What Is Invited Error in a DOL 401(k) Dispute?

Invited error starts where passive omission ends. A party that affirmatively asks a court or tribunal to take a particular course can lose the right to attack that same course as error after the result turns unfavorable.

That is materially different from forgetting to object.

A missed objection can create a preservation or forfeiture problem. An invited error can be harder to escape because the record shows that the complaining party helped produce the ruling.

The practical question is not:

Did the party lose?

It is:

What exactly did the party ask the lower tribunal to do, and is that the same act the party now calls error?

That comparison matters in DOL and ERISA disputes even though the clearest federal examples arise from jury instructions and verdict forms.

Invited Error, Waiver and Forfeiture Are Related but Not Identical

INV-226 separates waiver from forfeiture.^[13]

That distinction should remain intact here.

The categories can overlap.

A party that expressly requests a particular instruction may both:

• invite the instruction
• waive a contrary position.

But the labels answer different questions.

Invited error focuses on the relationship between:

the party's affirmative litigation conduct

and:

the ruling challenged on review.

Forfeiture can occur with no affirmative request at all.

That is why this statement is too broad:

"The party did not object, so the error was invited."

Silence alone is usually not the clearest invited-error fact pattern.

United States v. Wells Recognizes the Federal Doctrine

The Supreme Court discussed invited error in United States v. Wells.^[1]

The Court noted the broader appellate principle that a party generally may not complain on appeal about an error the party itself invited or provoked the district court to commit.^[1]

That principle is useful.

The limitation in Wells is just as important.

The Supreme Court was deciding whether procedural doctrines controlling a party's ability to shift positions between trial and appellate courts could prevent the Supreme Court itself from reaching a properly presented issue.^[1]

The answer was no.

So Wells should not be reduced to:

"Invited error eliminates judicial power."

It does not.

The doctrine ordinarily regulates appellate review of a party's own litigation conduct.

It is not a substitute for subject-matter jurisdiction analysis.

Invited Error Is Not a Jurisdictional Doctrine

A court either has subject-matter jurisdiction or it does not.

The parties cannot create federal judicial power by:

• consent
• stipulation
• silence
• tactical agreement.

INV-214 covers that problem.

Invited error operates differently.

Suppose a party asks a district court to use Procedure A.

The district court has jurisdiction over the case.

The court uses Procedure A.

The party loses and argues on appeal:

"Using Procedure A was reversible error."

That can raise invited error.

Now change one fact.

Congress gave exclusive review of the agency action to a federal court of appeals, but both sides ask a district court to decide the merits.

The parties' request cannot create subject-matter jurisdiction in the district court.

Calling the jurisdictional defect invited error would obscure the controlling problem.

Agreement cannot manufacture adjudicatory power Congress withheld.

City of Springfield v. Kibbe Shows the Prudential Concern

City of Springfield v. Kibbe involved a jury-instruction dispute.^[2]

The Supreme Court observed that there would be a serious prudential objection to reversing a judgment because of instructions that the petitioner had accepted and itself requested.^[2]

That formulation captures the basic institutional concern.

A litigant should not be able to:

1. choose a procedural course
2. see whether it produces a favorable result
3. attack that same course only after the result proves unfavorable.

The problem is not merely inconsistency.

It is strategic asymmetry.

The party would receive:

the upside of its requested procedure

without accepting:

the downside if that procedure hurts.

Invited-error doctrine limits that option.

McCaig Gives a Clean Fifth Circuit Civil Example

McCaig v. Wells Fargo Bank is especially useful because it is a civil Fifth Circuit case rather than a criminal prosecution.^[3]

The jury was asked a combined question covering several possible violations of the Texas Debt Collection Act.

On appeal, Wells Fargo argued that the combined structure created a problem because the reviewing court could not tell which theory supported the jury's yes answer.^[3]

That complaint might have had procedural significance.

The record created a larger problem.

During preparation of the verdict form, the district judge questioned whether the possible violations should be placed together.

Wells Fargo's counsel expressly endorsed the combined structure, saying in substance that if the question were redrafted, that was how counsel would draft it.^[3]

After an adverse verdict, Wells Fargo attacked that same structure.

The Fifth Circuit refused.

The court applied the principle that a party cannot complain on appeal about an error it induced the district court to commit.^[3]

The Exact Endorsement in McCaig Mattered

McCaig is stronger than a case involving silence.

