Petition for Writ of Certiorari — United States Conference of Catholic Bishops, Petitioner v. David O'Connell

i

APPENDIX TABLE OF CONTENTS

Opinion, O’Connell v. United States

Conference of Catholic Bishops,

No. 23-7173 (D.C. Cir. Apr. 25, 2025)............... 1a

Transcript of 11/17/23 Status Hearing & Oral

Ruling, O’Connell v. United States

Conference of Catholic Bishops,

No. 20-1365 (D.D.C. Nov. 19, 2023),

Dkt. 39 ............................................................. 31a

Order, Denying Petition for Rehearing

En Banc, O’Connell v. United States

Conference of Catholic Bishops,

No. 20-1365 (D.D.C. Nov. 4, 2025) .................. 48a

28 U.S.C. 1291 ...................................................... 95a

Docket, O’Connell v. United States

Conference of Catholic Bishops,

No. 23-7173 (D.C. Cir.) .................................... 96a

Docket, O’Connell v. United States

Conference of Catholic Bishops,

No. 20-1365 (D.D.C.) ..................................... 134a

Docket, O’Connell v. United States

Conference of Catholic Bishops,

No. 20-31 (D.R.I.) .......................................... 164a

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Plaintiff’s Class Action Complaint,

O’Connell v. United States Conference

of Catholic Bishops, No. 20-1365

(D.D.C. Jan. 22, 2020), Dkt. 1 ....................... 169a

Answer of Defendant, O’Connell v.

United States Conference of

Catholic Bishops, No. 20-1365

(D.D.C. Jul. 6, 2020), Dkt. 20........................ 194a

Transcript of Motion Hearing,

O’Connell v. United States Conference

of Catholic Bishops, No. 20-1365

(D.D.C. Jan. 28, 2021), Dkt. 28 ..................... 225a

Joint Status Report and Discovery Plan,

O’Connell v. United States Conference

of Catholic Bishops, No. 20-1365

(D.D.C. Jan. 3, 2024), Dkt. 42 ....................... 295a

1a

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.

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Aaron M. Streett and Matthew M. Hilderbrand

were on the brief for amicus curiae Dr. Lael

Weinberger in support of appellant.

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

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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 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, multimillion 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

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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 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

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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. Pleadingstage 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 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

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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, 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

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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

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

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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 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

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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 . . . . 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

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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 narrow

exception should stay that way and never be allowed

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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

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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 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

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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.”).

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

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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 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

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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, 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”).

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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 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

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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 (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. 2314105, 2024 WL 1092324, at *1 (11th Cir. Mar. 13,

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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-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

19a

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 87172.

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

20a

infringements nevertheless occur, then litigants, once

armed 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 churchdefendant 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.

21a

The Supreme Court has said that these casespecific 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 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 (attorneyclient 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.

22a

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, 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

23a

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.

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.

24a

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 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

25a

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 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

26a

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); Duquesne

Univ. of the Holy Spirit v. NLRB, 947 F.3d 824, 829-30

(D.C. Cir. 2020)). Importantly, none of these cases

27a

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

28a

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” 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 pleadingstage 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

29a

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. 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 DefendantAppellant 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

30a

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.

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.

31a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

David O’Connell,

Plaintiff,

CA No. 20-1365 (JMC)

v.

United States Conference

of Catholic Bishops,

Defendant.

Washington, D.C.

Friday, November 17,

2023

2:30 p.m.

TRANSCRIPT OF STATUS HEARING BEFORE

THE HONORABLE JIA M. COBB

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For Plaintiff:

MARTIN WOODWARD, ESQ.

Kitner Woodward PLLC 13101

Preston Road

Suite 110

Dallas, TX 75240

SIMON C. FRANZINI, ESQ.

Dovel & Luner LLP

201 Santa Monica Boulevard

Suite 600

Santa Monica, CA 90401

KEVIN T. BAINE, ESQ.

EMMET T. FLOOD, ESQ.

RICHARD S. CLEARY JR, ESQ.

Williams & Connelly LLP

32a

For Defendant:

680 Maine Avenue SW

Washington, DC 20005

BRYAN A. WAYNE, RPR, CRR

U.S. Courthouse, Room 4704-A

333 Constitution Avenue NW

Washington, DC 20001

Court Reporter:

Proceedings reported by stenotype shorthand.

Transcript produced by computer-aided transcription.

PROCEEDINGS

(Via Videoconference)

THE DEPUTY CLERK: Good afternoon, Your

Honor. We’re on the record in civil action 20-1365,

David O’Connell versus United States Conference of

Catholic Bishops.

Starting with Plaintiff,

appearance for the record.

please

state

your

MR. WOODWARD: Martin Woodward, Kitner

Woodward PLLC, for the plaintiff.

MR. FRANZINI: Good afternoon, Your Honor.

Simon Franzini, from Dovel & Luner, for the plaintiff.

MR. BAINE: Good afternoon, Your Honor. Kevin

Baine from Williams & Connelly for the defendant.

MR. FLOOD: Good afternoon, Your Honor. Emmet

Flood from Williams & Connelly, also for the

33a

defendant, and with me in my office is a colleague from

Williams & Connelly, Richard Cleary.

THE DEPUTY CLERK: Your Honor, before you get

started, counsel, there is someone in the waiting room,

a William Quinn. Is Mr. Quinn with someone.

MR. FLOOD: Ms. Franklin, Mr. Quinn is our

client.

THE DEPUTY CLERK: Okay. I’m admitting Mr.

Quinn.

THE COURT: Okay. Good afternoon, everyone. So

we are here to allow me to resolve the pending

motions. And this case has been stuck for quite some

time, and that is certainly on the court. So I’m happy

to move things along and again hope you can

appreciate that I’m still relatively new here in dealing

with kind of onboarding backlog that we’re working

through. But, certainly, I recognize that you’ve been

very patient and appreciate that patience.

So I set this hearing so that I could issue my ruling

orally as to the pending motions. Defendant has

brought a motion to dismiss for lack of subject matter

jurisdiction, for judgment on the pleadings, and in the

alternative for summary judgment. I’m going to deny

those motions at this time and explain my reasoning

briefly on the record.

After putting my reasoning on the record, however,

I do want to discuss not only next steps in terms of

discovery, but also this was filed as a putative class

action and I want to discuss a way in which, as you

have your conferences for discovery, can determine

whether or not that motion for class certification can

be briefed as early as possible. Because I imagine that

34a

if this is not a class action that that changes a lot about

this case. We can deal with that after I put my

reasoning on the record.

I’ll jump right to my reasoning. The factual

background the parties are well aware about. The

motion to dismiss for lack of subject matter

jurisdiction is a threshold issue, so I’ll start there.

As the parties recognize, federal courts lack

jurisdiction over disputes that cannot be resolved

without extensive inquiry into religious law and

polity. This is the ecclesiastical abstention doctrine,

and I reserve the parties to Serbian E. Orthodox

Diocese for U.S.A. and Canada v. Milivojevich, 426

U.S. 696 (1976).

There are, however, narrow exceptions top this.

The Court can decide church-related disputes if they

can do so without being unduly entangled in matters

of ecclesiastical cognizance, or if they can apply

neutral principles of law. And these questions are

treated as jurisdictional.

Accordingly, when a defendant moves to dismiss

for lack of subject matter jurisdiction under Rule

12(b)(1), the plaintiff bears the burden of establishing

that a court has subject matter jurisdiction.

Although I can consider matters outside the

pleadings and the motion bears closer scrutiny than a

motion under, say, Rule 12(b)(6), I am still required to

accept the complaint’s factual allegations as true, and

the plaintiff is afforded the benefit of all reasonable

inferences.

In its motion, defendant argues that the Court

lacks subject matter jurisdiction over this case

35a

because, on its face, the dispute raises two basic

questions about how the highest authorities of the

church may choose to allocate funds.

And defendant is correct that the doctrine would

prevent me from reviewing decisions involving

matters of church government as well as those of faith

and doctrine, and this would include any decisions

about the organization’s determination of whose voice

speaks for the church, whether someone may worship

at church, matters that are purely ecclesiastical even

if they affect civil rights. But the doctrine does not

prevent the Court from reviewing decisions when it’s

possible to do so using completely neutral principles of

law. And that’s a proposition from Jones v. Wolf at 443

U.S. 595 (1979).

Importantly for this case, alleged fraud or collusion

may fall into the neutral principles category where

civil court review is appropriate. And the reasoning for

that exception is that when a dispute is purely secular,

even if it involves a religious-affiliated organization,

the perceived danger that, in resolving interchurch

disputes, the state will become entangled in

essentially religious controversies or intervene on

behalf of groups espousing particular doctrinal belief

is diminished.

And that’s from General Council of the United

Methodist Church v. California Superior Court, also a

Supreme Court case, 439 U.S. 1355 (1978). I do find,

as pled, the complaint falls within the neutral

principles category.

The plaintiff alleges, in short, that defendant made

affirmative misrepresentations and fraudulent

omissions, was unjustly enriched and breached a

36a

fiduciary duty. The elements of these claims include

falsity of statements, knowledge and intent on the part

of the statement makers, reliance, whether a benefit

was conferred and retained, and whether a fiduciary

duty was created and breached. Those questions can

be resolved using neutral principles of law.

In other words, there’s no need that I inquire into

church operations, religious doctrine, religious

hierarchy, or religious decisionmaking to evaluate the

merits of this 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.

I also understand that the case will not require me

to consider church governance, the makeup of church

congregations or anything related to membership and,

importantly, to make any judgments whatsoever

about the way the church chooses to use its funds.

To be sure, it would be improper for me to delve

into those purely religious determinations in order to

rule. For example, I could not rule that the church

could only exercise its financial discretion in one way

or another. But I don’t believe that’s required for the

Court to determine, under straightforward commonlaw principles, whether or not fraud took place in this

case or for a fact-finder to make that determination.

As such, at this stage, it’s not apparent to me that

the resolution of the claims will involve impermissible

religious entanglement, and so I conclude that I do

have subject matter jurisdiction in this case.

I’ll turn next briefly to stating my reason for

denying my motion for judgment on the pleadings and

in the alternative for summary judgment. As the

37a

parties are well aware, entering judgment on the

pleadings is appropriate if the movant shows that

there is no disputed material fact and they are entitled

to judgment as a matter of law.

