The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2025 Decided April 25, 2025
No. 23-7173
DAVID O'CONNELL,
APPELLEE
v.
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-01365)
Daniel H. Blomberg argued the cause for appellant. With
him on the briefs were Kevin T. Baine, Emmet T. Flood, Laura
Wolk Slavis, Colten L. Stanberry, Kelly R. Oeltjenbruns, and
Kelsey Baer Flores. Mark S. Storslee entered an appearance.
Daniel F. Mummolo, Christopher G. Michel, and Rachel
G. Frank were on the brief for amicus curiae Federal Courts
Professor Derek T. Muller in support of appellant.
Aaron M. Streett and Matthew M. Hilderbrand were on the
brief for amicus curiae Dr. Lael Weinberger in support of
appellant.
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Michael J. Showalter, Victoria N. Lynch-Draper, and Joel
S. Nolette were on the brief for amici curiae Seven Religious
Organizations in support of appellant.
Thomas G. Hungar, Russell B. Balikian, and Cameron J.
E. Pritchett were on the brief for amici curiae Law & Religion
Scholars in support of appellant.
Gabriel Z. Doble argued the cause for appellee. With him
on the brief were Martin Woodward and Simon C. Franzini.
Jenny Samuels and Alex J. Luchenitser were on the brief
for amicus curiae Americans United for Separation of Church
and State in support of appellee.
Before: SRINIVASAN, Chief Judge, CHILDS, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: This case involves an
action by Appellee, David O’Connell, against Appellant,
United States Conference of Catholic Bishops (“USCCB”), for
fraudulent solicitation of donations. In his complaint,
O’Connell claims that, at the urging of USCCB, he and others
donated money to Peter’s Pence Collection for the purported
purpose of helping those in immediate need of assistance in
disaster-stricken parts of the world. O’Connell contends,
however, that USCCB fraudulently concealed that most of the
donations to Peter’s Pence were not for victims of war,
oppression, natural disaster, or disease, as he and others
allegedly had been told. Rather, according to O’Connell, most
of the donated money was “diverted into various suspicious
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investment funds, which in turn have funneled the money into
such diverse ventures as luxury condominium developments
and Hollywood movies while paying fund managers hefty,
multi-million dollar commissions.” Complaint ¶ 4.
Before discovery and trial, USCCB moved to dismiss the
case in District Court. USCCB contended that the court had no
subject matter jurisdiction because O’Connell’s action was
barred by the church autonomy doctrine. Without in any way
addressing the merits of the parties’ claims, the District Court
denied the motion to dismiss. The court found that, at this stage
of the litigation, O’Connell’s claims raised a purely secular
dispute that could be resolved according to neutral principles
of law. However, the District Court made it clear to the parties
that it could not and would not address purely religious
questions, should they arise during litigation. Thereafter, rather
than proceeding with trial, USCCB filed an appeal with this
court seeking interlocutory review. For the reasons explained
below, we dismiss this appeal for want of jurisdiction and
remand the case to the District Court for further proceedings.
Section 1291 of the Judicial Code confers on federal courts
of appeals jurisdiction to review “final decisions of the district
courts.” 28 U.S.C. § 1291. “A ‘final decisio[n]’ is typically one
‘by which a district court disassociates itself from a case.’”
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)
(alteration in original) (quoting Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 42 (1995)). The collateral order
doctrine, however, provides a limited exception to this final
decision rule for a “small class” of collateral rulings that,
although they do not end the litigation, are appropriately
deemed “final.” Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949). This “small category includes only
decisions that are [1] conclusive, [2] that resolve important
questions separate from the merits, and [3] that are effectively
4
unreviewable on appeal from the final judgment in the
underlying action.” Swint, 514 U.S. at 42 (citation omitted).
The Supreme Court has made it clear that these requirements
are stringent. Will v. Hallock, 546 U.S. 345, 349 (2006). The
Court has also stressed the importance of the third Cohen
requirement, i.e., a decision that can be effectively reviewed on
appeal is not covered by the collateral order doctrine. See, e.g.,
Mohawk Indus., 558 U.S. at 107-08. The Court has openly
acknowledged that many trial court rulings “may burden
litigants in ways that are only imperfectly reparable by
appellate reversal of a final district court judgment.” Digit.
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 872 (1994)
(citations omitted). Nevertheless, the Court has been resolute
in saying that “the mere identification of some interest that
would be ‘irretrievably lost’ has never sufficed to meet the third
Cohen requirement.” Id. (quoting Richardson-Merrell Inc. v.
Koller, 472 U.S. 424, 431 (1985)).
USCCB attempts to bring a collateral order appeal to
challenge the District Court’s order denying its motion to
dismiss based on the church autonomy doctrine. The church
autonomy doctrine protects against government interference in
matters of faith, doctrine, and internal management. It may be
raised as a defense in a civil suit, but it does not immunize
religious organizations from civil actions. Pleading-stage
denials of a church autonomy defense, such as the contested
motion to dismiss in this case, do not satisfy the strict
requirements of the collateral order doctrine. They are neither
conclusive nor separate from the merits and, most importantly,
they can be reviewed upon post-judgment appeal.