Counsel did not merely fail to object.

Counsel did not merely say:

"No position."

Counsel affirmatively endorsed the structure later challenged.

That creates a clean sequence:

court proposes structure → party endorses structure → court uses structure → party loses → party attacks structure.

That is the pattern a litigation reviewer should look for.

The presence of an adverse result is not enough.

The party's contribution to the challenged ruling is the key.

Can a Later Objection Cure an Earlier Invitation?

Not automatically. McCaig shows why the record must be read with precision.^[3]

Wells Fargo later objected to the sufficiency of the evidence supporting parts of the question.

That did not necessarily undo the earlier endorsement of the question's combined form.

Those were different objections.

One concerned:

whether particular theories had enough evidence.

The later appellate complaint concerned:

the structure of combining theories within one question.

A preservation memo should therefore avoid this shortcut:

"There was an objection somewhere, so invited error cannot apply."

The correct comparison is issue-specific.

What did the party endorse?

What did the party later oppose?

Do those propositions actually conflict?

Garcia-Ascanio Makes the Difference Between Silence and Invitation Clearer

Garcia-Ascanio v. Spring Independent School District involved a civil jury-instruction challenge in the Fifth Circuit.^[4]

The appellant had not merely failed to make the Rule 51 objection needed for ordinary review.

The parties had jointly requested the instructions the appellant later challenged.^[4]

The Fifth Circuit noted that ordinary failure to preserve an instruction can lead to plain-error analysis.

It then identified the stronger problem:

the appellant helped request the challenged instruction.^[4]

That moved the issue into invited-error territory.

The distinction matters.

Unpreserved error

The party did not properly object.

Possible result:

limited plain-error review, depending on the governing rule and circuit.

Invited error

The party affirmatively requested or induced the challenged ruling.

Possible result:

appellate complaint barred, subject to whatever narrow exception controlling circuit law recognizes.

Those are not the same procedural posture.

Plain Error Is Not a Dependable Escape Hatch After Invitation

Federal Rule of Civil Procedure 51 governs jury instructions.^[7]

A party ordinarily preserves an objection by stating distinctly:

• the matter objected to
• the grounds.

Rule 51(d)(2) permits a court to consider an unpreserved plain error in instructions when the error affects substantial rights.^[7]

That provision can create a tempting but unsafe assumption:

"Even if the instruction was not preserved, plain error remains available."

Garcia-Ascanio shows why that is incomplete.^[4]

An unpreserved instruction and an invited instruction can be treated differently.

A party that simply failed to object may ask for the narrow plain-error route.

A party that jointly requested the instruction faces the additional invited-error barrier.

The practical rule is:

Do not assume that Rule 51(d)(2) neutralizes affirmative invitation.

The Fifth Circuit Uses Manifest-Injustice Language

Garcia-Ascanio stated that the Fifth Circuit would not reverse on the basis of invited error absent manifest injustice.^[4]

Earlier Fifth Circuit cases use similar language.

That qualification should be reported carefully.

It does not mean:

"Every invited error gets ordinary appellate review if the appellant alleges unfairness."

The standard is substantially more demanding.

It also should not be described as a universal national test.

Invited-error formulations vary across circuits and procedural settings.

For a DOL or ERISA case in the Fifth Circuit, the circuit's own cases control.

For a case elsewhere, the local appellate doctrine must be checked.

TQ Delta Shows the Doctrine Is Still Being Applied in 2026

The Federal Circuit applied invited-error principles again in April 2026 in TQ Delta, LLC v. CommScope Holding Company, Inc.^[5]

The case involved patent damages, not ERISA.

Its procedural lesson is directly transferable.

TQ Delta challenged a damages instruction after having repeatedly proposed and endorsed the relevant language below.^[5]

The Federal Circuit cited McCaig and concluded that a party that affirmatively advocated the challenged instruction could not complain about it on appeal.^[5]

The value of TQ Delta is not subject-matter similarity.

It is recency.

The basic rule remains active in modern federal civil appellate practice:

repeated advocacy for the challenged ruling can matter more than the elegance of the later appellate objection.

Rule 46 Gives the Basic Recordkeeping Rule for Nonjury Rulings

Most DOL rule challenges do not end in jury verdicts.

