What Is Judicial Estoppel in a DOL 401(k) Rule Challenge?

Judicial estoppel does not punish every changed argument. It targets a narrower problem: a party persuades a tribunal to accept one position, then tries to gain an inconsistent advantage by taking the opposite position when the litigation incentives change.^[1]

That distinction matters in DOL and ERISA disputes because positions can legitimately change for several reasons:

• a later case asks a different legal question
• the factual record changes
• the Supreme Court changes the law
• DOL replaces an old rule with a new final action
• an agency openly changes policy and explains why.

None of those events is automatically judicial estoppel.

The doctrine is strongest when the problem is not evolution but manipulation.

Judicial Estoppel Protects the Adjudicative Process

New Hampshire v. Maine describes judicial estoppel as an equitable doctrine used to protect the integrity of the judicial process.^[1]

The concern is straightforward.

A litigant should not be able to tell Tribunal A:

Position A is correct.

Persuade Tribunal A to act on that representation.

Then tell Tribunal B:

Position A was wrong; Position B is correct.

when Position B is incompatible with the first position and the switch creates an unfair litigation advantage.

The doctrine is therefore different from an ordinary rule against changing one's mind.

Courts expect legal arguments to evolve.

Judicial estoppel is reserved for a more serious inconsistency.

New Hampshire v. Maine Gives Three Important Considerations

The Supreme Court identified three considerations that commonly inform the analysis.^[1]

Is the later position clearly inconsistent with the earlier position?

The doctrine needs a real contradiction.

A changed emphasis is not enough.

A broader argument is not necessarily inconsistent with a narrower one.

A legal theory addressing a different duty can coexist with an earlier theory addressing another duty.

Did the party persuade the earlier tribunal to accept the first position?

This factor goes directly to judicial integrity.

If the first court rejected Position A, a later Position B creates much less risk that the legal system has been manipulated into producing inconsistent determinations.

Would the change create an unfair advantage or unfair detriment?

The doctrine is equitable.

Context matters.

A tactical reversal that lets a party benefit twice from incompatible representations is materially different from a change caused by:

• new law
• corrected facts
• a genuine mistake
• a new agency action
• a different question.

Those Factors Are Not a Mechanical Three-Part Test

New Hampshire expressly refused to create:

inflexible prerequisites or an exhaustive formula.^[1]

That sentence became even more important in 2026.

The Supreme Court's decision in Keathley v. Buddy Ayers Construction rejected a Fifth Circuit approach that had become too mechanical in bankruptcy-related judicial-estoppel cases.^[2]

The lesson reaches beyond bankruptcy at the level of method:

equitable doctrines cannot be reduced to shortcuts that make the relevant circumstances disappear.

That does not mean every circuit now uses identical elements in every context.

It means a rigid formula should not be mistaken for the Supreme Court's own description of judicial estoppel.

Keathley Changed an Important Fifth Circuit Rule in 2026

Keathley involved a Chapter 13 debtor who failed to disclose a personal-injury claim while the bankruptcy remained open.^[2]

When the defendant later invoked judicial estoppel, the Fifth Circuit applied its existing rule.

An omission would count as inadvertent or mistaken only if:

1. the debtor did not know the facts underlying the claim, or
2. the debtor had no hypothetical motive to conceal it.^[2]

That formulation was severe.

A debtor who knew about a claim almost always satisfied the first condition against him.

A debtor also almost always had some theoretical financial motive to keep an asset off the bankruptcy schedules.

The supposed exception therefore approached a presumption.

The Supreme Court unanimously rejected that narrow method.^[2]

Keathley Requires the Totality of the Circumstances

The Court held that determining whether a bankruptcy omission was inadvertent or mistaken requires examination of:

the totality of the circumstances surrounding the omission.^[2]

The lower court could not confine the inquiry to:

• knowledge
• hypothetical motive.

Relevant facts could include the surrounding conduct and evidence explaining what actually happened.

That is a meaningful change for the Fifth Circuit.

Many nationally significant DOL retirement disputes are litigated in Texas.

A Fifth Circuit procedural doctrine can therefore affect retirement-regulation litigation even when the Supreme Court case that changed the doctrine arose outside ERISA.

Do Not Overstate Keathley

Keathley did not decide everything about judicial estoppel.^[2]

The Court expressly assumed without deciding:

• that judicial estoppel applies in the bankruptcy context
• that inadvertence or mistake operates as an exception in that setting.