Neither the Supreme Court nor any circuit has ever
expanded the collateral order doctrine to categorically cover
alleged denials of a church autonomy defense. This is hardly
surprising. The limited scope of the collateral order doctrine
5
reflects a healthy respect for the virtues of the final decision
rule, which serves as an important safeguard against piecemeal
and premature review. USCCB’s claimed rights can be
adequately addressed on appeal after the District Court issues
a final decision and, therefore, are not eligible for collateral
order appeal.
I. BACKGROUND
A. Factual and Procedural History
Appellant USCCB, headquartered in Washington, D.C., is
an organization of Roman Catholic Bishops serving the United
States and the U.S. Virgin Islands. As part of its mission to
support the work of the Catholic Church, USCCB oversees the
promotion of the Peter’s Pence Collection, an annual offering
given by the Catholic faithful to the Pope. Complaint ¶ 18-19.
Specifically, USCCB creates materials, such as letters, web
ads, and posters, promoting the Collection which can then be
used in parishes and dioceses. Id. ¶ 20.
Appellee David O’Connell donated to Peter’s Pence at a
Rhode Island church in the summer of 2018. Id. ¶ 34. On
January 22, 2020, O’Connell filed a class action complaint in
federal district court against USCCB, asserting claims of fraud,
unjust enrichment, and breach of fiduciary duty. He seeks to
represent a class of all persons in the United States who have
donated money to the Peter’s Pence Collection. O’Connell
initially sued USCCB in the U.S. District Court for the District
of Rhode Island. On USCCB’s motion, the case was transferred
to the U.S. District Court for the District of Columbia.
According to O’Connell, he was led to believe by USCCB
that his donations to Peter’s Pence would be used only “for
emergency assistance” to “the poor” and “victims of war,
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oppression, natural disaster, or disease throughout the world.”
Id. ¶¶ 35-36, 48. However, in 2019, news organizations
published stories revealing that Peter’s Pence funds were used
to support the Vatican’s administrative budget, placed in
various investments including Hollywood films and real estate,
or used to pay hefty commissions for fund managers, with only
ten percent going to the charitable causes featured in USCCB’s
promotional materials. Id. ¶¶ 27-30. O’Connell alleges that
“USCCB has always known the difference between a donation
for emergency assistance and a donation to defray Vatican
administrative expenses. But USCCB hid this distinction in its
promotion, oversight, and administration of the Peters [sic]
Pence collection in the United States.” Id. ¶ 36. He also
maintains that if USCCB had disclosed the actual purposes for
which the funds would be used, he would not have donated to
the Collection. Id. ¶ 35. O’Connell does not allege that the
church cannot use collected funds for particular purposes, such
as for investments or overhead expenses – only that USCCB
cannot misrepresent how the funds will be used. See Br. for
Plaintiff-Appellee 5-6.
USCCB answered the complaint in July 2020. Shortly
thereafter, O’Connell served document production requests.
Those requests sought documents showing the Peter’s Pence
promotional materials that USCCB created; lists of donors and
amounts received; USCCB’s knowledge of how the funds
would be used; and how the funds were used. The District
Court has had no occasion to rule on these requests. There has
been no discovery.
After answering the complaint, USCCB moved to dismiss
for lack of subject matter jurisdiction and for judgment on the
pleadings. USCCB argued that the complaint was barred by the
church autonomy doctrine, which is grounded in the First
Amendment and prevents civil courts from hearing matters of
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church doctrine and internal governance. USCCB also argued
that O’Connell had failed to adequately plead his claims.
The District Court denied USCCB’s motions in an oral
ruling and minute order on November 17, 2023. Tr. of Hearing
(Nov. 17, 2023). The court ruled that it had subject matter
jurisdiction because, at least at this stage of the litigation,
O’Connell’s claims raised a purely secular dispute involving
affirmative misrepresentations and fraudulent omissions,
which the District Court could resolve by applying “neutral
principles of law.” Id. at 5-7. In other words, the District Court
saw “no need” to “inquire into church operations, religious
doctrine, religious hierarchy, or religious decisionmaking to
evaluate the merits of [plaintiff’s] claim. Instead, this is a case
about what defendant represented, what it knew, and the
relationship between defendant and plaintiff as a putative class
representative.” Id. at 6. As such, the District Court found that
“at this stage, it’s not apparent . . . that the resolution of the
claims will involve impermissible religious entanglement.” Id.
at 7. Accordingly, it declined to dismiss the case on the basis
of the church autonomy doctrine.
The District Court also took care to recognize the
limitations imposed by the church autonomy doctrine. It made
clear that it would not – and could not – answer purely religious
questions, should they arise during litigation. Id. at 6. For
example, the court would not and “could not rule that the
church could only exercise its financial discretion in one way
or another.” Id. The District Court made it clear, however, that
it does not believe religious determinations are required for it
“to determine, under straightforward common-law principles,
whether or not fraud took place.” Id.
In addition, the District Court denied USCCB’s motion for
judgment on the pleadings because material disputes of fact
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remained as to O’Connell’s claims. Id. at 7. It also concluded
that O’Connell had adequately pleaded his claims.
USCCB timely appealed the District Court’s decision and
advances three arguments on appeal. It argues that this court
has jurisdiction over the interlocutory appeal; that O’Connell’s
claims are barred by the church autonomy doctrine; and that
O’Connell failed to adequately plead his claims. O’Connell, in
turn, disagrees with each of these arguments.