Federal Rule of Civil Procedure 46 is therefore more broadly useful than Rule 51.^[6]

Rule 46 says a formal exception is unnecessary.

When the court makes or is asked to make a ruling, a party needs to state:

• the action it wants the court to take, or
• its objection
• and the grounds for that objection.^[6]

That simple rule produces a practical discipline.

For every material ruling, the record should show whether the party:

requested accepted objected reserved or remained silent.

Those states are not interchangeable.

Invited Error Can Arise Outside Jury Instructions

The doctrine is frequently discussed in instruction cases because jury-charge conferences create unusually clear records.

But the logic is broader.

A party can potentially induce error through positions involving:

• evidentiary rulings
• verdict forms
• stipulations
• proposed orders
• requested remedies
• agreed procedures
• sequencing of issues
• remand requests
• scope of relief.

The decisive question remains factual:

Did the party cause or affirmatively endorse the same ruling now challenged?

A bench trial does not eliminate that possibility.

Neither does an administrative proceeding.

A Stipulation Needs to Be Read for What It Actually Says

Suppose a plan sponsor and DOL stipulate that Exhibit 14 may be admitted:

"for the limited purpose of showing notice."

The court admits it on that basis.

After losing, the sponsor argues:

"The court erred merely by admitting Exhibit 14 for notice."

That is a serious invited-error problem.

Now change the appellate argument:

"The court used Exhibit 14 as proof that the underlying conduct actually occurred, even though the stipulation limited it to notice."

That is different.

The party may not be attacking the ruling it invited.

It may be attacking a later use outside the agreed scope.

The document matters.

The exact language matters more.

Requested Remand Can Create the Same Problem

Assume a trade association challenges a DOL final rule.

It tells the district court:

"If the court finds the record inadequate, remand only Issue X to the Department and retain the rest."

The court does exactly that.

The association later argues:

"The court committed reversible error by limiting remand to Issue X."

The appellate court will examine what the association asked for below.

A party cannot safely treat a requested remedy as provisional merely because the strategic consequences later change.

That does not mean every requested remand forecloses every later appellate issue.

The exact request and exact complaint still have to match.

United States v. Buehler Is a Useful DOL/ERISA Boundary Example

United States v. Buehler arose from conduct involving an ERISA plan and a Department of Labor audit.^[11]

The Fifth Circuit noted that the parties disputed whether the challenged evidentiary issue had been:

• preserved
• waived
• or invited.^[11]

The court did not need to choose among those classifications.

It concluded that the evidentiary ruling survived even under the more favorable abuse-of-discretion standard.^[11]

That makes Buehler useful for one reason:

DOL/ERISA litigation can present the same preservation taxonomy.

It is not authority for an ERISA-specific invited-error test.

A careful article should not turn:

"the court noted the dispute"

into:

"the court held invited error applies whenever a DOL audit is involved."

It did not.

DOL Administrative Review Creates a Separate Preservation Layer

DOL's own procedures can define what must be raised in an administrative appeal.

For specified ERISA Section 502(c)(2) penalty proceedings, 29 CFR 2570.69 allows Secretary review when a party files a timely notice of appeal.^[12]

The notice must state with specificity the issue or issues on which review is sought.^[12]

That is a preservation rule.

If a party appeals only:

penalty calculation

and later tries to litigate:

underlying liability,

the first question is whether the liability issue was preserved under the governing administrative rule.

That omission is not automatically invited error.

Nothing about mere omission proves that the party affirmatively asked the Secretary to decide liability in the supposedly erroneous way.

Omitted Issue and Invited Issue Are Opposites in an Important Sense

The difference can be stated simply.

Omitted issue

The party failed to put an argument before the reviewing tribunal.

That raises:

• forfeiture
• issue preservation
• exhaustion-related questions, depending on the source.

Invited issue

The party affirmatively asked the tribunal to adopt the position later attacked.

That raises:

• invited error
• possibly waiver.

One doctrine concerns:

too little litigation conduct.

The other often concerns:

affirmative litigation conduct pointing the wrong way.

Conflating them makes the procedural record harder to analyze.

Invited Error Does Not Enlarge DOL's Statutory Authority

Suppose a regulated party argues:

"DOL should interpret ERISA Section X to authorize power Y."