The D.C. Circuit has recognized that such motions

-- I’m sorry -- that was the summary judgment

standard. But for Rule 12(c), the D.C. Circuit has

recognized that such motions are rare and that the

party seeking judgment shoulders a heavy burden of

justification.

I am required to accept the nonmoving party’s

allegations as true, and consider false the controverted

assertions of the moving party. Judgment on the

pleadings are not appropriate if there are any issues

of fact that, if proved, would defeat recovery even if I

am convinced that the opposing party is unlikely to

prevail at trial.

In sum, if there are any material questions

presented by the pleadings, I cannot grant a Rule 12(c)

motion, and I find that to be the case.

I’m going to start with the fraud claims. As the

parties are well aware, under D.C. law, a claim for

fraudulent misrepresentation or omission requires a

showing that a defendant made a false representation

of, or willfully omitted, a material fact, had knowledge

of the misrepresentation or willful omission, intended

to induce another to rely on the misrepresentation or

willful omission, that the other person acted in

reliance on the misrepresentation or willful omission,

and that damages were suffered as a result.

I understand plaintiff to be making two fraudrelated claims: fraudulent misrepresentation and

fraudulent concealment. The complaint alleges

38a

fraudulent misrepresentation. O’Connell contends

that defendant communicated to him that money he

donated would be used exclusively for victims of war,

oppression, natural disaster or disease, and that

defendant knew or should have known that the

proceeds were in fact used for noncharitable purposes;

and the plaintiff contends that these representations

constitute fraudulent misrepresentation. The plaintiff

also contends that he donated to defendant based on

these representations and that the defendant intended

for him to rely on its statements in his decision to

donate.

The requirement to plead fraudulent concealment

are substantially the same. However, while fraudulent

misrepresentation turns on a false representation,

fraudulent concealment turns on an omission. And

under D.C. law, mere silence does not constitute fraud

unless there is a duty to speak. And a duty to speak

attaches in an instance where a material fact is

unobservable or undiscoverable by an ordinarily

prudent person upon reasonable inspection -- and

that’s from Sununu v. Philippine Airlines, Inc., 792

F.Supp.2d 39, (DDC 2011) -- or as a result of partial

disclosure.

So, in this complaint, plaintiff alleges that

defendant knew or should have known that the

charitable fund was not used to fund charitable

purposes exclusively as represented. And because of

this knowledge, plaintiff alleges that defendant’s

failure to inform prospective donors of the true use of

funds constitutes unlawful concealment.

Further, plaintiff alleges that the defendant had a

duty to disclose because it had exclusive knowledge of

the suppressed facts and made representations about

39a

what the funds would be used for. Again, at this very

early stage of the litigation, I’m required to draw all of

those inferences in plaintiff’s favor, and I do find that

material disputes of fact remain based on the

defendant’s answer and the briefing, including

whether any statements were in fact false, whether

defendant was actually involved in the alleged

statements, whether the defendant knew the

statements were false, the defendant’s intentions

regarding the statements, and plaintiff’s reliance on

the representations.

For these reasons, taking the allegations as true, I

deny the motion with respect to Count 1. And I’ll

briefly just say, with respect to the 9(b) requirements,

I know there was some discussion in the pleadings

about whether or not such a motion is appropriate

after an answer. I do note that defendants did answer

the complaint, but don’t think it’s necessary for me to

resolve the question, because I find that the complaint

contains enough detail to satisfy the heightened

pleading requirements.

I do think the fact that there was an answer is

relevant to the overall purpose of the rule, which is to

provide enough information to the defendant to be able

to respond to the complaint, which isn’t done, but I

think that Plaintiff has alleged a narrow time frame,

persons involved, what was said; and all of this is, in

my view, sufficiently detailed to satisfy a Rule 9(b).

My findings with respect to unjust enrichment are

similar to my ruling on the first count. It’s just simply

at this stage, prediscovery in the case, where I’m

required to take plaintiff’s allegations as true, I believe

that plaintiff’s complaint checks the relevant boxes.

40a

Under D.C. law, a claim for unjust enrichment

requires that a plaintiff confer a benefit on a defendant

who in turn retained the benefit. Further, it must be

the case that, under the circumstances, the

defendant’s retention of the benefit is unjust; and in

the complaint, plaintiff alleges that defendant

retained the benefit of his donations to the fund,

Peter’s Pence fund, and he alleges that the donations

were induced by false representations and omissions

and that the retention of these donations was unjust.

And I know that there are disputes about whether

in fact the defendant did retain the donations or

whether the defendant is actually the proper

defendant at all. These factual disputes do not allow

me to grant the motion.

Finally, for breach of fiduciary duty, under District

of Columbia law, the plaintiff must allege facts

sufficient to establish that the defendant owed such a

duty to a plaintiff and breached that duty. And they

must also plead probable cause and injury, and

plaintiff makes these allegations in his complaint, that

a fiduciary duty was generated by certain promotions,

advertisements, the overseeing and collection of funds,

and that the defendant breached the duty by not

ensuring that the charitable contributions were spent

in accordances with promises made.

As plaintiff recognizes, this question about a

fiduciary relationship is often a fact-intensive inquiry

that’s often based on a fuller record, and given my

rulings on the other matters and at this earlier stage,

I do think it would be premature and not appropriate

for me to grant the motion given plaintiff’s allegation.

41a

And finally, there was a motion to treat the motion

in the alternative as one for summary judgment.

Plaintiff has responded to defendant’s statements by

representing that he isn’t in a position to respond

because he needs further discovery.

Although I did not see that the motion included a

declaration to support that contention, I do agree that

plaintiff would be entitled to some information to have

a reasonable opportunity to present all the material

that is pertinent to the motion. So I will decline to

convert the motion to one for summary judgment at

the time, and deny it certainly without prejudice.

So, again, thank you for your patience as I get this

case unstuck, but that’s my ruling. I think what we

need to do next is set a date for a scheduling conference

and a deadline for a Rule 26(f) report.

But I wanted to just take a step back and ask

plaintiff’s counsel, because this case has been filed as

a putative class action, and I know that the defense

has not moved, at least yet, to strike any class

allegations, and I certainly haven’t delved into that

issue; but it seems to me that there’s some question

particularly concerning, I would say -- to the extent

that the fraud counts require some showing about

individual people who donated their individual

understanding and reliance, that there may be some

questions about commonality.

I mean, I don’t know -- I don’t want to put you on

the spot, but I guess my question is do you think that

we can set a schedule that would allow briefing on the

class certification question early, because I imagine if

this case is not certified as a class, then that changes

a lot about the case. I don’t know how much is at stake

42a

if this were just an individual plaintiff case and not a

class. So maybe you can speak to that, Mr. Woodard.

MR. WOODWARD: Sure. Thanks, Your Honor. I

agree that it makes sense to proceed with class

certification, or at least as soon as is reasonable. In

connection what that, though, we will need some

discovery, and we are ready to move forward just as

soon as we can with the 26(f) conference and a 26(f)

report.

We actually had already served a request for

production of documents on the day that the defendant

filed its answer. That was then followed, of course,

with the motions that Your Honor just ruled on, and

the request for production hasn’t been responded to.

But it will be useful, we think, in sort of outlining the

types of discovery we’re going to be seeking in

connection with our class certification motion, and it’s

certainly the groundwork and foundation for what we

think to be a productive discussion about how long it

might take defendants to gather up and produce the

materials that we’re asking for that will help resolve

the issues.

Then briefly, just to respond to Your Honor’s point

about the relationship of the fraud claims that we’ve

alleged to class certification issues, there’s plenty of

case law that speaks to an inference of reliance if

reliance is even to be a required element where you

have, as we’ve alleged, a fraudulent scheme that’s

more or less uniform, we think that that is -- the

discovery is going to bear that out. And if that in fact

proves to be the case, that is likely to be one of the

arguments that you’ll hear when we move to certify

that claim, if we choose to do so.

43a

THE COURT: Okay. And that’s fair. And again, I’m

not suggesting that I’m ruling, but I just gathered that

it seems like a case where, to the extent discovery can

be bifurcated, to deal with class certification first. And

it may be possible that there’s no way to disentangle

from the merits and that that’s not possible.

So maybe instead of saying bifurcating discovery, if

there’s some way that discovery can be phased such

that some of these issues can be addressed early, that

would be beneficial. Again, it may be completely

impossible to disentangle, and I’ll let you all discuss

that. I certainly don’t want to have overlapping and

confusing phases of discovery where parties don’t

know what box that they’re in.

And then similarly, Mr. Woodward, just because I

noted this in the briefing that there was some question

about whether or not this is the proper defendant,

obviously, that’s a question as well that we would want

to resolve early. And so I don’t know if you’ve had any

conversations with defense counsel about that issue,

but I guess you can conduct discovery and then we can

set a deadline for amending pleadings at the

appropriate time.

Okay. So -- and then who’s speaking for the

defense?

MR. FLOOD: I am, Your Honor. Mr. Flood.

THE COURT: Okay. Mr. Flood, so that’s my ruling,

again, without prejudice, for any further motions that

you may file, I just think it’s premature at this stage

given the allegations in the complaint. Do you have a

sense of how much time it will take for the 26(f) report

to be filed in the conference? How much time do you

need? And I’ll ask Mr. Flood the same thing.

44a

MR. FLOOD: I don’t have a clear sense, Your

Honor. Next week is challenging -THE COURT: Yes.

MR. FLOOD: -- to confer. And then December, of

course, is holiday month, but I should think sometime

in December even if it’s closer to the holidays at the

end, and I would propose talking to Mr. Woodward and

Mr. Franzini and then figuring out what we can do.

But I would think, with allowance for the holidays,

several weeks ought to be enough time.

MR. WOODWARD: We agree. I think that’s right.

THE COURT: Mr. Flood, do you have a proposed

date, or do you want to confer and submit a proposal

to me?

MR. WOODWARD: I think it makes sense, Your

Honor, for us to confer and submit a proposal. I’m not

sure what Mr. Flood feels about that. If it’s easier to

propose dates, just looking at my calendar, I could pick

-- just the broad parameters what you laid out, I think

maybe it would be most productive for us to confer and

then come back to you with what works for both sides.

THE COURT: Okay. Why don’t we do this: Why

don’t you all confer, and if you send a joint email to

chambers letting us know the time frame that you

want to have the scheduling conference in and the

time frame or date that you’ve agreed to submit the

discovery planning report, the Rule 26(f) report, then

we’ll just issue a minute order memorializing those

dates.

