When a plan participant is denied a retirement plan benefit, he is required under ERISA to ask the plan, usually through a plan administrator or other fiduciary, to review the denial before he can file a complaint in court. This is referred to as exhausting the plan’s administrative remedies. These administrative remedies and procedures that a plan participant must follow are laid out in the governing plan document and in the summary plan description. This process allows the plan administrator to reconsider its position with perhaps additional information, explanation or evidence. Once the participant gets to a “final” denial, he can then file a complaint in court. Typically, a claim is filed when a participant believes he is entitled to a benefit, or more of a benefit, and the plan tells him he is not. However, when a plan participant believes a fiduciary to the retirement plan has breached a fiduciary duty under ERISA, the question of whether a participant must exhaust the plan’s administrative remedies is unresolved and depends on the jurisdiction where the case is filed.

While the majority of courts of appeals and district courts have found no requirement to exhaust administrative remedies for breaches of fiduciary duty claims, there are two circuits that have ruled the opposite. In a fairly recent case, Fleming v. Rollins, Inc., No. 19-cv-5732 (N.D. Ga. Nov. 23, 2020), the Eleventh Circuit confirmed again its minority stance that exhaustion is required for breach of fiduciary duty claims. Citing Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir. 2006). The Second Circuit, on the other hand, has not yet directly addressed the question; however, numerous circuit courts within the Second Circuit have routinely found no exhaustion requirement for breach of fiduciary duty claims.

To be sure, this is not deterring defense attorneys from bringing motions to dismiss on the basis of failure to exhaust. In the decision, Savage v. Sutherland Global Services, Inc., 2021 WL 726788 (W.D.N.Y., 2021) defendants argued exhaustion was required for statutory ERISA claims because the exhaustion requirement is specifically written into the plan document. The court was not impressed with the argument explaining “while plan fiduciaries may have expertise in interpreting the terms of the plan itself, statutory interpretation is the province of the judiciary.” Savage at 4, quoting De Pace v. Matsushita Elec. Corp. of America, 257 F.Supp.2d 543, 557 (E.D.N.Y. 2003).