Its actual holding was narrower.

The Fifth Circuit could not use its rigid knowledge-plus-motive test as the exclusive way to decide whether the omission was inadvertent or mistaken.

That means this statement is too broad:

"Keathley replaced judicial estoppel with a totality test in every federal case."

No.

A better statement is:

Keathley reinforced the equitable, context-dependent character of judicial estoppel and required a totality inquiry for inadvertence or mistake in the bankruptcy-omission setting before the Court.

The distinction matters.

Keathley Also Signals Caution About Automatic Forfeiture

Judicial estoppel can have harsh consequences.

In Keathley, the doctrine had eliminated an entire personal-injury claim before the merits were tried.^[2]

That severity explains why context matters.

An equitable doctrine designed to protect courts should not casually become a windfall generator for an opposing party whenever a litigant made an earlier error.

Justice Sotomayor's concurrence emphasized the totality-of-circumstances character of the doctrine.

Justice Thomas, joined by Justice Gorsuch, went further and questioned the doctrinal foundation of broad modern judicial-estoppel practice.^[2]

Those concurrences do not replace the Court's holding.

They do make one point difficult to ignore:

judicial estoppel should not be treated as automatic claim destruction triggered by a keyword match between two filings.

Different Is Not the Same as Clearly Inconsistent

The most common analytical mistake is to compare two arguments at too high a level.

Suppose a service provider says in Case 1:

"The company performs administrative functions for the plan."

In Case 2 it says:

"The company did not exercise discretionary authority over this investment decision."

Those statements may both be true.

Administrative involvement is not automatically discretionary control over every plan function.

The correct comparison is not:

"Did the party use different language?"

It is:

"Can both propositions logically and legally coexist?"

If yes, judicial estoppel is weak.

Pegram Gives a Supreme Court ERISA Example

Pegram v. Herdrich involved an ERISA dispute over whether treatment decisions made through an HMO structure were fiduciary acts.^[3]

The plaintiff argued that the defendants should be judicially estopped from denying fiduciary status because they had earlier relied on ERISA-related fiduciary status in connection with removal to federal court.^[3]

The Supreme Court did not accept that broad characterization.

The earlier theory could be understood as involving a fiduciary obligation to disclose plan characteristics and physician incentives.

The amended theory concerned responsibility for the incentives and treatment decisions themselves.^[3]

Those duties were not necessarily coextensive.

The Court concluded that the defendants were not estopped from contesting fiduciary status as to the later allegations.^[3]

That is exactly the kind of precision retirement analysis requires.

Pegram's Lesson Is About the Function at Issue

ERISA fiduciary status is functional.

A person can be a fiduciary:

for one purpose

without being a fiduciary:

for every purpose.

That makes judicial-estoppel analysis unusually sensitive to the specific function at issue.

Compare:

• plan administration
• disclosure
• investment selection
• investment advice
• benefit determination
• asset control.

A prior statement about one function may not contradict a later statement about another.

The word:

fiduciary

is too broad to perform the analysis alone.

Feder Is Even More Directly Relevant to 401(k) Litigation

Feder v. Electronic Data Systems arose from overlapping securities and ERISA litigation involving participants in EDS's 401(k) plan.^[4]

The challenge was that the 401(k) participants' ERISA loss-causation theory was broader than the theory advanced in the securities action.

The argument followed:

different loss-causation theory → inconsistent position → judicial estoppel.

The Fifth Circuit rejected it.^[4]

The district court had explained that the positions were:

• different
• but complementary
• not mutually exclusive.^[4]

That difference defeats the core inconsistency premise.

Feder Prevents a Common Multi-Forum Error

Retirement disputes can overlap with:

• securities litigation
• employment litigation
• bankruptcy
• tax disputes
• state-law claims
• DOL administrative proceedings.

The legal standards will not always match.

A participant might reasonably argue:

Securities theory A applies to the market loss.

and separately:

ERISA theory B applies to fiduciary loss to the plan.

The mere existence of two causation models does not prove contradiction.

Feder is useful because it forces the analysis down to the proposition level.

Do the theories negate each other?

If not, calling them "inconsistent" is too quick.

Prior Acceptance Usually Matters More Than Prior Assertion

A party files a brief containing Position A.

The judge rejects Position A.

Two years later, the party advances Position B.

The opponent says:

"Judicial estoppel. They changed positions."

That skips the most important procedural fact.

The first tribunal did not accept Position A.