B. Legal Background
This case primarily concerns two doctrines: the collateral
order doctrine and the church autonomy doctrine.
1. Collateral Order Doctrine
As noted above, the appellate jurisdiction of the federal
courts of appeals is generally limited to “final decisions of the
district courts of the United States.” 28 U.S.C. § 1291. A final
decision is typically one that “ends the litigation on the merits
and leaves nothing for the court to do but execute the
judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945).
Known as the final decision rule, this limitation on the
jurisdiction of federal appellate courts has long served an
important purpose: It protects against piecemeal and premature
review.
As the Supreme Court has explained,
Congress from the very beginning has, by forbidding
piecemeal disposition on appeal . . . , set itself against
enfeebling judicial administration. Thereby is avoided
the obstruction . . . that would come from permitting the
harassment and cost of a succession of separate appeals
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. . . . To be effective, judicial administration must not
be leaden-footed.
Cobbledick v. United States, 309 U.S. 323, 325 (1940). Beyond
concerns of judicial economy, the final decision rule also
“emphasizes the deference that appellate courts owe to the trial
judge as the individual initially called upon to decide the many
questions of law and fact that occur in the course of a trial.”
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374
(1981). It would be unwise for an appellate court to
prematurely jump into the fray, without the benefit of the trial
court’s rulings and with only the guidance of a partially
developed record. Thus, as a fundamental principle of the
federal courts system, the final decision rule does not
accommodate exceptions for issues merely because they are
important and deserving of attention. The exceptions to the rule
that do exist are few and far between.
This case implicates one exception – the collateral order
doctrine. “[A]n expansive interpretation of [section 1291’s]
finality requirement” first announced in Cohen, the collateral
order doctrine allows appeals “from orders characterized as
final . . . even though it may be clear that they do not terminate
the action or any part of it.” 15A CHARLES ALAN WRIGHT,
ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3911, Westlaw (database updated
June 2024); see also Cohen, 337 U.S. at 545-46. This exception
to the final decision rule is limited to a ‘‘narrow and selective’’
class of orders that (1) are “effectively unreviewable on appeal
from a final judgment”; (2) “conclusively determine the
disputed question”; and (3) “resolve an important issue
completely separate from the merits of the action.” Will, 546
U.S. at 349-50 (internal quotation marks omitted); see also
United States v. Trump, 88 F.4th 990, 1000 (D.C. Cir. 2023).
These requirements are meant to be difficult to satisfy, as “the
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narrow exception should stay that way and never be allowed to
swallow the general rule that a party is entitled to a single
appeal” after “final judgment has been entered.” Digit. Equip.
Corp., 511 U.S. at 868 (internal quotation marks and citation
omitted).
Over the years, the Supreme Court has provided the courts
of appeals with general guideposts to follow when assessing
these three stringent conditions. First, an order is “effectively
unreviewable” where the “legal and practical value” of the
asserted right “would be destroyed if it were not vindicated
before trial.” Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 498-
99 (1989) (internal quotation marks and citations omitted). As
noted above, the fact that a ruling “may burden litigants in ways
that are only imperfectly reparable by appellate reversal of a
final district court judgment” is not sufficient. Mohawk Indus.,
558 U.S. at 107 (citation omitted). Nor is it sufficient for
litigants to rest on the importance of the asserted right when
seeking interlocutory review. See id. at 108. Rather, “[t]he
crucial question” is “whether deferring review until final
judgment so imperils the interest [at stake] as to justify the cost
of allowing immediate appeal of the entire class of relevant
orders.” Id. Second, a conclusive determination is required. An
order is conclusive when it is the “complete, formal, and, in the
trial court, final rejection of” the issue. Abney v. United States,
431 U.S. 651, 659 (1977). The decision must “not constitute
merely a ‘step toward final disposition of the merits of the
case.’” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171 (1974)
(quoting Cohen, 337 U.S. at 546). Finally, the order must
involve a “claim[] of right separable from, and collateral to,
rights asserted in the action.” Cohen, 337 U.S. at 546. Orders
are “entwined with the merits” when “courts of appeals will
often have to review the nature and content of” the merits to
determine the issue on appeal. Richardson-Merrell, 472 U.S. at
439. Although complete separation is not required, the asserted
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interest on appeal must be “conceptually distinct.” Mitchell v.
Forsyth, 472 U.S. 511, 527 (1985).
When assessing these three requirements of the collateral
order rule, “we do not engage in an ‘individualized
jurisdictional inquiry.’” Mohawk Indus., 558 U.S. at 107
(citation omitted). “As long as the class of claims, taken as a
whole, can be adequately vindicated by other means, the
chance that the litigation at hand might be speeded, or a
particular injustic[e] averted, does not provide a basis for
jurisdiction under § 1291.” Id. (alteration in original) (internal
quotation marks omitted). The question of whether an order is
appealable is thus “determined for the entire category to which
a claim belongs” rather than for individual cases. Digit. Equip.
Corp., 511 U.S. at 868. For our purposes, the relevant category
of orders involves denials of a pleading-stage motion to dismiss
based on the church autonomy defense.