MR. WOODWARD: That sounds good, Your Honor.

Thank you.

45a

THE COURT: All right. Is there anything else we

should address today before concluding the hearing,

and then I’ll receive your information and set the

minute order for the scheduling conference?

MR. FLOOD: Your Honor, I would like to mention

just one thing by way of what might informally be

thought of as a possible heads-up.

THE COURT: Okay.

MR. FLOOD: We’ll want to confer, our legal team,

with our client about Your Honor’s ruling.

THE COURT: Okay.

MR. FLOOD: But as Your Honor pointed out at the

beginning, the ecclesiastical abstention doctrine

partakes of something jurisdictional, and so I think we

have a live continuing question now of whether there

is subject matter jurisdiction.

THE COURT: Okay.

MR. FLOOD: We are at least going to give

consideration of whether that calls for an immediate

appeal of one kind or another.

THE COURT: Sure.

MR. FLOOD: And related to that is the

consideration of conducting discovery, you know, when

that question is pending is also something covered or

not by the same doctrine.

THE COURT: Sure.

MR. FLOOD: It doesn’t mean of course we won’t be

meeting with Mr. Woodward per your directions we of

course will but I just thought I’d signal that for you

Your Honor and let’s see how our conversations go and

46a

we may be back with you with something in the

manner of a motion there.

THE COURT: Sure. I appreciate that. Thank you

for letting me know.

MR. FLOOD: Thank you, Your Honor.

THE COURT: Okay. If that’s it, I will look forward

to hearing from you, and I will issue a minute order. If

you do file such a motion, I’ll be on the lookout for it,

and I promise I will resolve it promptly.

MR. FLOOD: Thank you. Actually, Your Honor, I

do have one other question just obviously without

purporting to do what I cannot do, namely, fix for you

or have you tell us with any determination you may

not have made, but does Your Honor intend to reduce

your oral ruling today for an order for the docket? And

the reason I ask of course is if we did think an appeal

was necessary, I think the law is we’ve gotta have

something on the docket to start the timeline. So that’s

just an open question, not necessarily looking for an

answer today, just an expectation question.

THE COURT: Sure. I was just going to put an order

that says for the reasons stated orally on the record

that the motions are denied. My understanding was

that was sufficient in terms of...

MR. FLOOD: And I’m not quarreling with Your

Honor at all, so much as I think there are some

technical features of the D.C. Circuit regime not

shared with others that can affect the running of the

time. I don’t think it affects our ability actually to file

something.

THE COURT: Right.

47a

MR. FLOOD: That was the nature of my inquiry.

And I suppose if we have a transcript from the court

reporter, that will go a long way toward.

THE COURT: But to your question, yes. I’m going

to put an order on the docket that formally denies the

motion, but it will just simply say for the reasons

stated orally on the record.

MR. FLOOD: I think that answers my question.

Thank you, Your Honor.

THE COURT: Okay. Thank you so much. Have a

good one.

(Proceedings adjourned at 2:56 p.m.)

*

*

*

*

*

*

CERTIFICATE

I, BRYAN A. WAYNE, Official Court Reporter,

certify that the foregoing pages are a correct transcript

from the record of proceedings in the above-entitled

matter.

/s/ Bryan A. Wayne

Bryan A. Wayne

48a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-7173

September Term, 2025

1:20-cv-01365-JMC

Filed On: November 4, 2025

David O'Connell,

Appellee

v.

United States Conference of Catholic Bishops,

Appellant

BEFORE:

Srinivasan, Chief Judge;

Henderson, Millett, Pillard,

Wilkins, Katsas, Rao***,

Walker*, Childs, Pan, and

Garcia, Circuit Judges; and

Edwards**, Senior Circuit Judge

ORDER

Appellant’s petition for rehearing en banc was

circulated to the full court, and a response and a vote

were requested. Thereafter, a majority of the judges

eligible to participate did not vote in favor of the

petition. Upon consideration of the foregoing, the

motions for invitation to file briefs as amici curiae in

support of appellant’s petition for rehearing en banc,

the lodged briefs, and the 28(j) letters, it is

ORDERED that the petition for rehearing en banc

be denied. It is

49a

FURTHER ORDERED that the motions for

invitation to file briefs as amici curiae be granted. The

Clerk is directed to file the lodged briefs.

Per Curiam

FOR THE COURT

Clifton B. Cislak, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk

* A statement by Circuit Judge Walker, concurring in

the denial of rehearing en banc, is attached.

** A statement by Senior Circuit Judge Edwards,

concurring in the denial of rehearing en banc, is

attached.

*** A statement by Circuit Judge Rao, dissenting from

the denial of rehearing en banc, is attached.

50a

WALKER, Circuit Judge, concurring in the denial of

rehearing en banc:

David O’Connell attends Sacred Heart Catholic

Church in East Providence, Rhode Island. One

Sunday, in response to a call for alms from the pulpit,

O’Connell made a cash donation to Peter’s Pence. He

understood the special collection to be exclusively for

“emergency assistance to the neediest people around

the world.” JA 26.

Peter’s Pence funds do not always go directly to

those in need. Some money is invested or used for

other administrative purposes. Believing himself

defrauded, O’Connell sued the United States

Conference of Catholic Bishops, the church body that

administers the Peter’s Pence collection in the United

States.

Before the district court, the Conference of

Catholic Bishops argued that a branch of government

(the Judiciary) cannot wade into a dispute about

church governance. 1 The district court disagreed, and

in a brief oral ruling, it concluded that proceeding

with discovery would not violate the church-autonomy

doctrine. The Conference of Catholic Bishops

appealed that interlocutory order, and a panel of this

Cf. T.S. Eliot, Murder in the Cathedral 25 (1935)

(“We do not know very much of the future / Except that

from generation to generation / The same things

happen again and again.”).

1

51a

court dismissed the appeal for lack of appellate

jurisdiction. 2

In its opinion, the panel found “the unanimity of

our sister circuits on this question to be notable and

their reasoning persuasive.” 3 But unanimity of

holdings should not be mistaken for unanimity of

opinion. The panel’s decision conflicts with the

conclusions of many sister-circuit colleagues. 4

This “chorus of circuit-court dissenters” has

persuasively explained why ecclesial defendants are

entitled to appeal denials of motions to dismiss on

See O’Connell v. United States Conference of

Catholic Bishops, 134 F.4th 1243, 1248-49 (D.C. Cir.

2025).

2

3

Id. at 1255.

See, e.g., Garrick v. Moody Bible Institute, 95 F.4th

1104, 1117 (7th Cir. 2024) (Brennan, J., dissenting);

Belya v. Kapral, 59 F.4th 570, 573 (2d Cir. 2023) (Park,

J., joined by Livingston, C.J., Sullivan, Nardini, and

Menashi, JJ., dissenting from denial of rehearing en

banc); Tucker v. Faith Bible Chapel International, 53

F.4th 620, 625 (10th Cir. 2022) (Bacharach, J., joined

by Tymkovich and Eid, JJ., dissenting from denial of

rehearing en banc); cf. McRaney v. North American

Mission Board of Southern Baptist Convention, Inc.,

980 F.3d 1066, 1067 (5th Cir. 2020) (Ho, J., joined by

Jones, Smith, Elrod, Willett, and Duncan, JJ.,

dissenting from denial of rehearing en banc); id. at

1075 (Oldham, J., joined by Smith, Willett, Duncan,

and Wilson, JJ., dissenting from denial of rehearing en

banc).

4

52a

church-autonomy grounds. 5 The church-autonomy

doctrine protects religious bodies against “timeconsuming and expensive litigation” when “the

litigation itself” would “enmesh[ ] the courts in

ecclesiastical disputes.” 6 So when a district court

erroneously denies a motion to dismiss based on the

church-autonomy doctrine, the district court

threatens the religious defendant with irreparable

First Amendment harm by proceeding to

Hanson v. District of Columbia, 120 F.4th 223, 264

(D.C. Cir. 2024) (Walker, J., dissenting). Legal

scholars too have joined the chorus. See, e.g., Adam

Reed Moore, A Textualist Defense of a New Collateral

Order Doctrine, 99 Notre Dame L. Rev. Reflection 1,

44-45 (2023); see also Lael Weinberger, Is Church

Autonomy Jurisdictional?, 54 Loy. U. Chi. L. J. 471,

503-05 (2023).

5

Tucker, 53 F.4th at 627 (Bacharach, J., dissenting

from denial of rehearing en banc).

6

53a

discovery and possibly trial. 7 And that

immediately appealable collateral order. 8

is

an

This court’s panel suggested that the district court

could begin to adjudicate O’Connell’s fraud claims by

applying “neutral principles of law” that do not

threaten “judicial interference in ecclesiastical

matters.” 9 I am not so sure. As Judge Bumatay wrote,

a court cannot decide “whether the Church’s

statements about its tithing policy were fraudulent”

without “necessarily settl[ing] a dispute between the

Church and a disaffiliated member concerning the

meaning of ‘tithes.’” 10

See Garrick, 95 F.4th at 1122 (Brennan, J.,

dissenting) (“it is not only the conclusions that may be

reached by the government which may impinge on

rights guaranteed by the Religion Clauses, but also

the very process of inquiry leading to findings and

conclusions” (quoting NLRB v. Catholic Bishop of

Chicago, 440 U.S. 490, 502 (1979)) (cleaned up));

Belya, 59 F.4th at 573 (Park, J., dissenting from denial

of rehearing en banc) (“litigation, including discovery

and possibly trial, on matters relating to church

governance . . . imperils the First Amendment rights

of religious institutions”).

7

See Garrick, 95 F.4th at 1117, 1121-24 (Brennan,

J., dissenting); Belya, 59 F.4th at 573, 577-82 (Park,

J., dissenting from denial of rehearing en banc);

Tucker, 53 F.4th at 625, 625-30 (Bacharach, J.,

dissenting from denial of rehearing en banc).

8

9

O’Connell, 134 F.4th at 1258.

Huntsman v. Corp. of the President of the Church

of Jesus Christ of Latter-Day Saints, 127 F.4th 784,

10

54a

Nevertheless, this case does not meet our circuit’s

exceedingly high standard for en banc review — even

if that review would be consistent with the traditions

of other circuits that go en banc more often than we

do. 11

813 (9th Cir. 2025) (en banc) (Bumatay, J., concurring

in judgment).