New Hampshire explains why acceptance matters: the doctrine is concerned with the perception that one court or another was misled and with inconsistent judicial determinations.^[1]

A failed argument creates much less of that risk.

An earlier filing is evidence of what a party argued.

It is not automatically evidence that the judiciary relied on the argument.

Winning the Entire Case Is Not Required

The reverse mistake is also common.

A party can persuade a court to accept one important position yet lose the case for another reason.

Judicial acceptance can still matter.

The useful question is not simply:

Who won the case?

It is:

Did the tribunal adopt the earlier position in a way relevant to its decision?

That may appear in:

• an order
• findings
• a jurisdictional ruling
• summary judgment
• a confirmed plan or decree
• an agency adjudication.

The exact procedural function matters more than the headline result.

Judicial Estoppel Does Not Require the Same Opponent

INV-223 explains why party identity and privity are central to preclusion.

Judicial estoppel is different.

Temple University Hospital v. NLRB criticized analysis that effectively imported same-party requirements from issue preclusion into judicial estoppel.^[5]

The doctrine focuses on the party taking inconsistent positions and the integrity of the adjudicative process.

That means the opposing party in Proceeding 2 need not always be the same opposing party from Proceeding 1.^[5]

This is one of the cleanest differences between:

judicial estoppel

and:

issue preclusion.

Administrative Proceedings Can Matter

Judicial estoppel is not necessarily confined to positions accepted by Article III courts.

Temple University Hospital involved prior labor-board proceedings and whether an inconsistent jurisdictional position could matter before the NLRB.^[5]

The D.C. Circuit emphasized that judicial estoppel and issue preclusion are discrete doctrines and remanded for proper consideration of whether the doctrine was available and should be invoked.^[5]

DOL's own OALJ materials also collect administrative cases in which prior DOL proceedings or positions were evaluated for preclusion or judicial-estoppel consequences.^[10]

For retirement practitioners, that means the litigation history should include more than federal court dockets.

Relevant prior positions can appear in:

• agency adjudications
• ALJ proceedings
• administrative appeals
• consent orders
• other formal tribunals.

Not Every Agency Statement Is a Judicial Position

A DOL:

• press release
• FAQ
• speech
• regulatory agenda entry
• informal email
• technical assistance comment

is not automatically a prior adjudicative position for judicial-estoppel purposes.

Those documents can matter for other reasons.

They may show:

• agency interpretation
• notice
• reliance
• policy history
• inconsistency.

But judicial estoppel is tied to positions taken in adjudicative settings and accepted in a way that implicates tribunal integrity.

The source of the statement matters.

A DOL Policy Reversal Is Not Automatically Judicial Estoppel

This is especially important across presidential administrations.

DOL can change policy.

It can:

• rescind a rule
• amend a regulation
• replace guidance
• reinterpret a statute
• withdraw a litigation position
• reopen a regulatory record.

The existence of an earlier position does not permanently freeze the agency.

Administrative law already has tools for evaluating a changed agency position.

The primary one is not judicial estoppel.

It is reasoned decisionmaking under the APA.

FCC v. Fox Explains How an Agency Can Change Policy

FCC v. Fox Television Stations rejected the idea that an agency policy change is automatically subject to a special, more demanding standard simply because it is a change.^[6]

The agency must ordinarily:

• recognize that it is changing position
• provide good reasons for the new policy
• remain within statutory authority
• address relevant reliance interests when they matter.^[6]

The agency need not prove that the new policy is objectively better than the old one merely because the policy changed.^[6]

That doctrine is a much better fit for many DOL reversals than judicial estoppel.

A Policy Change Can Be Lawful Even After the Agency Defended the Old Policy

Assume DOL defends Rule A in court.

The court upholds Rule A.

A later administration concludes that Rule A is poor policy.

DOL completes a lawful rulemaking and replaces it with Rule B.

The simple argument:

"DOL once told a court Rule A was lawful, so DOL is judicially estopped from adopting Rule B"

is usually conceptually wrong.

Lawfulness and policy preference are not identical propositions.

An agency can believe:

• Rule A was legally permissible
• Rule B is also legally permissible
• Rule B is now preferred.

No contradiction is required.

The later action still must survive the APA.

Statutory Interpretation Can Be More Complicated

Suppose DOL told one court:

ERISA Section X unambiguously means A.

The court accepted that interpretation and entered judgment.

Years later DOL tells another court:

Section X unambiguously means not-A.