Front of mind when applying Cohen’s collateral order
doctrine is the Supreme Court’s command that “the class of
collaterally appealable orders . . . remain ‘narrow and selective
in its membership.’” Mohawk Indus., 558 U.S. at 113 (quoting
Will, 546 U.S. at 350). The Court’s admonition “reflects a
healthy respect for the virtues of the final-judgment rule”:
“Permitting piecemeal, prejudgment appeals . . . undermines
efficient judicial administration and encroaches upon the
prerogatives of district court judges, who play a special role in
managing ongoing litigation.” Id. at 106 (internal quotation
marks and citations omitted); see also Richardson-Merrell, 472
U.S. at 436 (“[D]istrict judge[s] can better exercise [their]
responsibility [to police the prejudgment tactics of litigants] if
the appellate courts do not repeatedly intervene to second-
guess prejudgment rulings.”).
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As mentioned earlier, an interlocutory appeal “risks
additional, and unnecessary, appellate court work either when
it presents appellate courts with less developed records or when
it brings them appeals that, had the trial simply proceeded,
would have turned out to be unnecessary.” Johnson v. Jones,
515 U.S. 304, 309 (1995). Too many interlocutory appeals can
thus cause serious harm and, as such, they “are the exception,
not the rule.” Id.
Accordingly, the Supreme Court has rarely extended the
collateral order doctrine to cover new categories. Indeed, there
are presently less than ten categories of orders falling under the
collateral order doctrine – none of which are applicable to this
case. See Belya v. Kapral, 45 F.4th 621, 629 n.5 (2d Cir. 2022)
(collecting cases); see, e.g., Abney, 431 U.S. at 659 (orders
denying a criminal defendant’s claim of double jeopardy);
Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (orders denying
a public official’s claim of absolute immunity); P.R. Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-45
(1993) (orders denying a state’s claim of Eleventh Amendment
immunity).
Moreover, Congress has authorized the Supreme Court to
promulgate rules “defin[ing] when a ruling of a district court is
final for the purposes of appeal under [28 U.S.C. § 1291].” 28
U.S.C. § 2072(c). “Congress’ designation of the rulemaking
process as the way to define or refine when a district court
ruling is ‘final’ and when an interlocutory order is appealable
warrants the Judiciary’s full respect.” Swint, 514 U.S. at 48.
Thus, as the Supreme Court has made clear, rulemaking, rather
than expansion by court decision, is “the preferred means for
determining whether and when prejudgment orders should be
immediately appealable.” Mohawk Indus., 558 U.S. at 113. As
relevant here, the Supreme Court has not promulgated any rules
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that would grant this court appellate jurisdiction over a district
court’s pleading-stage denial of the church autonomy defense.
2. Church Autonomy Doctrine
The church autonomy doctrine derives from the Religion
Clauses of the First Amendment. Church autonomy protects
against government interference in “matters of faith and
doctrine and in closely linked matters of internal government.”
Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732,
747 (2020). Accordingly, secular courts may not interpret
religious law or wade into religious disputes. See Serbian E.
Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S.
696, 708-09 (1976); see also Korte v. Sebelius, 735 F.3d 654,
677 (7th Cir. 2013) (noting that secular courts must “respect[]
[religious institutions’] autonomy to shape their own missions,
conduct their own ministries, and generally govern themselves
in accordance with their own doctrines as religious
institutions”). The First Amendment also protects against
employment discrimination claims brought by ministers
against their religious employers. See Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171,
190 (2012). This protection is known as the ministerial
exception, a narrower offshoot of the broader church autonomy
doctrine. See Our Lady of Guadalupe, 591 U.S. at 747.
These protections afforded by the First Amendment do not
grant religious institutions a general immunity from secular
laws. See id. at 746. Courts may adjudicate secular disputes
involving religious institutions where resolution of the case
does not require inquiry into doctrinal disputes. See Jones v.
Wolf, 443 U.S. 595, 602-04 (1979) (holding that courts may
apply neutral principles of law to resolve church property
disputes); see also Huntsman v. Corp. of the President of the
Church of Jesus Christ of Latter-Day Saints, 127 F.4th 784,
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792 (9th Cir. 2025) (en banc) (“Because nothing in our analysis
of [plaintiff’s] fraud claims delves into matters of Church
doctrine or policy, our decision in this case does not run afoul
of the church autonomy doctrine.”). So long as a court relies
“exclusively on objective, well-established [legal] concepts,”
or neutral principles of law, it steers clear of any violations of
the church autonomy doctrine. Jones, 443 U.S. at 603; see, e.g.,
McRaney v. N. Am. Mission Bd. of the S. Baptist Convention,
Inc., 966 F.3d 346, 349 (5th Cir. 2020) (allowing claims of
defamation, intentional infliction of emotional distress, and
intentional interference that “ask[] the court to apply neutral
principles of tort law to a case that, on the face of the complaint,
involves a civil rather than religious dispute”).
As this court has twice made clear, the neutral principles
approach “permits a court to interpret provisions of religious
documents involving . . . nondoctrinal matters as long as the
analysis can be done in purely secular terms.” Minker v. Balt.
Ann. Conf. of United Methodist Church, 894 F.2d 1354, 1358
(D.C. Cir. 1990); see EEOC v. Cath. Univ. of Am., 83 F.3d 455,
466 (D.C. Cir. 1996) (same). “Thus, simply having a religious
association on one side of the ‘v’ does not automatically mean
a district court must dismiss the case or limit discovery.” Belya,
45 F.4th at 630.
II. ANALYSIS
The threshold issue in this case is whether this court has
jurisdiction, pursuant to the collateral order doctrine, to address
USCCB’s challenge to the District Court’s pleading-stage
denial of its church autonomy defense. We do not.