See, e.g., Air Line Pilots Association v. Eastern Air

Lines, Inc., 863 F.2d 891, 925 (D.C. Cir. 1989)

(Ginsburg, R.B., J., concurring in the denial of

rehearing en banc) (“Only in the rarest of

circumstances, . . . should we countenance the drain on

judicial resources, the expense and delay for the

litigants, and the high risk of a multiplicity of opinions

offering no authoritative guidance, that full circuit

rehearing of a freshly-decided case entails.” (cleaned

up)); see also D.C. Cir. R. 40(d) (“rehearing ordinarily

will not be granted”); D.C. Circuit Handbook of

Practice and Internal Procedures 58 (2024) (en banc

petitions are “rarely granted” and “are not favored”)

(citing Fed. R. App. P. 40).

11

55a

EDWARDS, Senior Circuit Judge, concurring in the

denial of rehearing en banc: The narrow issue in this

case is whether this court has jurisdiction to hear this

appeal pursuant to the collateral order doctrine. The

case law on this matter is quite clear, as the panel

explained in its opinion. See O’Connell v. U.S. Conf.

of Cath. Bishops, 134 F.4th 1243 (D.C. Cir. 2025). The

panel faithfully adhered to the law of the circuit,

which is consistent with the prevailing law in the

federal courts. Id. at 1255-57. The United States

Conference of Catholic Bishops (USCCB) seeks to

expand the collateral order doctrine to suit its

purposes. But USCCB’s claim finds no support in the

prevailing law as established by the Supreme Court

and the federal circuit courts.

The panel decision does not involve a question of

exceptional importance, nor does it conflict with any

decision of the United States Supreme Court. Fed. R.

App. P. 40(b)(2)(B), (D). Therefore, en banc review is

not justified. The panel’s decision that it lacks

jurisdiction over this case is not only perfectly

consistent with established law, but also reflects a just

application of law.

Under the “final decision rule,” 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) (citation omitted). The “collateral

order doctrine” provides a limited exception to the

final decision rule for a “small class” of collateral

rulings that, although they do not end the litigation,

56a

are appropriately deemed “final.” Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949). This

“small category includes only decisions [1] that are

conclusive, [2] that resolve important questions

separate from the merits, and [3] that are effectively

unreviewable on appeal from the final judgment in

the underlying action.” Swint v. Chambers Cnty.

Comm’n, 514 U.S. 35, 42 (1995) (citing Cohen, 337 U.S.

at 546). 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 factor, i.e., a

decision that can be effectively reviewed on appeal is

not covered by the collateral order doctrine. See, e.g.,

Mohawk Indus. v. Carpenter, 558 U.S. 100, 107-08

(2009).

The Supreme 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)). It is important to

remember that, in its current posture, this case does

not involve a dispute over “church autonomy.”

Throughout this litigation, USCCB has appeared to

assume that it has “immunity” from any action against

it. It is mistaken. The church autonomy doctrine

protects against judicial interference in ecclesiastical

matters; it does not provide religious organizations

57a

with a blanket immunity from suit, discovery, or trial.

See O’Connell, 134 F.4th at 1257-58.

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. Without in any way addressing the merits of

the parties’ claims, the District Court simply 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.

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. See

O’Connell, 134 F.4th at 1258. 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. This is

especially true in a case of this sort in which nothing

of significance has happened in the District Court.

The contested denial of a motion to dismiss in this case

is neither conclusive nor separate from the merits,

and, most importantly, it can be reviewed upon postjudgment appeal.

Indeed, the idea that there could be collateral order

review in a case of this sort would mean that there

could be a constant stream of interlocutory review

58a

petitions every time a litigant merely asserts a

religious privilege during trial (which could happen

every time the district court issued an evidentiary or

discovery order). You could have interlocutory review

after interlocutory review after interlocutory review,

endlessly. This makes no sense in light of the final

decision rule, especially given that a religious

organization always retains the right to appeal any

final judgment (or preliminary injunction) issued

against it before it is required to take any contested

action.

Neither the Supreme Court nor any circuit has

ever expanded the collateral order doctrine to

categorically cover alleged denials of a church

autonomy defense. See O’Connell, 134 F.4th at 125758. This is hardly surprising. The limited scope of

the collateral order doctrine 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 interlocutory review.

59a

RAO, Circuit Judge, dissenting from the denial of

rehearing en banc: Obolo di San Pietro, or “Peter’s

Pence,” is a thousand-year-old collection by which

Catholic faithful annually give money to the Pope. In

2020, an individual congregant sued the United

States Conference of Catholic Bishops (the “Bishops”),

alleging fraud and other misconduct relating to the

promotion and management of Peter’s Pence. The

Bishops raised a church autonomy defense in their

motion to dismiss, which the district court rejected

because the case could be decided using “neutral

principles of law.” A panel of this court then dismissed

the Bishops’ interlocutory appeal for lack of

jurisdiction.

The First Amendment’s Religion Clauses protect a

“sphere” of autonomy for churches and other religious

institutions and organizations. Our Lady of

Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049,

2060–61 (2020). Within that sphere, the church

autonomy defense prohibits state interference “in

matters of faith and doctrine and in closely linked

matters of internal government.” Id. at 2061. Because

the donations at issue here implicate the faith,

practice, and governance of the Catholic Church, the

district court wrongly relied on “neutral principles of

law” to overcome the Bishops’ church autonomy

defense. See Hosanna-Tabor Evangelical Lutheran

Church & School v. EEOC, 565 U.S. 171, 189–90

(2012). Moreover, because state interference can

include the process of judicial inquiry, the church

autonomy defense is best understood as a

constitutional immunity from suit. The rejection of a

church autonomy defense therefore supports

interlocutory review under the collateral order

doctrine.

60a

Given the important constitutional rights at stake,

and the tension between the panel’s decision and

Supreme Court precedent, the full court should have

heard this case.

I.

A.

Peter’s Pence is a collection of monetary

contributions the Catholic Church annually solicits to

support the Pope’s “work of evangelization” and “aid

of the poor and needy.” Pope Benedict XVI, Address to

the Members of the “Circolo San Pietro” (Mar. 8, 2007),

https://perma.cc/EDM7-32MB; see Peter’s Pence, The

Vatican, https://perma.cc/G53Z-QP7G. Its roots lie in

a religious practice described in the New Testament,

whereby material aid was given to Jesus Christ and

his followers for their work spreading the gospel and

aiding the poor. See History of Peter’s Pence, The

Vatican, https://perma.cc/72GK-GXYJ. Later, the

apostle Paul instituted a collection of monetary

support from Christian communities for the “Mother

Church,” then in Jerusalem. Id.

From this religious backdrop, Peter’s Pence

originated more than a thousand years ago as an

annual gift of alms that Anglo-Saxon royalty pledged

to the Pope. See W.E. Lunt, The Financial System of

the Medieval Papacy in the Light of Recent Literature,

23 Q.J. of Econ. 251, 278 (1909). For centuries, the

collection was treated not only as a gift, but also as a

religious obligation that expressed devotion to the

Pope. See History of Peter’s Pence, The Vatican.

Peter’s Pence continues today as a worldwide

yearly collection of financial support from Catholics

for the Pope, both as a “tangible sign of communion

61a

with Him, as Peter’s Successor,” and as alms for the

“most disadvantaged.” What is Peter’s Pence, The

Vatican, https://perma.cc/AJ73-FNCN. Church law

requires local bishops to assist in procuring financial

means for the Pope, and the Church has accordingly

adopted legislation governing Peter’s Pence and

other fundraising appeals. See Code of Canon Law,

Book V, Title I, §§ 1262 & 1271 (1983).

B.

In 2018, David O’Connell, a congregant at Sacred

Heart Church in East Providence, Rhode Island, made

a donation to Peter’s Pence during Sunday Mass. Two

years later, he brought a class action suit against the

Bishops for fraud, unjust enrichment, and breach of

fiduciary duty related to the Bishops’ promotion and

management of Peter’s Pence. 1 Among other things,

O’Connell claimed the Bishops made affirmative

misrepresentations about how donations to Peter’s

Pence would be used, received money that they “ought

not to retain,” and breached their duty to ensure that

donations would be spent by the Pope in a particular

way. J.A. 30–33.

O’Connell sought to represent a class made up of

“[a]ll persons in the United States who donated money

to the Peter’s Pence collection,” which could include

The Bishops deny that they play any role in the

administration, collection, or distribution of funds

given to Peter’s Pence. But at the motion to dismiss

stage, this court accepts the plaintiff’s factual

allegations as true and draws all reasonable

inferences in his favor. Attorney General v. Wynn, 104

F.4th 348, 352 (D.C. Cir. 2024).

1

62a

“millions” of believers. J.A. 26–27. O’Connell also

requested substantial discovery from the Bishops,

including a list of donors to Peter’s Pence and records

of amounts received, the ways in which such

donations were ultimately used, and communications

the Bishops had with the Pope and the Vatican.

O’Connell v. U.S. Conf. of Cath. Bishops, 134 F.4th

1243, 1250 (D.C. Cir. 2025). As to remedies, O’Connell

asked for an injunction modifying how the Bishops

promote and manage Peter’s Pence. He also requested

damages,

attorney’s

fees

and

costs,

and

disgorgement of all contributions made by class

members to Peter’s Pence.

The Bishops moved to dismiss, arguing that,

because the lawsuit concerned the solicitation and

expenditure of religious donations, it was barred by

the First Amendment’s protection of church

autonomy. The district court denied the motion,

holding it could resolve the case using “neutral

principles of law” and without inquiring into “church

operations, religious doctrine, religious hierarchy, or

religious decisionmaking.” Id. (cleaned up). Since the

court could thereby avoid an “impermissible religious

entanglement,” the church autonomy doctrine did not

bar its consideration of the suit. Id. (cleaned up).

The Bishops sought interlocutory review, arguing

that O’Connell’s claims were constitutionally barred

because they interfered with matters of faith,

doctrine, and internal church governance, and that

immediate appeal was justified under the collateral

order doctrine.