DOL adopts that interpretation.

The party later challenges power Y as beyond the statute.

The government responds:

"Invited error. You asked for this interpretation."

That response does not automatically resolve the statutory-authority issue.

An agency's power comes from law.

A private party cannot enlarge federal statutory authority merely by asking the agency to act.

The party's earlier position can matter to:

• waiver
• estoppel
• preservation
• remedial discretion
• credibility.

It does not amend ERISA.

That boundary is particularly important after Loper Bright because statutory authority is a question for independent judicial interpretation, not a matter created by party consent.

Party Agreement Cannot Turn an Unlawful Agency Power Into a Lawful One

The same point can be seen with a more concrete example.

Assume ERISA authorizes DOL to regulate:

A and B.

An industry petitioner asks DOL to regulate:

C

as part of a negotiated solution.

DOL adopts the request.

A later challenger argues that Congress never authorized DOL to regulate C.

The fact that a regulated entity requested the policy may be relevant to the equities and procedural history.

It does not add the word:

C

to the statute.

Invited-error doctrine should not be stretched into a doctrine of delegated legislative power.

Chenery Solves a Different Problem

SEC v. Chenery addresses judicial review of agency reasoning.^[15]

A court ordinarily reviews agency action on the grounds the agency itself invoked.

Suppose DOL issues a final rule based on rationale A.

In court, agency counsel abandons A and offers rationale B.

The challenger objects.

That is not primarily an invited-error problem just because the challenger discussed B during briefing.

The central issue can be whether the court may sustain the agency action on a post-hoc rationale.

That is a Chenery problem.

Doctrine labels should follow the legal defect.

Harmless Error Asks Whether the Mistake Mattered

Federal Rule of Civil Procedure 61 requires courts to disregard errors that do not affect substantial rights.^[8]

That is harmless-error analysis.

It answers:

Did the error materially affect the proceeding?

Invited error answers:

Did the complaining party help cause the error?

The two inquiries can coexist.

An alleged error can be:

• invited and harmless
• invited and prejudicial
• uninvited and harmless
• uninvited and prejudicial.

A procedural tracker should never use one field for both.

APA Section 706 Has Its Own Prejudicial-Error Instruction

Administrative-law review includes a parallel harmless-error concept.

APA Section 706 directs reviewing courts to take due account of the rule of prejudicial error.^[9]

Shinseki v. Sanders explains that this language reflects the ordinary civil harmless-error principle.^[10]

That matters in a DOL rule challenge.

A challenger may prove:

DOL committed procedural error.

The next question can still be:

Did that error prejudice the challenger or affect the agency process in a legally meaningful way?

That is not invited error.

It is prejudicial-error analysis.

Who Caused the Error and Whether It Mattered Must Be Separated

Consider four scenarios.

This matrix prevents a common analytical mistake.

A court does not need to decide every doctrine if one is dispositive.

But a legal memo should know which one did the work.

Worked Example: Sponsor Jointly Requests an Instruction

Private ERISA fiduciary case reaches a jury on a disputed factual issue.

Both parties jointly submit this instruction:

"A fiduciary breach occurs whenever investment performance falls below the benchmark for one year."

The court gives it.

Sponsor loses.

On appeal, sponsor argues the instruction misstated ERISA's prudence standard.

The merits objection may be substantial.

The procedural problem is immediate.

The sponsor jointly requested the language.

That is far closer to Garcia-Ascanio than to ordinary forfeiture.^[4]

The first appellate question should be invited error.

Worked Example: Sponsor Merely Failed to Object

Same instruction.

This time the court drafts it.

Sponsor receives the proposed charge but says nothing.

Sponsor loses and appeals.

Now the record lacks affirmative endorsement.

The issue may be unpreserved under Rule 51.^[7]

Plain-error review may or may not be available.

Calling it invited error solely because counsel remained silent skips an important distinction.

Worked Example: DOL Challenger Requests Narrow Relief

Trade group challenges three parts of a final rule:

A, B and C.

At summary judgment, it tells the court:

"If the court agrees on A, vacate only A and leave B and C intact."

The court follows that request.

After prevailing on A but losing on B and C, the group argues:

"The court should have vacated the entire rule because A was inseverable."

The appellate record now matters.