Accordingly, we dismiss the appeal and remand the case to the
District Court for further proceedings. We do not reach the
merits of USCCB’s church autonomy claims, nor do we
15
consider USCCB’s argument that O’Connell’s complaint fails
to state a claim.
A. Standard of Review
We determine de novo whether this court may properly
exercise jurisdiction over this interlocutory appeal.
B. This Court Has No Jurisdiction to Entertain
Appellant’s Interlocutory Appeal
As explained at the outset of this opinion, collateral order
appeals are permissible only in a very small number of cases
that involve decisions that are conclusive, resolve important
questions separate from the merits, and are effectively
unreviewable on appeal from the final judgment in the
underlying action. Swint, 514 U.S. at 42. USCCB’s
interlocutory appeal to challenge the District Court’s order
denying its motion to dismiss based on the church autonomy
doctrine does not satisfy these rigid requirements. The most
obvious impediment to USCCB’s action is that it can get
effective review under 28 U.S.C. § 1291 if the District Court
issues a final decision against it. USCCB seeks to protect the
right of the church to manage its own non-secular affairs free
from governmental interference. This is not a right that will be
destroyed if not vindicated before trial.
Our determination that the right to church autonomy is
effectively reviewable upon appeal is well-supported by
existing caselaw. Every circuit to have considered this issue has
ruled that district court determinations regarding disputes over
the church autonomy defense are properly reviewed upon post-
judgment appeal, not pursuant to the collateral order doctrine.
See Garrick v. Moody Bible Inst., 95 F.4th 1104, 1117 (7th Cir.
2024), reh’g en banc denied, No. 21-2683, 2024 WL 1892433
16
(7th Cir. Apr. 30, 2024); Belya, 45 F.4th at 634, reh’g en banc
denied, 59 F.4th 570 (2d Cir. 2023), cert. denied sub nom.
Synod of Bishops of the Russian Orthodox Church Outside of
Russ. v. Belya, 143 S. Ct. 2609 (2023); Tucker v. Faith Bible
Chapel Int’l, 36 F.4th 1021, 1036 (10th Cir. 2022), reh’g en
banc denied, 53 F.4th 620 (10th Cir. 2022), cert. denied, 143
S. Ct. 2608 (2023); Herx v. Diocese of Fort Wayne-South Bend,
Inc., 772 F.3d 1085, 1091-92 (7th Cir. 2014); Klein v. Oved,
No. 23-14105, 2024 WL 1092324, at *1 (11th Cir. Mar. 13,
2024). We find the unanimity of our sister circuits on this
question to be notable and their reasoning persuasive.
It is also notable that the Supreme Court has repeatedly
“insisted that” a collateral order appeal may not be pursued
unless “the right asserted [will be] essentially destroyed if its
vindication must be postponed until trial is completed.” Lauro
Lines s.r.l., 490 U.S. at 499. The possibility that a district court
ruling before a final decision “may be erroneous and may
impose additional litigation expense is not sufficient to set
aside the finality requirement.” Richardson-Merrell, 472 U.S.
at 436. In this case, USCCB has suggested that the value of the
church’s rights will be seriously diminished if this court does
not review and overturn the District Court’s pleading-stage
denial of its motion to dismiss based on a church autonomy
defense. This claim has been rejected by all of the courts that
have addressed the matter in other cases. See, e.g., Belya, 45
F.4th at 633; Garrick, 95 F.4th at 1117; Tucker, 36 F.4th at
1036; Herx, 772 F.3d at 1091-92.
The point is that it does not matter that litigation may
impose some burdens on a party before a final decision issues.
This is insufficient to justify immediate review. In Mohawk
Industries, for example, the Supreme Court recognized that,
during trial, parties may be ordered to disclose privileged
information that intrudes on the confidentiality of attorney-
17
client communications. 558 U.S. at 109. Despite the burden of
having to produce such information, the Court nevertheless
concluded that post-judgment appeals “suffice” to protect the
rights of the litigants. Id. A showing that a party may be
burdened by having to comply with the final decision rule is
not proof that the party’s contested rights will be destroyed. See
Digit. Equip. Corp., 511 U.S. at 871-72.
Furthermore, if we were to allow collateral appeals to
function as an escape valve from adjudicative burdens – or if
any potential burden on the right at stake were enough to justify
immediate review – then the collateral order exception would
expand to swallow the rule. See id. at 868. Church autonomy is
not the only area in which adjudication may by itself pose a
significant cost. The same concern exists for orders on personal
jurisdiction, statutes of limitation, claim preclusion, and the
right to a speedy trial, to list a few examples. We would risk a
dramatic expansion of the collateral order doctrine by hinging
it on concerns of encumbrance – and expansion of the collateral
order doctrine is precisely the outcome the Supreme Court has
consistently rejected. The Court has been quite clear in saying
that the final decision rule may not be bypassed in favor of
collateral order review merely because it “may impose
significant hardship on litigants.” Richardson-Merrell, 472
U.S. at 440.