The panel dismissed the appeal for lack of

jurisdiction, holding that “pleading-stage denials of a

church autonomy defense do not satisfy the

63a

requirements of the collateral order doctrine.” Id. at

1261. Following the district court’s substantive

approach, the panel concluded that an exclusive

reliance on “‘objective, well-established [legal]

concepts,’ or neutral principles of law” enables a court

to “steer[ ] clear of any violations of the church

autonomy doctrine.” Id. at 1254 (quoting Jones v.

Wolf, 443 U.S. 595, 603 (1979)). The panel also

rejected the categorization of the church autonomy

doctrine as an immunity from suit. Id. at 1257–58. The

Bishops seek rehearing en banc on these important

questions.

II.

I begin by explaining the district court’s

fundamental error in rejecting the Bishops’ church

autonomy defense on the ground that “neutral

principles of law” can decide the lawsuit. First, as the

Supreme Court has repeatedly indicated, the church

autonomy doctrine protects a sphere of vital First

Amendment interests and is an affirmative defense

that cannot be rejected simply because a lawsuit could

be resolved using neutral principles of law. Second,

this lawsuit implicates religious donations given to

the leader of the Catholic Church, a matter squarely

within the sphere of church autonomy protected by

the First Amendment. The lawsuit accordingly should

have been dismissed before intrusive discovery and

judicial probing into matters of faith, doctrine, and

internal church governance occurred. By allowing

neutral principles of law to trump church autonomy,

the district court failed to protect the First

Amendment rights of the Catholic Church and its

followers.

64a

A.

The First Amendment provides that “Congress

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.” U.S.

Const. amend. I. Together, the two Religion Clauses

undergird the church autonomy doctrine, 2 which

recognizes that the Constitution “protect[s] the right

of churches and other religious institutions to decide

matters of faith and doctrine without government

intrusion.” Our Lady of Guadalupe, 140 S. Ct. at 2060

(cleaned up). The church autonomy doctrine secures

the free exercise and associational rights of individual

believers. For many individuals, religion includes

“important communal elements”—“[t]hey exercise

their religion through religious organizations.”

Douglas Laycock, Towards a General Theory of the

Religion Clauses: The Case of Church Labor Relations

and the Right to Church Autonomy, 81 Colum. L. Rev.

1373, 1389 (1981). Indeed, it is “through religious

communities that individuals jointly develop religious

ideas and beliefs.” Kathleen A. Brady, Religious

Organizations and Free Exercise: The Surprising

Lessons of Smith, 2004 B.Y.U. L. Rev. 1633, 1676; see

While the doctrine of course covers more than

churches, I adopt the prevailing terminology. See, e.g.,

Our Lady of Guadalupe, 140 S. Ct. at 2061; cf.

Hosanna-Tabor, 565 U.S. at 198 (Alito, J., concurring)

(observing the need to look past labels in the

ministerial exception context, given that “[t]he term

‘minister’ is commonly used by many Protestant

denominations to refer to members of their clergy, but

the term is rarely if ever used in this way by Catholics,

Jews, Muslims, Hindus, or Buddhists”).

2

65a

Hosanna-Tabor, 565 U.S. at 188 (“The members of a

religious group put their faith in the hands of their

ministers.”). Because individual believers often

practice their faith through and within religious

institutions and communities, protecting the

autonomy of such groups “furthers individual religious

freedom as well.” Corp. of the Presiding Bishop of the

Church of Jesus Christ of Latter-day Saints v. Amos,

483 U.S. 327, 342 (1987) (Brennan, J., concurring in

the judgment).

These important religious liberty interests ground

the blackletter law that religious institutions and

organizations have a constitutionally protected

“sphere” of “independent authority” over certain

activities. Our Lady of Guadalupe, 140 S. Ct. at 2060–

61. When evaluating the ministerial exception—one

part of the “general principle of church autonomy”—

the Supreme Court has explained that the First

Amendment prevents judicial intrusion into areas

essential to the independence of religious institutions,

including matters of “faith,” “doctrine,” and “internal

government.” Id. at 2061; see also Hosanna-Tabor, 565

U.S. at 188; Cath. Charities Bureau, Inc. v. Wisc. Lab.

& Indus. Rev. Comm’n, 145 S. Ct. 1583, 1595 (2025)

(Thomas, J., concurring) (“The First Amendment

guarantees to religious institutions broad autonomy to

conduct their internal affairs and govern

themselves.”). These recent decisions built on older

church autonomy cases that likewise recognized the

power of religious organizations “to decide for

themselves, free from state interference, matters of

church government as well as those of faith and

doctrine.” Kedroff v. St. Nicholas Cathedral of the

Russian Orthodox Church in North America, 344 U.S.

94, 116 (1952); see Serbian E. Orthodox Diocese for the

66a

United States of America & Canada v. Milivojevich,

426 U.S. 696, 720 (1976) (holding that the First

Amendment

commits

the

resolution

of

“quintessentially religious controversies” to church

authorities).

In Hosanna-Tabor, the Supreme Court clarified

that church autonomy operates as an affirmative

defense. 565 U.S. at 195 n.4. Importantly, in the

context of the ministerial exception, the Court also

held that a church autonomy defense trumps neutral

principles of law. In reaching this conclusion, the

Court first distinguished Employment Division,

Department of Human Resources of Oregon v. Smith,

494 U.S. 872 (1990), as inapposite. See HosannaTabor, 565 U.S. at 189–90. Furthermore, it did not

matter whether a minister was fired for a nonreligious reason. The ministerial exception enables a

religious organization to wield “control over the

selection of those who will personify its beliefs.” Id. at

188. Such control would be greatly reduced if the

organization could fire its ministers only for religious

reasons. Thus, the authority to “select and control who

will minister to the faithful”—for whatever reason—

was reserved to the “church[ ] alone.” Id. at 195.

Regardless of whether a suit presents neutral

principles, the Court maintained that the First

Amendment prohibits judicial interference with the

decisions of religious organizations implicating

matters of faith, doctrine, and internal governance.

See id. at 188–90.

In Our Lady of Guadalupe, the Supreme Court

again upheld the priority of substantive church

autonomy over neutral principles of law. The

plaintiffs in that case taught at religious schools. Both

67a

were fired, not for religious reasons, but for poor

classroom performance. See Our Lady of Guadalupe,

140 S. Ct. at 2056–59. The Court explained that the

“quintessential” ministerial exception case was one in

which “poor performance” was at issue, rather than a

spiritual dispute. Id. at 2068. The Court had no

trouble concluding that the ministerial exception

barred the underlying employment lawsuits.

Hosanna-Tabor and Our Lady of Guadalupe

express a self-evident principle: if the mere invocation

of neutral principles permits a court to interfere with

church autonomy, then the constitutional protection

is a dead letter. See Lael Weinberger, The Limits of

Church Autonomy, 98 Notre Dame L. Rev. 1253, 1277

(2023) (“If the court simply asks whether ‘neutral

principles’ can resolve the case, the answer will

(almost) always be yes.”) (cleaned up). Thus, when

judicial intervention would intrude on church

autonomy, the First Amendment bars suit even if the

challenged conduct can be evaluated on purely neutral

or secular terms.

In concluding that the presence of “neutral

principles of law” defeated the Bishops’ church

autonomy defense, the district court relied on Jones v.

Wolf, which involved an intra-church dispute over

ownership of church property. 443 U.S. at 597–99. In

Jones, the Supreme Court embraced a “neutral

principles of law” approach, by which it could decide

the case using “objective, well-established concepts of

trust and property law familiar to lawyers and

judges.” Id. at 602–03. Even when examining “certain

religious documents, such as a church constitution,”

the Court maintained it could stay within its

constitutional lane by “scrutiniz[ing] the document[s]

68a

in purely secular terms.” Id. at 604 (emphasis added).

In dissent, Justice Powell argued that Jones broke

with earlier precedents that prohibited judicial

interference with the internal decisions of church

authorities. See id. at 611–19 (Powell, J., dissenting).

While the Supreme Court’s 5-4 decision in Jones

remains on the books, its reasoning is at odds with the

Court’s recent decisions. In Hosanna-Tabor and Our

Lady of Guadalupe, the Supreme Court made no

mention of Jones or its neutral principles of law

approach, which conflicts with the church autonomy

doctrine’s substantive protections for faith, doctrine,

and internal governance. 3 See Hosanna-Tabor, 565

U.S. at 190; Our Lady of Guadalupe, 140 S. Ct. at

2061. Nor has the Court extended Jones’s neutral

principles framework beyond church property to other

areas of law.

Outside of the property context, the Supreme

Court has safeguarded the sphere of church autonomy

even when a lawsuit was framed under general legal

principles. The district court therefore erred in

concluding that the mere presence of “neutral

Notably, in opposing the ministerial exception, the

plaintiffs in Hosanna-Tabor repeatedly cited Jones.

See, e.g., Brief for Respondent Cheryl Perich at 42–44,

56, Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC, 565 U.S. 171 (2012) (No. 10-553). The

Court’s implicit rejection of this approach confines

Jones to its specific context and indicates that the

availability of neutral principles does not normally

overcome a church autonomy defense.

3

69a

principles of law” overrode the Bishops’ church

autonomy defense.

B.

Following the Supreme Court’s lead, the district

court should have assessed the merits of the Bishops’

church autonomy defense to O’Connell’s lawsuit.

Because religious donations and decisions about how

to use such funds are connected to the faith, doctrine,

and internal governance of the Catholic Church, they

are protected by the First Amendment, and

O’Connell’s suit should have been dismissed.

Donations are of great importance to religious

organizations, which cannot pursue their “central

mission” without sufficient resources. Our Lady of

Guadalupe, 140 S. Ct. at 2060. For example, a church

may use donations to employ ministers to teach and

spread its message; provide space for its members to

gather in worship; and perform charitable works.

Decisions about how to raise and spend religious

donations are inextricably tied up with a church’s

“right to shape its own faith and mission” and

“internal governance,” so the church autonomy

defense must protect these activities. Hosanna-Tabor,

565 U.S. at 188; see also Stephanie H. Barclay et al.,

Original Meaning and The Establishment Clause: A

Corpus Linguistics Analysis, 61 Ariz. L. Rev. 505,

548–49 (2019) (discussing how government regulation

of “church tithes … involve[s] government interference

in church affairs”). Other courts have already

recognized that religious offerings and church

spending are constitutionally protected from

government interference. See, e.g., Bell v.