If the group affirmatively requested partial relief, a later demand for reversal based on the court's use of that same partial-remedy structure can encounter invited-error or waiver arguments.

That does not answer severability by itself.

It can constrain who gets to complain about the remedy chosen.

Worked Example: Party Objects, Then Expressly Changes Position

DOL seeks admission of an investigative letter.

Sponsor objects.

After argument, sponsor says:

"The objection is withdrawn. The exhibit may come in without limitation."

Court admits it.

On appeal, sponsor challenges admission.

The earlier objection does not necessarily save the issue.

The later express withdrawal can matter more.

The record shows a deliberate change in position.

Depending on circuit doctrine, that can support waiver and invited-error analysis rather than ordinary preserved-error review.

Worked Example: DOL Appeal Omits Liability

Respondent loses a Section 502(c)(2) proceeding before the ALJ.

Its notice under 29 CFR 2570.69 identifies only:

the amount of the penalty.^[12]

Later the respondent argues that the Secretary erred by not reviewing liability.

The better starting doctrine is:

issue preservation under the regulation.

The respondent did not necessarily ask the Secretary to decide liability incorrectly.

It may have failed to put liability before the Secretary at all.

That is why omission is not automatically invitation.

Worked Example: Both Sides Ask the Wrong Court to Decide

DOL and challenger jointly ask a district court to decide an agency action even though Congress placed exclusive review in a court of appeals.

The district court agrees.

One side later says:

"The district court lacked subject-matter jurisdiction."

The response cannot simply be:

"Invited error—the parties asked the court to decide."

Subject-matter jurisdiction is a separate legal gate.

Consent cannot repair the defect.

The correct analysis begins with the jurisdiction statute.

Worked Example: Agency Counsel Supplies a New Rationale

DOL's final rule says:

"ERISA Section X authorizes the rule because of rationale A."

In litigation, DOL counsel says:

"Rationale A is unnecessary. The rule should be upheld because of rationale B."

The challenger had mentioned B in a comment letter years earlier.

DOL argues:

"The challenger invited B."

That does not erase the Chenery problem if the agency itself did not rely on B when taking final action.^[15]

A private comment is not a substitute for agency reasoning.

Invited Error Is Not Judicial Estoppel

INV-224 covers judicial estoppel.

Judicial estoppel usually asks whether a party successfully advanced one position and later takes a clearly inconsistent one in a way that threatens adjudicative integrity.

Invited error can be narrower and more immediate.

A party asks the trial court to use Procedure A.

The court uses Procedure A.

The party attacks Procedure A on appeal.

No separate earlier lawsuit is required.

No broad inquiry into prior tribunal acceptance needs to be imported if invited-error doctrine already fits the record.

Invited Error Is Not Equitable Estoppel

INV-225 covers equitable estoppel.

Equitable estoppel focuses on:

• representation
• reasonable reliance
• detrimental change in position.

Invited error does not ordinarily require the opposing party to prove that it relied economically on the request.

The critical relationship is between:

the appellant's own request

and:

the challenged judicial act.

The words sound similar because both can involve inconsistency.

The legal machinery is different.

Invited Error Is Not Claim or Issue Preclusion

INV-223 covers preclusion.

Claim and issue preclusion require an earlier adjudication with specified finality and identity requirements.

Invited error can arise within one continuous case.

No second lawsuit is necessary.

A party can invite a verdict-form error on Monday and be barred from complaining about it in the same case's appeal months later.

That is not res judicata.

Invited Error Is Not Just "You Changed Your Mind"

Litigation positions evolve.

Facts develop.

Law changes.

A party can refine a theory without necessarily inviting error.

The doctrine is strongest when the record supports a close match:

requested act below = challenged act on appeal.

A later argument that addresses a different issue is not automatically barred.

That is why McCaig's distinction between the form of the verdict question and evidence supporting the theories matters.^[3]

Specificity protects both sides from overclaiming the doctrine.

The Best Evidence Is Usually the Transcript

Invited-error disputes are unusually record-dependent.

The decisive material can be:

• charge conference transcript
• hearing transcript
• written proposed order
• joint stipulation
• motion
• response
• email incorporated into the record
• proposed findings
• notice of appeal
• administrative appeal statement.

A summary such as:

"Counsel agreed"

is not enough.

The file should preserve the exact words.

