United States: Exhaustion of Plan Administrative Remedies: Important Considerations Following Hitchcock v. Cumberland

Recently, the Sixth Circuit ruled in Hitchcock v. Cumberland University 403(b) Plan that pension plan participants are not required to exhaust their plan's administrative remedies before pursuing claims alleging statutory violations of the Employee Retirement Income Security Act of 1974, as amended ("ERISA").[i] In so deciding, the Sixth Circuit joined the majority of circuit courts in holding that claims alleging statutory violations of ERISA do not impose the same administrative exhaustion requirements that are applicable to claims seeking to enforce contractual rights under the terms of a plan. By deepening the current split on this issue among the circuit courts, the ruling could have a significant impact on future ERISA litigations.

The Historical and Procedural Background of Cumberland

In Cumberland, the plaintiffs were employees of Cumberland University ("University") who participated in the University's defined contribution pension plan (the "Plan"). Since 2009, the Plan document provided that the University would match employee contributions of up to five percent of an employee's salary. In 2014, the University amended the Plan, replacing the five percent match with a discretionary match, retroactively applicable to 2013. Thereafter, the University announced through email that the discretionary match would be zero percent for both the 2013-2014 and 2014-2015 years.[ii]

In November 2015, the plaintiffs filed a class action against the University and the Plan, alleging, among other claims, that the retroactive adoption of the 2014 Plan amendment constituted a breach of fiduciary duty and a violation of ERISA's anti-cutback provision. In June 2016, the district court dismissed the case without prejudice so that the plaintiffs "may administratively exhaust their claims" before proceeding. The plaintiffs appealed.[iii]

On appeal, the Sixth Circuit concluded that the district court erred in requiring the plaintiffs to exhaust their administrative remedies before filing suit.[iv] Specifically, the Sixth Circuit stated that, while administrative exhaustion serves an important policy purpose when dealing with plan interpretation questions – such as disputes involving benefits claims – such purpose is not served when the claims allege statutory violations of ERISA. According to the Sixth Circuit, it is the courts, not plan administrators, who are best suited to settle disputes "directed to the legality of a plan", not to a mere interpretation of it." Since the plaintiffs in Cumberland conceded that their benefits were properly calculated under the terms of the Plan as written, the Sixth Circuit concluded that it would be futile to force them to pursue the administrative process simply to confirm such undisputed calculation.[v] The court reasoned that, when plaintiffs challenge the legality of a plan's provision, they should not face the same administrative exhaustion requirement as those making claims for benefits. The key question, the Sixth Circuit noted, is whether the plaintiffs' claims properly assert statutory violations or instead are "plan-based claims artfully dressed in statutory clothing." And if the latter, then the claims would require administrative exhaustion before the plaintiffs could file suit.[vi]

Sixth Circuit Sides with the Majority of Circuits

In analyzing the nature of a claim, the Sixth Circuit stated that "[t]he relevant inquiry is what forms the basis of [Plaintiffs'] right to relief: the contractual terms of the pension plan or the provisions of ERISA and its regulations." In Cumberland, the Sixth Circuit noted that because the alleged anti-cutback violation was based on "the right to receive accrued benefits which have not been decreased by an illegal amendment," and because the breach of fiduciary duty claim was based on "the right to have a fiduciary discharge his or her duties in accordance with the statute," the plaintiffs' claims were statutory rights granted to them by ERISA.[vii] In contrast, the court stated that if the plaintiff's claims challenged the administrator's interpretations of the contractual terms of the pension plan, then the claim would require administrative exhaustion. Based on its determination that plaintiffs asserted ERISA statutory claims, the Sixth Circuit held that administrative exhaustion was not required before the plaintiffs could proceed with their lawsuit.[viii]

While the precise impact of the Cumberland decision is unclear, the overall trend is clear. The Sixth Circuit has now joined the majority of circuit courts holding that administrative exhaustion is not required for plaintiffs asserting statutory rights under ERISA. These circuits include the Third, Fourth, Fifth, Ninth, Tenth, and D.C. Circuits. Only two circuits – the Seventh and Eleventh Circuits – have held otherwise, requiring plaintiffs to exhaust their claims internally with the plan, even when asserting statutory violations. These latter circuit courts emphasize that administrative exhaustion serves the important function of reducing the number of frivolous ERISA lawsuits. And if the claims eventually are litigated, it aids the litigation process with a more complete factual record compiled by a plan fiduciary.[ix] After the Sixth Circuit's ruling in Cumberland, the Seventh and Eleventh Circuits have now become an even smaller minority than before. And there is little indication that this trend will not continue. Further, it is important to note that the Seventh and Eleventh Circuit decisions were rendered in 1996 and 1985, respectively. It will be informative to see if these circuit courts revisit their position if they are asked to address this issue again. It is also possible that the U.S. Supreme Court will choose to resolve the current split among the circuit courts.

Key Take-Aways for Plan Fiduciaries

The trend in the cases is clear. The majority of circuit courts have held that plaintiffs alleging statutory ERISA claims, as opposed to challenges to the plan administrator's interpretations of the plan, will not be required to exhaust their administrative remedies. However, plan fiduciaries should be aware that some plaintiffs, who are ostensibly subject to the exhaustion requirement, may attempt to circumvent administrative exhaustion prior to filing their lawsuit by framing their ERISA claims as statutory violations rather than as claims of plan interpretation.

To address this concern, plan fiduciaries should consider taking several steps, including: (1) reviewing their claims and appeals procedures to establish guidelines distinguishing ERISA statutory claims from plan interpretive claims; (2) consulting with legal counsel before making benefit decisions; and (3) carefully and thoughtfully articulating in the denial letter the basis for the benefit denial. Of course, while these steps cannot entirely eliminate the possibility that a participant will attempt to circumvent the exhaustion requirement by asserting that he is vindicating an ERISA statutory right and not pursuing a contractual claim under the plan, by adopting and following plan guidelines, the plan fiduciaries may stand a better chance of convincing a court that the action should be dismissed for failing to exhaust administrative remedies.

[i] Hitchcock v. Cumberland University 403(b) DC Plan, 851 F.3d 552, 565 (6th Cir. 2017)

[ii] Id. at 555-556

[iii] Id. at 556-557

[iv] Id. at 561

[v] Id. at 562

[vi] Id. at 565

[vii] Id. at 565

[viii] Id. at 565

[ix] Id. at 564

Exhaustion of Plan Administrative Remedies: Important Considerations Following Hitchcock v. Cumberland

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.