Presbyterian Church (U.S.A.), 126 F.3d 328, 332–

70a

33 (4th Cir. 1997) (holding that decisions about how

to spend “religious outreach funds” fall within “the

ecclesiastical sphere that the First Amendment

protects from civil court intervention”); Ambellu v.

Re’ese Adbarat Debre Selam Kidist Mariam, 387 F.

Supp. 3d 71, 80 (D.D.C. 2019) (“How a church spends

worshippers’ contributions is, like the question of who

may worship there, central to the exercise of

religion.”).

In this lawsuit, the relevant donation was made as

part of a thousand-year-old church collection given

directly to the head of the Catholic Church.

O’Connell’s challenge goes straight to the heart of how

the Church raises and spends contributions made by

its congregants—“internal church decision[s] that

affect[ ] the faith and mission of the church.” HosannaTabor, 565 U.S. at 190. That subject is properly

shielded from government interference by the Bishops’

church autonomy defense. 4 Because a church’s

solicitation and use of religious donations are

Recognizing that the giving and spending of

religious contributions falls within the church

autonomy doctrine in no way suggests that religious

institutions enjoy “a general immunity from secular

laws.” Contra O’Connell, 134 F.4th at 1254. The church

autonomy doctrine does not apply to everything that a

religious institution does. Rather, it is cabined to those

substantive areas that implicate faith, doctrine, or

internal governance. Our Lady of Guadalupe, 140 S.

Ct. at 2061; see Hosanna-Tabor, 565 U.S. at 188; cf.

Watson v. Jones, 80 U.S. (13 Wall.) 679, 732–33 (1872)

(indicating the doctrine does not extend to matters of

criminal law).

4

71a

protected from government interference by the First

Amendment, O’Connell’s lawsuit should have been

dismissed.

As a practical matter, it is worth highlighting how

O’Connell’s suit intrudes into the protected autonomy

of the Catholic Church. O’Connell alleges fraudulent

misrepresentation connected to his participation in

Peter’s Pence. District of Columbia law on fraudulent

misrepresentation requires a defendant to have both

“knowledge of [a representation’s] falsity” and “intent

to deceive.” Falconi-Sachs v. LPF Senate Square, LLC,

142 A.3d 550, 555 (D.C. 2016) (cleaned up). In an effort

to plausibly plead these elements, O’Connell’s

complaint details various sources of the Bishops’

guidance related to Peter’s Pence, including a church

bulletin insert for use at Mass, a similar bulletin

announcement, a script for announcements about

Peter’s Pence from the pulpit, and the Bishops’

implementation of canon law to regulate their

fundraising operations.

An examination of the knowledge and intent of the

Catholic Church in raising money—including what it

means when priests speak about religious giving from

the pulpit and the Bishops implement canon law—

risks the “entangle[ment]” of federal courts with

“essentially religious controversies.” Milivojevich, 426

U.S. at 709; see Huntsman v. Corp. of the President of

the Church of Jesus Christ of Latter-day Saints, 127

F.4th 784, 798 (9th Cir. 2025) (en banc) (Bress, J.,

concurring in the judgment) (“Nothing says

‘entanglement with religion’ more than [plaintiff’s]

apparent position that the head of a religious faith

should have spoken with greater precision about

inherently religious topics, lest the Church be found

72a

liable for fraud.”). Moreover, allowing such lawsuits to

proceed might create a chilling effect on how religious

donations are raised and spent, impeding the free

exercise of religion. See Amos, 483 U.S. at 336.

The

remedies

O’Connell

seeks

further

demonstrate how this lawsuit intrudes on the

Bishops’ religious autonomy. In Hosanna-Tabor, the

Supreme Court found that reinstatement or a

combination of frontpay and backpay “would operate

as a penalty on the Church for terminating an

unwanted minister.” 565 U.S. at 194. Even that

relatively tailored and modest remedy was found

unconstitutional. By contrast, O’Connell seeks

sweeping injunctive relief and millions in

disgorgement and damages. O’Connell first demands

class-wide injunctive relief requiring the Bishops to

administer Peter’s Pence in a judicially prescribed

manner. In attempting to change the way the Catholic

Church speaks about, solicits, and deploys religious

donations, O’Connell essentially seeks the structural

reform of a religious institution. For a secular court to

countenance such a request would plainly result in

impermissible religious “entanglement.” See Our

Lady of Guadalupe, 140 S. Ct. at 2069.

O’Connell also asks for the disgorgement of “all

monies contributed” to Peter’s Pence. J.A. 32. Given

that he hopes to represent a putative class of all

American donors to Peter’s Pence and requests the

tolling of applicable limitations periods, O’Connell

effectively asks for the return of all money ever

donated by living American Catholics to Peter’s

Pence. Such sweeping injunctive relief and

disgorgement of likely millions of dollars would result

73a

in a massive incursion into the constitutionally

protected sphere of church autonomy.

Finally, O’Connell’s lawsuit, touching as it does on

matters of faith, doctrine, and internal governance,

undermines the associational rights of individual

Catholic believers. The Supreme Court has long

recognized a link between the church autonomy

doctrine and expressive association. See Watson v.

Jones, 80 U.S. (13 Wall.) 679, 728–29 (1872) (“The

right to organize voluntary religious associations to

assist in the expression and dissemination of any

religious doctrine … is unquestioned.”); see also

Hosanna-Tabor, 565 U.S. at 200 (Alito, J., concurring)

(“Religious groups are the archetype of associations

formed for expressive purposes.”). As Justice Brennan

explained, a religious community “represents an

ongoing tradition of shared beliefs, an organic entity

not reducible to a mere aggregation of individuals.”

Amos, 483 U.S. at 342 (Brennan, J., concurring in the

judgment). Yet here, one individual seeks to interpose

the coercive power of the courts between a religious

institution and its members. As such, O’Connell’s

lawsuit constitutes an impermissible interference

with the associational rights of the Catholic Church

and individual believers.

***

The district court erred by invoking neutral

principles of law to reject a church autonomy defense.

Instead, the district court was required to assess

whether the Catholic Church’s administration of

Peter’s Pence, a major giving initiative, was within

the constitutionally protected sphere of church

autonomy. Because the solicitation and expenditure of

religious donations clearly implicate matters of faith,

74a

doctrine, and internal governance, O’Connell’s lawsuit

should have been dismissed.

III.

The panel did not resolve the Bishops’ church

autonomy defense, but instead concluded that we lack

jurisdiction to review the district court’s decision. On

the panel’s view, the rejection of a church autonomy

defense is not a collateral order subject to interlocutory

appeal, in part because the defense does not provide an

immunity from suit. O’Connell, 134 F.4th at 1255–61.

I respectfully disagree. Judges in other circuits have

divided over the question of whether church autonomy

provides an immunity from suit that fits within the

collateral order doctrine, but no court has subjected

the issue to en banc review. 5 Given the stakes of

this case, which involves a challenge to the use of

religious donations by the leader of the Catholic

Church, we should have been the first.

This Part sets forth the argument for why church

autonomy provides a constitutional immunity from

suit that should be subject to interlocutory review.

First, the historical backdrop at the time of ratification

demonstrates that the First Amendment protects a

sphere of religious autonomy from government

intrusion. This history and original meaning have

been repeatedly reaffirmed by the Supreme Court.

Second, the First Amendment’s protection for church

autonomy is similar to other affirmative defenses that

provide immunity from suit. While the Supreme Court

See, e.g., Belya v. Kapral, 59 F.4th 570 (2d Cir.

2023) (mem.); Tucker v. Faith Bible Chapel Int’l, 53

F.4th 620 (10th Cir. 2022) (mem.).

5

75a

has not specifically addressed the question, the

reasoning of its decisions strongly supports an

immunity characterization. Finally, because the

church autonomy defense is an immunity from suit,

decisions rejecting a church autonomy defense

warrant interlocutory appeal.

A.

Historical materials from before and after

ratification of the Bill of Rights demonstrate that the

First Amendment safeguards a sphere of church

autonomy and prohibits state interference with

matters of faith, doctrine, and internal governance.

1.

To understand the nature and scope of the

Constitution’s protection for church autonomy, I begin

by considering the “background against which the

First Amendment was adopted.” Our Lady of

Guadalupe, 140 S. Ct. at 2061 (cleaned up); see also

Hosanna-Tabor, 565 U.S. at 182–85 (grounding the

ministerial exception in historical materials from

1215 to 1811); Am. Legion v. Am. Humanist Ass’n, 139

S. Ct. 2067, 2087–89 (2019) (plurality op.)

(“look[ing] to history for guidance” in interpreting

the Establishment Clause). This history demonstrates

that the First Amendment “was adopted against [the]

background of distinct spheres for secular and

religious authorities.” Cath. Charities Bureau, 145 S.

Ct. at 1597 (Thomas, J., concurring) (cleaned up).

Scholars and judges have extensively mapped the

pre-Founding view that “church and state are ‘two

rightful authorities,’ each supreme in its own sphere.”

Id. at 1596 (quoting Michael W. McConnell, The

Origins and Historical Understanding of Free Exercise

76a

of Religion, 103 Harv. L. Rev. 1409, 1496–97 (1990)).

Many of these authorities trace the separation to the

early Christian church. In the Gospel of Matthew,

Jesus Christ told the teachers of the law to “render to

Caesar the things that are Caesar’s, and to God the

things that are God’s.” Matthew 22:21 (English

Standard Version). “From antiquity onward,” some

Christians interpreted Jesus’s statement to mean

“that church and state are distinct, and that each has

a legitimate claim to authority within its sphere.”

Cath. Charities Bureau, 145 S. Ct. at 1596 (Thomas,

J., concurring). In the City of God, Augustine

famously distinguished between the City of Man (the

“earthly city”) and the City of God (the “heavenly

city”). See John D. Inazu, The Freedom of the Church

(New Revised Standard Version), 21 J. Contemp.

Legal Issues 335, 348 (2013). Early popes similarly

differentiated between “spiritual and temporal

authority.” Michael W. McConnell, Why Is Religious

Liberty the “First Freedom”?, 21 Cardozo L. Rev. 1243,

1245 (2000).