That is a much stronger judicial-estoppel fact pattern.

But even then, the analysis cannot stop at the two quotations.

Check:

• Did controlling law change?
• Did the earlier court actually adopt interpretation A?
• Is the later case interpreting the same statutory text?
• Did Congress amend the statute?
• Is the later position addressing a different transaction or regulatory provision?
• Does controlling precedent already resolve the issue?
• Is the doctrine being invoked against DOL itself or merely against current government counsel?

Judicial estoppel is fact-sensitive because legal context can make two apparently opposite statements non-equivalent.

Intervening Supreme Court Law Can Justify a Changed Position

A major change in law can make fidelity to an old litigation position irrational.

Assume DOL argued under Chevron-era doctrine that statutory ambiguity justified deference.

After Loper Bright, the governing judicial methodology changed.

A later DOL brief framed around independent statutory interpretation is not suspect merely because it does not repeat the prior Chevron argument.

The law changed.

Likewise, a circuit decision can become:

• overruled
• abrogated
• vacated
• limited by later Supreme Court law.

A judicial-estoppel analysis that ignores intervening law mistakes consistency for stasis.

New Agency Action Can Also Change the Question

Rule A may be invalidated.

DOL later issues Rule B after:

• a new notice of proposed rulemaking
• new comments
• new economic analysis
• different statutory reasoning
• narrower operative text.

The agency's defense of Rule B is not automatically a contradictory defense of Rule A.

The challenged objects are different.

That is the same discipline INV-207 applies to remedies and INV-223 applies to preclusion:

identify the exact object.

"Same policy area" is not enough.

Chenery Solves a Different Problem

SEC v. Chenery requires agency action to stand or fall on the grounds the agency itself used.^[7]

Suppose a DOL final rule relies on:

Rationale A.

In litigation, counsel offers:

Rationale B

because B is stronger.

That can create a Chenery problem.^[7]

The question is not necessarily judicial estoppel.

The problem is that counsel cannot ordinarily replace the agency's actual administrative reasoning with a new rationale invented after the fact.

That is different from saying the litigant is forbidden from taking an inconsistent position because an earlier tribunal accepted the opposite one.

Judicial Estoppel, Fox and Chenery Belong in Separate Boxes

The facts can overlap.

The doctrines should not.

Judicial Estoppel Is Also Different From Equitable Estoppel

The word:

estoppel

creates another recurring error.

Judicial estoppel and equitable estoppel do not ask the same thing.

Judicial estoppel focuses on:

• inconsistent litigation positions
• prior tribunal acceptance
• judicial integrity
• unfair litigation advantage.

Traditional equitable estoppel focuses more directly on:

• representation
• reasonable reliance
• detrimental change in position.^[8]

Against the federal government, equitable estoppel faces additional limitations.

That is not the same analysis as judicial estoppel.

Heckler Shows Why Government Advice Does Not Automatically Rewrite Law

Heckler v. Community Health Services involved reliance on erroneous guidance about federal reimbursement.^[8]

The Supreme Court rejected the estoppel claim.

At minimum, a party seeking equitable estoppel must establish the traditional reliance-based elements.^[8]

The Court also stressed that the government is not treated exactly like an ordinary private litigant when enforcement of public law is at stake.^[8]

That means this statement is wrong:

"DOL gave informal advice, so DOL is judicially estopped from enforcing the regulation differently."

The first question is whether judicial estoppel even fits.

Often it does not.

OPM v. Richmond Adds a Hard Treasury Boundary

Office of Personnel Management v. Richmond involved erroneous government advice that allegedly caused a claimant to lose federal benefits.^[9]

The Supreme Court held that estoppel could not be used to require payment of federal money contrary to statutory authorization.^[9]

The Appropriations Clause prevented the court from ordering Treasury payments Congress had not authorized.

That is an equitable-estoppel limit.

It should not be imported mechanically into judicial-estoppel analysis.

The broader lesson is narrower:

"estoppel against the government" is not one doctrine.

The requested remedy matters.

Worked Example: DOL Argued A, but the Court Rejected A

DOL argues:

"Section X authorizes the rule because transaction Y is always fiduciary advice."

Court rejects that interpretation and rules for the challenger on another ground.

Later DOL says:

"Transaction Y is not always fiduciary advice."

A memo declares judicial estoppel.

Weak analysis.

The first tribunal did not accept the allegedly inconsistent earlier position.