In addition, district courts have ample tools at their
disposal to limit discovery, tailor jury instructions, and dismiss
claims as necessary to safeguard against infringements of the
church autonomy doctrine. See, e.g., Garrick, 95 F.4th at 1117.
And “[w]hen a case can be resolved by applying well-
established law to secular components of a dispute, such
resolution by a secular court presents no infringement upon a
religious association's independence.” Belya, 45 F.4th at 630.
If infringements nevertheless occur, then litigants, once armed
18
with a final decision, can seek relief through the standard
review process. See Gordon Coll. v. DeWeese-Boyd, 142 S. Ct.
952, 955 (2022) (Alito, J., concurring) (agreeing that nothing
“would preclude [defendant] from . . . seeking review . . . when
the decision is actually final” (citation omitted)).
Moreover, the Supreme Court has reminded us “that
litigants confronted with a particularly injurious or novel
[adverse] ruling have several potential avenues of review apart
from collateral order appeal.” Mohawk Indus., 558 U.S. at 110.
Although post-judgment appeals are the norm, a litigant who is
faced with an adverse church autonomy ruling can ask the
district court to certify, and the court of appeals to accept, an
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Section
1292 review requires “a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
The church-defendant in Demkovich v. St. Andrew the Apostle
Parish, Calumet City pursued this approach and successfully
availed itself of immediate review. 3 F.4th 968, 974 (7th Cir.
2021).
Litigants can also petition the courts of appeals for a writ
of mandamus under 28 U.S.C. § 1651 when a disputed order
“amount[s] to a judicial usurpation of power or a clear abuse of
discretion” or otherwise works a manifest injustice. Cheney v.
U.S. Dist. Ct. for D.C., 542 U.S. 367, 390 (2004) (internal
quotation marks and citations omitted); Mohawk Indus., 558
U.S. at 111.
The Supreme Court has said that these case-specific
mechanisms provide “‘safety valve[s]’ for promptly correcting
serious errors” and “will continue to provide adequate
protection to litigants” in the absence of collateral order
19
appeals. Mohawk Indus., 558 U.S. at 111, 114 (alteration in
original) (quoting Digit. Equip. Corp., 511 U.S. at 883). And
they do so without incidentally creating an entire category of
immediately appealable orders. USCCB has not sought section
1292 review or a writ of mandamus in this case, so we need not
address the viability of any such claims here.
Our decision to abide by the final decision rule, even when
an admittedly important right is at stake, is utterly
unexceptional. The Supreme Court and this court have
“routinely require[d] litigants to wait until after final judgment
to vindicate valuable rights.” Mohawk Indus., 558 U.S. at 108-
09; see, e.g., Flanagan v. United States, 465 U.S. 259, 262-63,
270 (1984) (Sixth Amendment right to effective assistance of
counsel); United States v. MacDonald, 435 U.S. 850, 856-57
(1978) (Sixth Amendment right to speedy trial); Mohawk
Indus., 558 U.S. at 114 (attorney-client privilege); Doe v.
Exxon Mobil Corp., 473 F.3d 345, 348 (D.C. Cir. 2007)
(political question doctrine). Like these other interests, the
interest of a church in its religious autonomy is undoubtedly
important, but deferring review until final judgment does not
so imperil the interest as to justify the cost of allowing
immediate appeal of an entire class of relevant orders.
C. Church Autonomy Functions as a Defense to
Liability, Not an Immunity from Suit
USCCB argues that the church autonomy doctrine
“protects not only from the consequences of litigation’s results
but also from the burden of defending from suit.” Opening Br.
of Defendant-Appellant 20 (internal quotation marks and
citation omitted). It argues that post-trial review of an order
denying such protection is insufficient to vindicate the
constitutional rights at stake. In other words, in an effort to
avoid the applicable strictures of the final decision rule,
20
USCCB attempts to characterize the church autonomy doctrine
as a right not to be tried, i.e., as an immunity from suit rather
than a defense to liability. The church autonomy doctrine,
however, does not confer immunity from trial such that
immediate review is warranted.
No federal court has ever held that the church autonomy
doctrine establishes a constitutional right to immunity from suit
in cases concerning secular claims. Quite the contrary. Several
circuits have explicitly declined to characterize church
autonomy as an immunity from trial. See Garrick, 95 F.4th at
1116 (rejecting argument that the church autonomy doctrine
confers “immunity from trial”); Herx, 772 F.3d at 1090
(rejecting argument that the First Amendment “provides an
immunity from trial, as opposed to an ordinary defense to
liability”); Tucker, 36 F.4th at 1025 (rejecting “novel argument
that the ‘ministerial exception’ . . . immunizes religious
employers altogether from the burdens of even having to
litigate such claims”); Klein, 2024 WL 1092324, at *1 (church-
autonomy doctrine “does not immunize religious groups or
figures from suit”). As the Second Circuit has explained,
“[w]hen a case can be resolved by applying well-established
law to secular components of a dispute, such resolution by a
secular court presents no infringement upon a religious
association’s independence.” Belya, 45 F.4th at 630.
Put simply, if a plaintiff can plausibly assert a secular
claim capable of resolution according to neutral principles of
law, the First Amendment does not bar judicial examination of
that claim. The church autonomy doctrine protects against
judicial interference in ecclesiastical matters; it does not
provide religious organizations with a blanket immunity from
suit, discovery, or trial.