Difference between:

"No objection"

and:

"That is the instruction requested"

can be outcome-determinative.

A Request-to-Appeal Comparison Should Be Built Before Briefing

Before relying on invited error, create two columns.

Column A: lower proceeding

Record:

• exact requested action
• exact proposed language
• whether request was joint
• whether request was conditional
• any reservation of rights
• later objection
• later withdrawal
• court's actual ruling.

Column B: appellate complaint

Record:

• exact proposition called error
• relief requested on appeal
• whether complaint targets form, substance, evidence or remedy
• whether intervening law changed the issue
• whether the lower court went beyond the request.

Then compare the columns.

The doctrine should not be applied from memory.

Conditional Requests Need Special Care

A party may say:

"If the court rejects the primary argument, the alternative instruction should read as follows."

That is not necessarily the same as conceding:

the alternative is legally correct.

Conditional advocacy can preserve an alternative position without surrendering a primary objection.

The transcript should show that distinction.

A clean reservation can matter:

"This alternative is proposed only if the court overrules the standing objection."

Without that language, the record can become ambiguous.

The Court Going Beyond the Request Can Break the Match

Assume a party asks for:

a 30-day extension.

The court grants:

a 120-day extension plus a stay of all discovery.

The party later challenges the discovery stay.

The response:

"You invited the 30-day extension"

does not automatically establish that the party invited the separate 120-day discovery stay.

The challenged action must be traced to the party's conduct with enough precision.

Invited error is not a license to attribute every consequence of a ruling to the party that requested some part of it.

Intervening Law Can Change the Appellate Question

Suppose a party requested Procedure A because controlling circuit law required A.

After judgment, the Supreme Court overrules that precedent.

The appeal then challenges A under the new controlling rule.

That posture is materially different from pure strategic reversal.

Whether invited-error doctrine still bars review can depend on:

• circuit law
• nature of the right
• how compulsory the earlier precedent was
• preservation language
• scope of appellate review.

The safe statement is not:

"Any prior request permanently locks the party in."

The law can change.

The doctrine is strong, not metaphysical.

A Procedural Rights File Should Track Five Different Events

For each disputed ruling, record:

1. Request — what action was affirmatively sought?
2. Objection — what action was opposed and on what ground?
3. Ruling — what did the tribunal actually do?
4. Reservation — did the party preserve a contrary position?
5. Appeal — what exact act is now called error?

Most invited-error mistakes arise because only:

objection

and:

appeal

are tracked.

The request disappears from the file summary.

That omission can be fatal to the analysis.

A Practical Doctrine Matrix

That matrix is more useful than calling every procedural problem:

waiver.

Fast Answers

What is invited error?

A federal appellate doctrine under which a party generally cannot obtain reversal based on an error the party affirmatively invited, induced or endorsed below.^[1][3]

Is failure to object automatically invited error?

No. Failure to object is ordinarily analyzed first as preservation or forfeiture. Invited error is strongest when the party affirmatively helped cause the challenged ruling.

What did United States v. Wells say?

The Supreme Court recognized the appellate principle that a party ordinarily may not complain of an error it invited or provoked, while making clear that such doctrines did not eliminate the Supreme Court's own authority to reach a properly presented issue.^[1]

What happened in McCaig?

Wells Fargo expressly endorsed the combined verdict-question structure and later attacked that same structure after an adverse verdict. The Fifth Circuit treated the complaint as invited error.^[3]

What happened in Garcia-Ascanio?

The appellant jointly requested the jury instructions later challenged. The Fifth Circuit treated that conduct as invited error rather than merely an unpreserved objection.^[4]

Does the Fifth Circuit recognize any escape from invited error?

Its cases use narrow manifest-injustice language.^[4] That formulation should not be treated as a universal nationwide rule.

What did TQ Delta add in 2026?

The Federal Circuit applied invited-error principles where the appellant repeatedly proposed and endorsed the damages-instruction language later challenged.^[5]

Does Rule 51 plain error always remain available?

No. Rule 51 provides a plain-error route for certain unpreserved instructional errors, but affirmative invitation can create a separate barrier.^[4][7]

What does Rule 46 require?

A party should state the action it wants the court to take or its objection and grounds when the ruling is requested or made.^[6]

Is invited error the same as harmless error?