New Hampshire's judicial-acceptance concern is therefore materially reduced.^[1]

Other doctrines may still matter.

Judicial estoppel is not strong merely because the two quotes differ.

Worked Example: DOL Won on A and Later Argues Not-A

DOL argues in Case 1:

"Section X applies to all rollover recommendations of type Y."

The court expressly adopts that interpretation and DOL wins.

In Case 2 involving the same statutory text and materially identical transaction, DOL says:

"Section X never applies to rollover recommendations of type Y."

Now the estoppel argument is serious.

Check:

• exact language of first position
• exact holding
• whether law changed
• whether facts differ
• whether later agency action changed the legal object
• what advantage the switch creates.

No single fact decides the issue.

But this is the kind of contradiction the doctrine is designed to police.

Worked Example: DOL Changes Policy Through a New Rulemaking

Old regulation permits approach A.

DOL defends it successfully.

Five years later DOL issues a new final rule preferring approach B.

Industry plaintiff says:

"Judicial estoppel requires DOL to keep approach A forever."

Wrong starting doctrine.

The new rule should be tested for:

• statutory authority
• notice and comment
• reasoned explanation
• treatment of reliance interests
• record support.^[6]

Judicial estoppel does not convert a lawful prior policy into a permanent regulatory commitment.

Worked Example: New Supreme Court Case Changes the Legal Landscape

DOL defended an older rule using Chevron.

A court upheld it.

After Loper Bright, DOL files a brief using independent statutory interpretation and no longer asks for Chevron deference.

Opponent says:

"DOL changed positions."

The relevant law changed first.

Judicial estoppel does not require a litigant to keep advancing a doctrine the Supreme Court has rejected.

The later position should be evaluated under current law.

Worked Example: 401(k) Participants Use Two Loss-Causation Theories

Securities case says:

Loss occurred because the market price incorporated false information.

ERISA case says:

Plan losses also reflect fiduciary retention or management of the investment.

Defendant calls the ERISA theory inconsistent.

Feder shows why that can fail.^[4]

Different scope does not equal logical contradiction.

The analysis asks whether both theories can be true.

If they can, judicial estoppel is the wrong tool.

Worked Example: Earlier Fiduciary Position Concerned Disclosure

An ERISA service provider previously accepted that it exercised discretion over participant disclosures.

Later it denies discretion over plan investment selection.

Opponent says:

"It admitted fiduciary status."

Pegram shows the problem with that shortcut.^[3]

ERISA fiduciary analysis is tied to function.

The later position can be different without being inconsistent.

Worked Example: Bankruptcy Omission After Keathley

Plan participant has a pending claim while in Chapter 13 but fails to update bankruptcy schedules.

Later the omission is discovered.

Before Keathley, a Fifth Circuit analysis might have focused almost entirely on:

• knowledge of the claim
• hypothetical motive to conceal.^[2]

That is no longer enough.

The court must examine the totality of circumstances relevant to inadvertence or mistake.^[2]

Evidence could include:

• communications with bankruptcy counsel
• timing of corrective disclosure
• whether the bankruptcy remained open
• whether creditors were actually affected
• steps taken after discovery
• explanations supported by the record.

Keathley does not guarantee forgiveness.

It requires actual equitable analysis.

Worked Example: Litigation Counsel Invents a Better Regulatory Rationale

DOL's final rule says:

"Rule is justified because A."

In court, the government says:

"The real justification is B."

Industry brief argues judicial estoppel because DOL changed positions.

That may miss the stronger doctrine.

If B was not the agency's stated basis, Chenery can prevent the court from sustaining the rule on counsel's new rationale.^[7]

The problem is post-hoc administrative reasoning.

No prior accepted judicial position is necessary.

A Judicial-Estoppel Analysis Should Compare Propositions, Not Labels

Start by writing the earlier statement as one precise proposition.

Example:

Position A: A one-time rollover recommendation is fiduciary advice under this regulatory test because element X is satisfied.

Then write the later proposition.

Position B: A one-time rollover recommendation is never fiduciary advice under the same test because element X cannot be satisfied.

Now compare.

Do not reduce both to:

"DOL fiduciary argument."

Precision exposes whether there is a true contradiction.

The Earlier Tribunal's Action Must Be Recorded Separately

For the earlier proceeding, capture:

• position asserted
• evidence supporting it
• tribunal
• procedural posture
• whether the tribunal addressed the position
• whether it accepted the position
• whether acceptance mattered to the order
• benefit obtained from the position.