21
Treating church autonomy as a defense rather than an
immunity is also consistent with Supreme Court precedent. In
Hosanna-Tabor, the Supreme Court made clear that the
ministerial exception “operates as an affirmative defense to an
otherwise cognizable claim, not a jurisdictional bar.” 565 U.S.
at 195 n.4. Even though Hosanna-Tabor concerned the
ministerial exception, the Supreme Court has since recognized
the exception as a mere “component” of the church autonomy
doctrine. See Our Lady of Guadalupe, 591 U.S. at 746. Thus,
when the two decisions are considered together, it seems clear
that the Court confirmed the church autonomy doctrine is not
jurisdictional; it is an affirmative defense. And, like any other
defense, a defense based on church autonomy can be
adequately addressed after trial.
D. The Cases Cited by USCCB Do Not Change the Legal
Landscape
Despite the mountain of precedent against its position,
USCCB argues that there is caselaw that supports its view in
favor of collateral order appeals of church autonomy orders.
We disagree. The cases cited by USCCB clearly do not change
the result in this case.
First, USCCB cites Whole Woman’s Health v. Smith,
where the Fifth Circuit allowed an interlocutory appeal of an
order enforcing a subpoena against a third-party religious
organization. 896 F.3d 362 (5th Cir. 2018). A key distinction,
however, exists between Whole Woman’s Health and this case:
There, the Fifth Circuit rested its decision on “the predicament
of third parties” who “cannot benefit directly from [post-trial]
relief.” Id. at 367-68. As the Seventh Circuit explained in
Garrick, when distinguishing Whole Woman’s Health, “[a]n
order conclusively determining that a nonparty religious
organization must be subjected to extensive discovery . . . is
22
not comparable to the class of order at issue here.” 95 F.4th at
1116 n.9 (emphasis added). At issue here – and in Garrick – is
a class of orders concerning a party to the litigation capable of
benefiting directly from a post-judgment appeal. Accordingly,
Whole Woman’s Health is inapposite to the issue at hand.
Second, USCCB cites McCarthy v. Fuller, 714 F.3d 971
(7th Cir. 2013). In McCarthy, a United States representative of
the Holy See, the central governing body of the Roman
Catholic Church, issued a declaration that Fuller was not a nun
or religious sister. 714 F.3d at 973-74. Nevertheless, the district
court planned to instruct the jury to determine whether Fuller
was a nun in good standing with the Catholic Church. Id. at
976. In light of these facts, the Seventh Circuit held in
McCarthy that the order “requir[ing] a jury to answer a
religious question” was immediately appealable. Id.
However, as the Seventh Circuit later explained in
Garrick, “[t]he circumstances [in McCarthy] were remarkably
extreme—the judge had determined that the jury’s judgment
could preempt that of the Holy See on a decidedly doctrinal
question, in clear violation of church autonomy.” 95 F.4th at
1113-14. The Seventh Circuit also made it clear that
“McCarthy did not create a new category subjecting denials of
a church autonomy defense to immediate appeal.” Id. at 1114.
Third, USCCB argues that “this Court has ‘long allowed’
interlocutory appeal of ‘alleged injur[ies] [sic] to First
Amendment rights during the pendency of a case.’” Opening
Br. of Defendant-Appellant 20 (quoting In re Stone, 940 F.3d
1332, 1340-41 (D.C. Cir. 2019)). According to USCCB,
infringing First Amendment rights for even minimal periods of
time results in irreparable harm. As such, an appeal filed after
a time-consuming trial is not an effective remedy. Our
precedent, however, has never gone so far as to say that a mere
23
alleged violation of the First Amendment is sufficient for
collateral order appeal.
In each of the cases cited by USCCB, this court indicated
that an interlocutory appeal would be permissible only because
there was a dispute over an order restricting speech during the
pendency of the case. See Trump, 88 F.4th at 1001; In re Stone,
940 F.3d at 1340; In re Rafferty, 864 F.2d 151, 154 (D.C. Cir.
1988); see also Marceaux v. Lafayette City-Parish Consol.
Gov’t, 731 F.3d 488, 490-91 (5th Cir. 2013). In these cases
involving orders restricting speech, waiting for post-judgment
review would have effectively defeated the right to any review
at all. By the time judgment was entered, the party complaining
would have already lost its right to speak while the case was
pending. We have no such scenario in this case.
USCCB also cites a similar case, Roman Catholic Diocese
of Brooklyn v. Cuomo, 592 U.S. 14 (2020), which concerned a
district court’s denial of a preliminary injunction. Even though
the order did not involve a restriction on speech, it did involve
a restriction on the ability of the faithful to attend religious
services during the pendency of litigation – a right that could
not be restored after trial. No such restriction on speech or
religious practice is present in this case to justify interlocutory
review. Furthermore, the courts of appeals have jurisdiction
under 28 U.S.C. § 1292(a)(1) to address interlocutory appeals
challenging the issuance of a preliminary injunction by a
district court. The District Court in this case has not issued an
injunction against USCCB.
Fourth, USCCB cites some cases in which we have noted
that there is an “immediate harm arising from the process of
inquiry into religious disputes.” Br. of Defendant-Appellant 21
(citing Cath. Univ. of Am., 83 F.3d at 466-67; Univ. of Great
Falls v. NLRB, 278 F.3d 1335, 1341-43 (D.C. Cir. 2002);
24
Duquesne Univ. of the Holy Spirit v. NLRB, 947 F.3d 824, 829-
30 (D.C. Cir. 2020)). Importantly, none of these cases involved
an application of the collateral order doctrine. Rather, all three
cases involved an appeal after a final decision had been issued.
