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Audio: Oral Argument in Texas v. Azar Before the Fifth Circuit Court of Appeals (MP3)

Recording of oral argument on July 9, 2019 (one hour and 46 minutes). [Texas v. Azar, No. 19-10011 (5th Cir. oral arg. Jul. 9, 2019)]

Fifth Circuit Accepts DOL Motion to Dismiss Fiduciary Rule Appeal

"In a move that wasn't unexpected, the U.S. Court of Appeals for the Fifth Circuit granted the [DOL's] motion to withdraw its appeal of a court challenge(s) to the so-called fiduciary rule issued during the Biden administration." [FACC. v. DOL, No. 24-0163 (E.D. Tex. Jul. 25, 2024; on appeal to 5th Cir. No. 24-40637; motion to dismiss granted Nov. 28, 2025)]

Fifth Circuit Opinion Vacating and Remanding District Court Dismissal of Challenge to DOL's ESG Regs (PDF)

"Does ERISA allow retirement plan managers to consider factors that are not material to financial performance when making investment decisions affecting workers' retirement savings? We do not venture an answer -- at least not yet. This case, while featuring two administrations' ping-ponging directives, turns fundamentally on the words that Congress chose: What investment duties does ERISA prescribe and proscribe for plan fiduciaries? In upholding the [DOL's] reading, the district court relied upon the decades-old Chevron deference doctrine. But eleven days before we heard oral argument in this appeal, the Supreme Court decided two landmark cases ... that discarded Chevron and pared back agencies' leeway to interpret their own statutory authority. Given the upended legal landscape, and our status as a court of review, not first view, we vacate and remand so that the district court can reassess the merits." [Utah v. Su, No. 23-11097 (5th Cir. Jul. 18, 2024)]

Text of Fifth Circuit Opinion Reversing District Court's Dismissal of BP Stock Drop Claim (PDF)

"[T]he district court here erred when it altered the language of Fifth Third to reach its holding. In Fifth Third, the Supreme Court stated that the plaintiff's proposed alternative must be one that 'a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.' ... But here the district court stated that it could not determine, 'on the basis of the pleadings alone, that no prudent fiduciary would have concluded that [the alternatives] would do more good than harm' ... These statements are not equivalent. Under the Supreme Court's formulation, the plaintiff bears the significant burden of proposing an alternative course of action so clearly beneficial that a prudent fiduciary could not conclude that it would be more likely to harm the fund than to help it. Here, the stockholders have failed to do so." [Whitley v. BP, No. 15-20282 (5th Cir. Sept. 26, 2016)]

Fifth Circuit Reverses Award of Benefits to Stepchildren in Absence of Valid Beneficiary Designation (PDF)

Participant died without a valid beneficiary designation; the Thrift Plan document provided for distribution of benefits to various relatives. The Plan Administrator interpreted the term "children" as used in the plan to mean biological or legally adopted children. The Fifth Circuit Court of Appeals ruled that the district court erred when it set aside the Plan Administrator's decision and granted judgment for the deceased's stepchildren, because (1) the Plan Administrator's interpretation of the term "children" was legally correct; and (2) nothing in the plan or ERISA required the Plan Administrator to incorporate the concept of equitable adoption into the plan's definition of "children." [Herring v. Campbell, 5th Cir. No. 11-40953 (August 7, 2012)]

Text of Fifth Circuit Opinion: ACA Individual Mandate Is Unconstitutional; Remanding to District Court as to Severability (PDF)

98 pages. "First, there is a live case or controversy because the intervenor-defendant states have standing to appeal and, even if they did not, there remains a live case or controversy between the plaintiffs and the federal defendants. Second, the plaintiffs have Article III standing to bring this challenge to the ACA; the individual mandate injures both the individual plaintiffs, by requiring them to buy insurance that they do not want, and the state plaintiffs, by increasing their costs of complying with the reporting requirements that accompany the individual mandate. Third, the individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power. Fourth, on the severability question, we remand to the district court to provide additional analysis of the provisions of the ACA as they currently exist.... "We [direct] the district court to employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate.... It may still be that none of the ACA is severable from the individual mandate, even after this inquiry is concluded. It may be that all of the ACA is severable from the individual mandate. It may also be that some of the ACA is severable from the individual mandate, and some is not. But it is no small thing for unelected, life-tenured judges to declare duly enacted legislation passed by the elected representatives of the American people unconstitutional. The rule of law demands a careful, precise explanation of whether the provisions of the ACA are affected by the unconstitutionality of the individual mandate as it exists today.... "Remand is appropriate in this case for a second reason: so that the district court may consider the federal defendants' new arguments as to the proper scope of relief in this case. The relief the plaintiffs sought in the district court was a universal nationwide injunction ... Now [the defendants] have changed their litigation position to argue that relief in this case should be tailored to enjoin enforcement of the ACA in only the plaintiff states -- and not just that, but that the declaratory judgment should only reach ACA provisions that injure the plaintiffs." [Texas v. U.S., No. 19-10011 (5th Cir. Dec. 18, 2019)]

Fifth Circuit Finds Broad Fiduciary Responsibility in the Handling of U.S. Plan Document Requests

In Kujanek v. Houston Poly Bag Ltd, the Court of Appeals for the Fifth Circuit required a profit sharing administrator who had not responded to requests for documents and distribution/rollover forms to make up almost $184,000 in account losses incurred by the participant while his distribution was delayed.'

Text of Fifth Circuit Opinion Upholding Vacatur of DOL's Rejection of ERISA Coverage for Health Plan of Data-Mining Limited Partnership (PDF)

17 pages. "The key factors the Department ignored were its prior advisory opinions discussing the term 'working owner' and its regulation adopting a definition of the term in a related context.... [T]he Department spills much ink in its response brief either explaining away the prior advisory opinions and the regulation or arguing that the definitions they adopted are consistent with the ones adopted elsewhere. But all those arguments were not made in the final agency action itself and thus aren't 'contemporaneous explanations.' ... They are instead 'impermissible post hoc rationalizations.' ... And these post hoc rationalizations confirm that the action here is arbitrary and capricious."   [Data Marketing Partnership, LP v. DOL, No. 20-11179 (5th Cir. Aug. 17, 2022)]

Text of Fifth Circuit Opinion: Religious Accommodation for Contraceptive Coverage Does Not Violate RFRA (PDF)

"Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith. are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise."

Fifth Circuit Opinion, Extending Stay of Enforcement of OSHA Vaccine Mandate (PDF)

22 pages. "[T]he Mandate's strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a 'grave danger' in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate's stated impetus -- a purported 'emergency' that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to -- is unavailing as well. And its promulgation grossly exceeds OSHA's statutory authority. " [BST Holdings v. OSHA, No. 21-60845 (5th Cir. stay upheld Nov. 12, 2021)]