
the arbitration provision at issue, which required individual arbitration, because it constituted a prospective waiver of a statutory
right under ERISA. See 161 F.4th at 1322–23.
The Department of Labor, for its part, asserted at oral argument that parties to an ERISA plan should not be able to contract
away statutory rights that are provided by ERISA. See, e.g., Oral
Argument Recording at 19:53–20:15 (“[I]n a future case, if it came
up, we would take the position that contract-creator requirements
for statutory claims would be subject to an awful lot of judicial
scrutiny; we don’t believe that . . . by virtue of contract, plaintiffs
or employers should be able to contract away or force their employees to contract away their rights under ERISA.”). And in at
least some scenarios, a contractual exhaustion requirement can be
excused in a suit based on a federal statute. See, e.g., Clayton v. Int’l
Union, United Auto., Aerospace, and Agr. Implement Workers of Am.,
451 U.S. 679, 689–93 (1981); Glover v. St. Louis-S. F. Ry. Co., 393 U.S.
324, 329–31 (1969).
Putting Williams aside, we do not think that the exhaustion
language in the arbitration clause is relevant. The simple reason is
that no one has moved to compel arbitration.
IV
ERISA does not require administrative exhaustion of statutory claims, including breach of fiduciary duty claims, and the plan
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here did not mandate exhaustion. We reverse the district court’s
order of dismissal and remand the case to the panel for any further
proceedings that may be necessary.
REVERSED & CASE REMANDED TO THE PANEL.