That prevents a common research error:

brief filed → position accepted.

Those are not equivalent.

The Later Position Needs Its Own Context

Record:

• exact later position
• new facts
• intervening law
• new agency action
• new statutory text
• changed procedural posture
• explanation for the change
• advantage sought.

A later sentence can look inconsistent when stripped from the reason the legal question changed.

Context is not a loophole.

It is the analysis.

Judicial Estoppel Can Be Raised Without Claim Preclusion

A second lawsuit may involve:

• a different claim
• a different opposing party
• no privity.

Claim preclusion may therefore fail.

Judicial estoppel can still be argued because its concern is a party's inconsistent use of adjudication.^[1][5]

That makes this sequence possible:

claim preclusion: no issue preclusion: no judicial estoppel: potentially yes.

The reverse can also happen.

The doctrines must be tested independently.

Issue Preclusion Can Apply When Judicial Estoppel Does Not

Suppose a legal issue was:

• fully litigated
• actually decided
• necessary to judgment
• asserted again by a bound party.

Issue preclusion may apply even if the party never took inconsistent positions.

There may be no:

Position A → Position not-A

at all.

The party may simply be repeating Position A after losing.

That is a preclusion problem.

Not judicial estoppel.

The Mandate Rule Is Different Again

A district court on remand cannot reopen matters the appellate mandate resolved merely because a party now wants a different theory.

That is INV-222's domain.

The mandate rule constrains the lower court's authority after appeal.

Judicial estoppel constrains opportunistic inconsistency.

One case can implicate both, but the source of the constraint is different.

Position-Change Checklist

Before labeling a changed DOL or ERISA argument judicial estoppel, verify:

Earlier position

What exactly did the party say?

Same party

Is the party now taking the later position the party that took the earlier one?

Tribunal

Was the earlier position taken in a judicial or qualifying adjudicative proceeding?

Acceptance

Did the tribunal accept the earlier position?

Materiality

Did that acceptance matter to an order, judgment or other adjudicative result?

Later position

What exactly is the new proposition?

Clear inconsistency

Can both positions be true at the same time?

New facts

Did the operative facts change?

New law

Did a statute, regulation or controlling precedent change?

New agency action

Is the later case about a different final rule, amendment, rescission or adjudication?

Explanation

Is the changed position credibly explained by mistake, corrected information or changed legal context?

Advantage

Would accepting the new position create an unfair advantage or make the adjudicative system appear manipulated?

Those questions are more useful than asking whether two briefs contain different sentences.

Practical Judicial-Estoppel Matrix

New Hampshire and Keathley Should Be Read Together

New Hampshire supplies the broad architecture.^[1]

Keathley supplies a modern warning against mechanical application.^[2]

Together they support five practical propositions:

1. judicial estoppel is equitable
2. clear inconsistency matters
3. prior tribunal acceptance matters
4. unfair advantage and judicial integrity matter
5. context can defeat shortcuts.

That is a more accurate rule than:

"Three boxes checked = estopped."

Fast Answers

What is judicial estoppel?

An equitable doctrine that can prevent a party from gaining an advantage by taking a position clearly inconsistent with one the party successfully advanced in an earlier proceeding.^[1]

Is judicial estoppel the same as issue preclusion?

No. Judicial estoppel protects adjudicative integrity from inconsistent positions. Issue preclusion prevents a bound party from relitigating an issue already decided.

Does judicial estoppel require the same opposing party?

Not generally. Temple University Hospital explains why importing a same-party requirement from issue preclusion can be a category error.^[5]

Must the earlier tribunal accept the first position?

New Hampshire treats prior judicial acceptance as an important consideration because it creates the risk of inconsistent court determinations.^[1] Circuit formulations can differ, so the controlling court's law still matters.

Is every different argument clearly inconsistent?

No. Pegram and Feder show why different, broader or function-specific theories can coexist.^[3][4]

What did Keathley hold?

In the bankruptcy-omission context before the Court, determining inadvertence or mistake for judicial estoppel requires the totality of the circumstances; the Fifth Circuit could not limit the inquiry to knowledge of the claim and hypothetical motive to conceal it.^[2]

Did Keathley hold that judicial estoppel always applies in bankruptcy?

No. The Court assumed that point without deciding it.^[2]

Did Keathley create a universal test for every judicial-estoppel case?

No.

Why does Keathley matter to DOL retirement litigation?