No. Invited error asks who helped cause the ruling. Harmless error asks whether the error affected substantial rights.^[8]

Does the APA have a harmless-error rule?

Yes. Section 706 requires due account of the rule of prejudicial error.^[9][10]

Did Buehler establish an ERISA-specific invited-error doctrine?

No. The Fifth Circuit noted a dispute over preservation, waiver and invited error but did not need to resolve the classification because the evidentiary claim failed under the more favorable standard.^[11]

Is omitting an issue from a DOL Secretary appeal automatically invited error?

No. Under 29 CFR 2570.69, omission can create an issue-preservation problem. Invitation requires affirmative conduct causing or endorsing the challenged result.^[12]

Can parties create subject-matter jurisdiction by inviting a court to decide?

No.

Can a regulated party's request enlarge DOL's statutory authority?

No. Agency authority comes from Congress and governing law.

Is a new litigation rationale from DOL counsel an invited-error issue?

Not necessarily. If the agency did not rely on the rationale when it acted, Chenery can be the more direct doctrine.^[15]

What is the safest one-sentence rule?

Before calling an appellate issue invited error in a DOL or 401(k) dispute, place the exact request or endorsement below next to the exact ruling challenged on appeal; if they do not materially match, analyze preservation, waiver, forfeiture, harmless error, jurisdiction or another doctrine instead.

Sources & References

1. Supreme Court / Justia: United States v. Wells, 519 U.S. 482 (1997) — https://supreme.justia.com/cases/federal/us/519/482/
2. Supreme Court / Legal Information Institute: City of Springfield v. Kibbe, 480 U.S. 257 (1987) — https://www.law.cornell.edu/supremecourt/text/480/257
3. U.S. Court of Appeals for the Fifth Circuit / Justia: McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463 (5th Cir. 2015) — https://law.justia.com/cases/federal/appellate-courts/ca5/14-40114/14-40114-2015-06-10.html
4. U.S. Court of Appeals for the Fifth Circuit / Justia: Garcia-Ascanio v. Spring Independent School District, No. 22-20363 (5th Cir. July 17, 2023) — https://law.justia.com/cases/federal/appellate-courts/ca5/22-20363/22-20363-2023-07-17.html
5. U.S. Court of Appeals for the Federal Circuit: TQ Delta, LLC v. CommScope Holding Company, Inc., No. 24-1587 (Fed. Cir. Apr. 24, 2026) — https://www.cafc.uscourts.gov/opinions-orders/24-1587.OPINION.4-24-2026_2691225.pdf
6. Legal Information Institute: Federal Rule of Civil Procedure 46 — Objecting to a Ruling or Order — https://www.law.cornell.edu/rules/frcp/rule_46
7. Legal Information Institute: Federal Rule of Civil Procedure 51 — Instructions to the Jury; Objections; Preserving a Claim of Error — https://www.law.cornell.edu/rules/frcp/rule_51
8. Legal Information Institute: Federal Rule of Civil Procedure 61 — Harmless Error — https://www.law.cornell.edu/rules/frcp/rule_61
9. Legal Information Institute / U.S. Code: 5 U.S.C. §706 — Scope of Review — https://www.law.cornell.edu/uscode/text/5/706
10. Supreme Court / Legal Information Institute: Shinseki v. Sanders, 556 U.S. 396 (2009) — https://www.law.cornell.edu/supct/html/07-1209.ZO.html
11. U.S. Court of Appeals for the Fifth Circuit: United States v. Buehler, No. 11-10367 (5th Cir. July 18, 2012) — https://www.ca5.uscourts.gov/Opinions/unpub/11/11-10367.0.wpd.pdf
12. Electronic Code of Federal Regulations / Legal Information Institute: 29 CFR §2570.69 — Review by the Secretary — https://www.law.cornell.edu/cfr/text/29/2570.69
13. Supreme Court / Legal Information Institute: United States v. Olano, 507 U.S. 725 (1993) — https://www.law.cornell.edu/supremecourt/text/507/725
14. Supreme Court / Legal Information Institute: Kontrick v. Ryan, 540 U.S. 443 (2004) — https://www.law.cornell.edu/supremecourt/text/540/443
15. Supreme Court / Justia: SEC v. Chenery Corp., 318 U.S. 80 (1943) — https://supreme.justia.com/cases/federal/us/318/80/

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