This separation between religious and political

spheres was recognized during the Middle Ages and

up through the Reformation. Magna Carta proclaimed

in 1215 that “the English church shall be free, and

shall have its rights undiminished and its liberties

unimpaired.” James C. Holt, Magna Carta 317

(1965). The document codified the “Norman-AngloSaxon mind that … differentiated the two spheres of

church and of state.” Carl H. Esbeck, Dissent and

Disestablishment: The Church-State Settlement in the

Early American Republic, 2004 B.Y.U. L. Rev. 1385,

1408; see also Roscoe Pound, A Comparison of Ideals

of Law, 47 Harv. L. Rev. 1, 6 (1933) (“In the politics

and law of the Middle Ages the distinction between

77a

the spiritual and the temporal, between the

jurisdiction of religiously organized Christendom and

the jurisdiction of the temporal sovereign … was

fundamental.”). Centuries later, Protestant reformers

like John Calvin and Martin Luther would delineate

the “two kingdoms” of “church and state.” Robert J.

Renaud & Lael D. Weinberger, Spheres of Sovereignty:

Church Autonomy Doctrine and the Theological

Heritage of the Separation of Church and State, 35 N.

Ky. L. Rev. 67, 73–76 (2008). For instance, Calvin

argued that the “spiritual kingdom … and civil

government are things very different and remote from

each other.” 2 John Calvin, Institutes of the Christian

Religion 633 (John Allen trans., 6th American rev. ed.,

1928).

This very brief survey evidences a longstanding

distinction between religious and governmental

spheres. Yet at the same time, adherence to this

separation was far from perfect. Beginning with the

English Reformation, the English monarchy gained

“control over the national religion” and proceeded to

legislate “religious uniformity,” collapsing the

distinction between church and state. Michael W.

McConnell, Establishment and Disestablishment at

the Founding, Part I: Establishment of Religion, 44

Wm. & Mary L. Rev. 2105, 2112–14 (2003); see

Hosanna-Tabor, 565 U.S. at 182 (discussing the

English government’s “grip on the exercise of religion”

in the sixteenth and seventeenth centuries). As a

result, many dissenters fled to America, where

colonists implemented a variety of church and state

arrangements. See Hosanna-Tabor, 565 U.S. at 182–

83.

78a

For example, some New England colonists

endorsed the two kingdoms conception, in which

church and state “were understood as two coordinate

but separate covenantal associations for the discharge

of godly authority.” McConnell, Establishment and

Disestablishment, 44 Wm. & Mary L. Rev. at 2123. In

one writing, Rhode Island minister Roger Williams

discussed the “hedge or wall of Separation between the

Garden of the Church and the Wildernes of the world.”

Roger Williams, Mr. Cotton’s Letter, Examined and

Answered (1644), reprinted in 1 The Complete

Writings of Roger Williams 392 (Russell & Russell

1963). Thomas Jefferson would later make similar

reference to a “wall of separation between Church and

State.” Letter from Thomas Jefferson to the Danbury

Baptist Association (Jan. 1, 1802), in 5 The Founders’

Constitution 96 (Philip B. Kurland & Ralph Lerner

eds., 1987). By contrast, the Virginia colony tended

more toward the English tradition of significant state

involvement with religious practice, although these

efforts were sometimes resisted. See McConnell,

Establishment and Disestablishment, 44 Wm. & Mary

L. Rev. at 2116–17; Hosanna-Tabor, 565 U.S. at 183.

By the ratification of the Constitution and Bill of

Rights, American thought had shifted toward the New

England distinction between spheres. The late 1770s

saw the beginning of a trend toward disestablishment

at the state level, perhaps furthered by the increasing

numbers of non-Anglican Protestant Americans who

supported greater separation between church and

state. See Esbeck, 2004 B.Y.U. L. Rev. at 1457–58

(marking pre-1791 disestablishments in North

Carolina, New York, Virginia, Maryland, and South

Carolina); Renaud & Weinberger, 35 N. Ky. L. Rev. at

81–82 (discussing the increasing prevalence of the two

79a

kingdoms position). The same advocates of religious

liberty “also supported adoption of constitutional

protections at the federal level.” McConnell, Origins

and Historical Understanding, 103 Harv. L. Rev. at

1440. Among these was James Madison, who

pronounced “that in matters of Religion, no mans

right is abridged by the institution of Civil Society and

that Religion is wholly exempt from its cognizance.”

James Madison, Memorial and Remonstrance Against

Religious Assessments (June 20, 1785), in 5 The

Founders’ Constitution 82. A year before Madison’s

declaration, the Confederation Congress rejected an

entreaty from the Vatican that it choose a new bishop

for American Catholics because it was without

“jurisdiction” over this “purely spiritual” matter. 3

Secret Journals of the Acts and Proceedings of

Congress 493 (Thomas B. Wait. ed., 1821); see Thomas

C. Berg et al., Religious Freedom, Church-State

Separation, and the Ministerial Exception, 106 Nw. U.

L. Rev. Colloquy 175, 181 (2011).

This historical backdrop strongly supports the

conclusion that the “two-kingdoms view of competing

authorities is at the heart of our First Amendment.”

McConnell, First Freedom, 21 Cardozo L. Rev. at 1246;

see Esbeck, 2004 B.Y.U. L. Rev. at 1579–81, 1589.

2.

Post-ratification decisions have relied on this

constitutional backdrop when recognizing a sphere of

church autonomy for religious institutions.

Many early state courts framed the issue in terms

that tracked the pre-ratification conception and

recognized “a sphere of ecclesiastical authority with

which the civil courts ought not to interfere.” Lael

80a

Weinberger, The Origins of Church Autonomy:

Religious

Liberty

After

Disestablishment

(Feb. 4, 2025), https://ssrn.com/abstract=4933864

(unpublished manuscript at 14). For instance, a South

Carolina judge remarked that “[i]t belongs not to the

civil power to enter into or review the proceedings of a

Spiritual Court.” Harmon v Dreher, 17 S.C. Eq.

(Speers Eq.) 87, 120 (S.C. App. Eq. 1843). The Missouri

Supreme Court “[h]appily” recognized a “total

disconnection between the church and state,” by which

“neither will interfere with the other when acting

within their appropriate spheres.” State ex rel. Watson

v. Farris, 45 Mo. 183, 198 (Mo. 1869). The Kentucky

Court of Appeals held that the “judicial eye of the civil

authority … cannot penetrate the veil of the Church,

nor can the arm of this Court either rend or touch that

veil.” Shannon v. Frost, 42 Ky. (3 B. Mon.) 253, 259 (Ky.

1842). And in 1846, the Pennsylvania Supreme Court

expressed its view that the “civil courts, if they should

be so unwise as to attempt to supervise [the decisions

of ecclesiastical courts] on matters which come within

their jurisdiction, would only involve themselves in a

sea of uncertainty and doubt.” German Reformed

Church v. Com. ex rel. Seibert, 3 Pa. (3 Barr.) 282, 291

(Pa. 1846). Because the First Amendment did not yet

apply to the states, these decisions were not formally

grounded in the Constitution. Nevertheless, state

courts recognized that “according to the Constitution

of the United States, politics and religion move in

separate spheres, clearly defined.” Gartin v. Penick,

68 Ky. (5 Bush) 110, 116 (Ky. 1869).

Citing this state law background, the Supreme

Court affirmed in Watson v. Jones that “a subjectmatter … strictly and purely ecclesiastical in its

character”—such as which slate of elders and trustees

81a

was rightfully in charge of a church—was “a matter

over which the civil courts exercise no jurisdiction.” 80

U.S. (13 Wall.) at 730–33. Where such a matter had

already been resolved by church authorities, judicial

inquiry “would lead to the total subversion of …

religious bodies” by secular courts. Id. at 729.

Moreover, such interference by the civil courts would

be inconsistent with the “unquestioned” right of

individuals

“to

organize

voluntary religious

associations.” Id. at 728–29.

Arising out of a suit in diversity in 1872, Watson was

based in general law—a “broad and sound view of the

relations of church and state under our system of

laws.” Id. at 727; see Hosanna-Tabor, 565 U.S. at 185.

But the decision was later pronounced to have a “clear

constitutional ring.” Milivojevich, 426 U.S. at 710

(cleaned up). Early state court decisions and Watson

thus embraced a conception of church autonomy that

protected certain religious matters from judicial

interference. 6

A few scholars have pointed to nineteenth-century

state regulations on church property and governance

as evidence that might defeat the narrative of a

longstanding church autonomy doctrine. See Sarah

Barringer Gordon, The First Disestablishment: Limits

on Church Power and Property Before the Civil War,

162 U. Pa. L. Rev. 307, 321–24 (2014); cf. Kellen Funk,

Church Corporations and the Conflict of Laws in

Antebellum America, 32 J.L. & Relig. 263, 269–70

(2017). But there are reasons to question the

significance of those restrictions. Prior to 1868, states

were not bound by the First Amendment, so to the

extent church autonomy was only a common or general

6

82a

Since Watson, the Supreme Court has repeatedly

recognized the importance of a sphere of church

autonomy protected by the First Amendment and

beyond the control of the state. For instance, in

Kedroff, the Supreme Court invalidated a state law

that specified which church authority—Russian or

American—controlled certain Orthodox churches in

New York. 344 U.S. at 95–99, 106–07. Emphasizing

that “the power … to appoint the ruling hierarch of”

these churches had historically vested in “the

Supreme Church Authority of the Russian Orthodox

Church,” the Court concluded that the “Church’s

choice of its hierarchy” was “an ecclesiastical right.”

Id. at 115, 119. The Court largely adopted Watson’s

emphasis on church authority to hold that

ecclesiastical rights were protected by the

Constitution against state interference. Id. at 119.

Two decades later in Milivojevich, the Court

rejected a lawsuit brought by a former Orthodox

bishop challenging his removal. 426 U.S. at 702–08,

724–25. The bishop had been removed by church

officials for religious reasons, and the Court dismissed

his attempt to relitigate a “quintessentially religious”

controversy in civil court. Id. at 720. As it was “the

essence of religious faith that ecclesiastical decisions

are reached and are to be accepted as matters of

faith,” “secular notions” of civil law like “due process”

could not resolve the case. Id. at 714–15.

law doctrine in state courts, it could be validly

overridden by state legislation. See Weinberger, The

Origins of Church Autonomy, unpublished manuscript

at 38–39.

83a

As already discussed, the Supreme Court’s recent

decisions in Hosanna-Tabor and Our Lady of

Guadalupe more explicitly recognize that the First

Amendment protects a sphere of church autonomy

into which secular courts cannot intrude. In HosannaTabor, the Court unanimously held there was a

ministerial exception to generally applicable

employment discrimination laws. 565 U.S. at 188.

