In Smith v. Regional Transit Auth., 756 F.3d 340 (5th Cir. 2014), the Fifth Circuit  rejected its prior precedent, and held that the governmental plan exemption (and presumably other, similar exemptions) does not impact subject matter jurisdiction.

The court noted that the “Supreme Court has repeatedly instructed that we must avoid conflating the question of whether we have subject matter jurisdiction to consider a claim with the determination of whether the plaintiff has stated a valid claim for relief.” Where the plaintiff alleged a claim under ERISA (as the plaintiff here did),  the district court had subject matter jurisdiction unless the claim was so insubstantial or implausible as not to involve a federal controversy.

Accordingly, the proper method for raising an ERISA exemption is a Rule 12(b)(6) motion (if the exemption can be determined from the face of the complaint), or a summary judgment motion (if extrinsic evidence is required). But here, the district court had based its dismissal on Rule 12(b)(1), under which a district court has the authority to resolve disputed issues of fact to the extent necessary to determine jurisdiction.

Because the district court used the incorrect procedural vehicle, the court reversed and remanded, without reaching the merits of the exemption.