None of the cited cases even suggests that “harm arising from
the process of inquiry into religious disputes” warrants
immediate review. Br. of Defendant-Appellant 21.
Finally, USCCB argues that its “specific First Amendment
rights imperiled here are structural protections akin to the
separation of powers, which have long received interlocutory
review.” Opening Br. of Defendant-Appellant 22. Even if we
were to accept USCCB’s claim that church autonomy is a
structural protection, “[m]ost separation-of-power claims are
clearly not in [the] category” of collaterally appealable orders.
United States v. Cisneros, 169 F.3d 763, 769 (D.C. Cir. 1999).
In Cisneros, a former Secretary of Housing and Urban
Development argued that “the very conduct of the trial” against
him would “violate the separation of powers by causing the
courts to invade the exclusive constitutional province of
coordinate branches.” Id. Like Cisneros, USCCB makes a
separation-of-powers claim to avoid trial. Such reliance on the
separation of powers, however, was not enough in Cisneros
and it is not enough here. This court held in Cisneros that
“[n]othing Cisneros argue[d] amount[ed] to a right not to be
tried.” Id. “Cisneros, like any criminal defendant, may raise
separation of powers as a defense. But it scarcely follows that
whenever a defendant relies on the separation-of-powers
doctrine, the defendant’s right must be treated as if it rested on
an explicit guarantee that trial will not occur.” Id. (cleaned up)
(internal quotation marks and citation omitted). In other words,
invoking separation of powers is not enough to transform a
defense into an immunity. Rather, any “constitutional affront”
to the separation of powers “flowing from an adjudication”
25
would be “fully reviewable on appeal should the defendant be
convicted.” Id. Thus, even assuming a violation of the church
autonomy doctrine is akin to a violation of the separation of
powers, that violation can be reviewed upon post-judgment
appeal.
To conclude, the federal courts of appeals – and the
Supreme Court – routinely reject parties’ efforts to invoke the
collateral order doctrine for a wide variety of important rights.
And each circuit that has considered extending the collateral
order doctrine to cover the right to church autonomy has
declined. We join our sister circuits in doing the same: Claims
regarding the right to church autonomy are reviewable upon
final judgment and, accordingly, not subject to collateral order
appeal. And, as explained above, should extreme
circumstances arise where immediate relief is required,
litigants have alternative appellate options at their disposal.
E. Final Considerations
We have already made the point that a pleading-stage
denial of the church autonomy defense is clearly reviewable
upon final judgment. This holding is sufficient to decide this
case. However, lest the point be missed, it is important to note
that a pleading-stage denial also lacks the conclusiveness
required for collateral order appeal. This case remains at the
earliest stages of litigation with many more steps before the
finish line. USCCB can continue to assert the church autonomy
defense during discovery, in future dispositive motions, before
trial, and during trial. The contested District Court order
therefore is not “conclusive” because it is not a “final rejection”
of USCCB’s asserted church autonomy defense. Indeed, for an
order to conclusively determine the issue, there must be “no
further steps that can be taken in the District Court to avoid”
infringing on USCCB’s religious autonomy. Mitchell, 472 U.S.
26
at 527 (internal quotation marks omitted). Here, it is possible
that at some later stage, USCCB’s church autonomy defense
may require limiting the scope of the suit or the extent of
discovery, or even warrant dismissal of the suit in its entirety;
these are “further steps” that remain available to the District
Court to safeguard against First Amendment violations.
USCCB argues that collateral order review is warranted
because the District Court “conclusively determined
. . . whether USCCB may be compelled to defend on the
merits.” Opening Br. of Defendant-Appellant 24. The
defendants in Belya made the same argument before the
Second Circuit: “[T]heir claim is that the district court’s orders
are the final decision on whether discovery can proceed; thus,
Defendants contend, the orders constitute a final rejection.” 45
F.4th at 631 (internal quotation marks omitted). Our sister
circuit rejected that argument in Belya, and we do so here as
well.
USCCB cites Process & Industrial Developments Ltd. v.
Federal Republic of Nigeria, 962 F.3d 576 (D.C. Cir. 2020), in
support of its position that it has a right to collateral order
review to ensure that it will not be required to go through
discovery. This decision is inapposite because it involves the
application of foreign sovereign immunity. Id. at 581. Unlike
the church autonomy doctrine, questions of sovereign
immunity have long been held by the Supreme Court and this
court to be immediately appealable. See, e.g., P.R. Aqueduct,
506 U.S. at 147; Foremost–McKesson, Inc. v. Islamic Republic
of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990). As we have
explained, however, pleading-stage denials of a church
autonomy defense do not satisfy the requirements of the
collateral order doctrine.
27
III. CONCLUSION
Because USCCB’s appeal falls outside of the collateral
order doctrine’s narrow and selective class of claims subject to
interlocutory review, we dismiss the appeal for lack of
jurisdiction without reaching the merits of USCCB’s church
autonomy defense or USCCB’s argument that O’Connell failed
to state a claim.
So ordered.