Important DOL retirement cases frequently proceed in the Fifth Circuit. Keathley changed a significant part of that circuit's judicial-estoppel methodology and reinforces the need for context rather than mechanical rules.

What did Pegram show?

A prior ERISA fiduciary position concerning disclosure did not necessarily contradict a later position concerning fiduciary responsibility for treatment incentives.^[3]

What did Feder show?

Different securities and 401(k) ERISA loss-causation theories were not judicially inconsistent merely because the ERISA theory was broader.^[4]

Can DOL change policy?

Yes. A policy change is not automatically judicial estoppel. The agency ordinarily must satisfy the APA, including reasoned explanation requirements for changed policy.^[6]

What doctrine applies when DOL counsel invents a new rationale in court?

Chenery can be more directly relevant because agency action ordinarily must be judged on the grounds the agency itself invoked.^[7]

Is reliance on informal DOL advice judicial estoppel?

Usually that description is wrong. Reliance-based arguments fit equitable-estoppel doctrine more closely, and estoppel against the federal government faces special limits.^[8][9]

Can estoppel force payment of federal money Congress did not authorize?

OPM v. Richmond says no.^[9]

What is the safest one-sentence rule?

Before treating DOL or an ERISA litigant as judicially estopped, compare the exact earlier and later propositions, verify whether the first tribunal accepted the earlier position, identify any changed facts, law or agency action, and separate true adjudicative inconsistency from ordinary policy change, corrected reasoning or a different legal question.

Sources & References

1. Supreme Court / Legal Information Institute: New Hampshire v. Maine, 532 U.S. 742 (2001) — https://www.law.cornell.edu/supremecourt/text/532/742
2. Supreme Court of the United States: Keathley v. Buddy Ayers Construction, Inc., No. 25-6, June 11, 2026 — https://www.supremecourt.gov/opinions/25pdf/25-6_d1o2.pdf
3. Supreme Court / Legal Information Institute: Pegram v. Herdrich, 530 U.S. 211 (2000) — https://www.law.cornell.edu/supct/html/98-1949.ZO.html
4. U.S. Court of Appeals for the Fifth Circuit: Feder v. Electronic Data Systems Corp., 429 F.3d 125 (5th Cir. 2005) — https://www.ca5.uscourts.gov/opinions/pub/05/05-40636-CV0.wpd.pdf
5. U.S. Court of Appeals for the D.C. Circuit / Justia: Temple University Hospital, Inc. v. NLRB, 929 F.3d 729 (D.C. Cir. 2019) — https://law.justia.com/cases/federal/appellate-courts/cadc/18-1150/18-1150-2019-07-09.html
6. Supreme Court / Legal Information Institute: FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) — https://www.law.cornell.edu/supct/html/07-582.ZO.html
7. Supreme Court / Justia: SEC v. Chenery Corp., 318 U.S. 80 (1943) — https://supreme.justia.com/cases/federal/us/318/80/
8. Supreme Court / GovInfo: Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984) — https://www.govinfo.gov/content/pkg/USREPORTS-467/pdf/USREPORTS-467-51.pdf
9. Supreme Court / Legal Information Institute: Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) — https://www.law.cornell.edu/supremecourt/text/496/414
10. U.S. Department of Labor — Office of Administrative Law Judges: Whistleblower Digest, Res Judicata / Collateral Estoppel / Law of the Case — https://www.dol.gov/agencies/oalj/PUBLIC/WHISTLEBLOWER/REFERENCES/REFERENCE_WORKS/EDIG21

Educational Disclaimer

ROIStreet publishes educational content about 401(k) plans, ERISA, Department of Labor regulation, federal judicial review and civil procedure. This article is not legal, fiduciary, tax, investment, litigation, appellate, jurisdictional or plan-administration advice. Judicial-estoppel formulations and required showings can vary by circuit and procedural setting. Keathley addressed the Fifth Circuit's bankruptcy-omission approach and should not be treated as a universal restatement of every judicial-estoppel element. Agency policy changes, post-hoc rationales, equitable estoppel, preclusion and mandate questions use different doctrines. Current disputes should be evaluated against the exact prior position, tribunal disposition, intervening law, current agency action and controlling precedent.

The ROIStreet Reader Promise

We strive to explain before we evaluate, present evidence before opinions, discuss risks alongside potential benefits, distinguish facts from analysis, and correct material errors transparently.

Our purpose is to help readers better understand investing—not to tell them what to do.