That proposition followed from both the Free Exercise

Clause, “which protects a religious group’s right to

shape its own faith and mission through its

appointments,” and the Establishment Clause, which

“prohibits government involvement” in decisions

about “which individuals will minister to the faithful.”

Id. at 188–89. In a concurrence joined by Justice

Kagan, Justice Alito likewise connected the “private

sphere” of church autonomy to the “free dissemination

of religious doctrine,” explaining that a “religious

body’s control over [its ministers] is an essential

component of its freedom to speak in its own voice,

both to its own members and to the outside world.” Id.

at 199, 201 (Alito, J., concurring). Justice Alito also

justified the church autonomy doctrine on freedom of

association grounds, characterizing religious groups

as “the archetype of associations formed for expressive

purposes.” Id. at 200.

In Our Lady of Guadalupe, the Supreme Court

reinforced the church autonomy doctrine and the

Constitution’s protection for the “independence of

religious institutions in matters of faith and doctrine,”

which is “closely linked to independence in what we

have termed matters of church government.” 140 S.

Ct. at 2060 (cleaned up). The Court again grounded

the church autonomy doctrine in both of the Religion

Clauses. Id. While religious institutions are not

84a

generally immune from secular laws, the Constitution

“protect[s] their autonomy with respect to internal

management decisions that are essential to the

institution’s central mission.” Id. The Court concluded

that “judicial intervention into disputes between the

[religious] school and the teacher threatens the

school’s independence in a way that the First

Amendment does not allow.” Id. at 2069.

In sum, American courts recognize that the First

Amendment protects a sphere of church autonomy

free from government regulation and judicial

interference. Safeguarding this autonomy with

respect to matters of faith, doctrine, and internal

governance ensures “a spirit of freedom for religious

organizations, an independence from secular control

or manipulation.” Kedroff, 344 U.S. at 116.

B.

The foregoing history and precedent demonstrate

that the Religion Clauses protect a sphere of church

autonomy from state interference. Because such

interference can include the very process of judicial

inquiry, the church autonomy defense is best

understood as a constitutional immunity from suit.

Although the Supreme Court has not addressed

this precise question, its precedents strongly support

treating the church autonomy defense as a

constitutional immunity from suit. As discussed, a

chorus of decisions stretching back to Watson

emphasizes how churches and other religious

organizations occupy a separate sphere into which the

state may not intrude. In addition, the Court has

recognized that the rights protected by the Religion

Clauses are burdened not merely by final decisions,

85a

but also by the “very process of inquiry leading to

findings and conclusions.” 7 NLRB v. Cath. Bishop of

Chicago, 440 U.S. 490, 502 (1979). For instance, the

Court in Catholic Bishop rejected the National Labor

Relations Board’s efforts to assert jurisdiction over

Catholic school teachers, explaining that the

resolution of labor charges would impermissibly and

“necessarily involve inquiry into the good faith of the

position asserted by the clergy-administrators and its

relationship to the school’s religious mission.” Id. at

502. Although decided on constitutional avoidance

grounds, the Court reasoned that allowing the Board

to resolve labor disputes within religious schools

“would implicate the guarantees of the Religion

Clauses.” Id. at 507.

Similarly, the Court has stressed the “well

established” rule that “courts should refrain from

trolling through a person’s or institution’s religious

beliefs.” Mitchell v. Helms, 530 U.S. 793, 828 (2000)

(plurality op.). It is categorically “not within the

judicial ken” to assess religious questions like “the

centrality of particular beliefs or practices to a faith,

or the validity of particular litigants’ interpretations

of those creeds.” Hernandez v. Comm’r of Internal

Revenue, 490 U.S. 680, 699 (1989); see also Thomas v.

Rev. Bd. of the Ind. Emp. Sec. Div., 450 U.S. 707, 715

(1981) (concluding “the judicial process is singularly

Our court has long reaffirmed these principles. See,

e.g., EEOC v. Cath. Univ. of Am., 83 F.3d 455, 466–67

(D.C. Cir. 1996); Univ. of Great Falls v. NLRB, 278

F.3d 1335, 1341–42 (D.C. Cir. 2002); Carroll Coll.,

Inc. v. NLRB, 558 F.3d 568, 571–72 (D.C. Cir. 2009).

7

86a

ill equipped to resolve [intrafaith] differences in

relation to the Religion Clauses”). Judicial inquiry

into such matters may lead courts into a “religious

thicket,” where they could become embroiled in

“essentially religious controversies.” Milivojevich, 426

U.S. at 709, 719.

Practically speaking, without an immunity from

suit, religious institutions would face substantial

transgressions into their constitutionally protected

sphere of independence. Litigation may involve

depositions of church leaders, probing inquiries into

ecclesiastical doctrine and church structure, and

discovery of sensitive church communications. As

Justice Alito explained, civil courts cannot engage in

a “pretext inquiry” as to the motivations of religious

employers because such inquiry would “dangerously

undermine … religious autonomy.” Hosanna-Tabor,

565 U.S. at 205 (Alito, J., concurring). The “mere

adjudication of such questions would pose grave

[constitutional] problems for religious autonomy,”

because it would place a civil factfinder in “ultimate

judgment” over the “importance and priority of the

religious doctrine in question.” Id. at 205–06

(emphasis added). Similarly, in Our Lady of

Guadalupe, the Court declined to second guess how

church schools characterized the essentially religious

mission of their teachers, in part because courts lack

“a complete understanding and appreciation of the

role played by every person who performs a particular

role in every religious tradition.” 140 S. Ct. at 2066;

cf. id. at 2070 (Thomas, J., concurring) (“What

qualifies as ‘ministerial’ is an inherently theological

question, and thus one that cannot be resolved by civil

courts through legal analysis.”).

87a

These cases recognize that the First Amendment

protects from judicial inquiry matters that implicate

faith, doctrine, and internal governance. When a

lawsuit impinges on this autonomous sphere and

requires a court to question and probe doctrine or

governance, the Religion Clauses provide religious

organizations with an immunity from suit.

While not explicitly addressing the immunity

question, the Supreme Court has characterized the

First Amendment’s protection for church autonomy as

a non-jurisdictional affirmative defense. HosannaTabor, 565 U.S. at 195 n.4. We know from other

contexts that some immunities, like absolute and

qualified immunity for public officials, are nonjurisdictional affirmative defenses. 8 See Nevada v.

Hicks, 533 U.S. 353, 373 (2001).

Absolute and qualified immunity protect interests

similar to those safeguarded by the church autonomy

doctrine. Absolute immunity enables officials to carry

out the “proper and effective administration of public

affairs” without the “apprehension” and “fear of

Longstanding Supreme Court and circuit

precedent is therefore at odds with the panel’s

suggestion that a non-jurisdictional affirmative

defense cannot provide an immunity from suit. Cf.

O’Connell, 134 F.4th at 1258. Of course, some

immunities from suit, like legislative immunity under

the Speech and Debate Clause, are jurisdictional bars.

See Fields v. Off. of Eddie Bernice Johnson, 459 F.3d

1, 13 (D.C. Cir. 2006) (en banc). But as explained above,

other immunities are not.

8

88a

consequences” that emanate from the possibility of

subsequent litigation. Nixon v. Fitzgerald, 457 U.S.

731, 745–46 (1982) (cleaned up). For instance, the

President enjoys absolute immunity from both civil

and criminal prosecution, because “once it is

determined that the President acted within the scope

of his exclusive authority, his discretion in exercising

such authority cannot be subject to further judicial

examination.” Trump v. United States, 144 S. Ct.

2312, 2327 (2024). Even the threat of prosecution

could render him “unduly cautious in the discharge of

his official duties” and thus pose “unique risks to the

effective functioning of government.” See Fitzgerald,

457 U.S. at 751–52 & n.32. For many other officials,

qualified immunity shields the performance of official

duties from liability. Harlow v. Fitzgerald, 457 U.S.

800, 816 (1982). Because these immunities encompass

“an entitlement not to stand trial or face the other

burdens of litigation,” they are effectively lost if a case

wrongly goes to trial. Mitchell v. Forsyth, 472 U.S.

511, 526–27 (1985). Absolute and qualified immunity

recognize a sphere of independence free from

intrusions by the judicial process.

Similarly, the Religion Clauses protect a sphere of

“independence” in which religious organizations may

structure their faith and practice without “[s]tate

interference.” Our Lady of Guadalupe, 140 S. Ct. at

2060. Within this sphere of autonomy, religious

organizations must have freedom from judicial

intrusion. The vitality of this constitutional freedom

requires that, in matters implicating church

autonomy,

religious

organizations

enjoy

a

constitutional immunity from suit.

89a

The en banc court should recognize that the church

autonomy defense is an immunity from suit. The

reasoning of Supreme Court decisions comports with

treating church autonomy as an immunity. 9 Lower

courts have an obligation to uphold the Constitution,

and we may be required at times to recognize the full

scope of a constitutional right before the Supreme

Court. See, e.g., Parker v. District of Columbia, 478

F.3d 370 (D.C. Cir. 2007), aff’d sub nom. District of

Columbia v. Heller, 554 U.S. 570 (2008). For instance,

the ministerial exception was first recognized by the

Fifth Circuit in 1972. See McClure v. Salvation Army,

460 F.2d 553, 558–61 (5th Cir. 1972). Only 40 years

later did the Supreme Court squarely hold that this

exception was required under the First Amendment’s

church autonomy doctrine. Hosanna-Tabor, 565 U.S.

at 188.

As new cases arise, we must of course follow the

direction of the Supreme Court. With respect to First

Amendment protections for religious institutions,

that direction strongly points to recognizing the

The Fifth Circuit recently concluded that church

autonomy provides an immunity from suit, splitting

from the Second, Seventh, and Tenth Circuits. See

McRaney v. N. Am. Mission Bd. of the S. Baptist

Convention, Inc., 2025 WL 2602899, at *12–13 (5th

Cir. Sept. 9, 2025). Under an immunity rationale, the

appellate courts of multiple states and the District of

Columbia also allow interlocutory review of church

autonomy denials. See, e.g., United Methodist Church,

Baltimore Ann. Conf. v. White, 571 A.2d 790, 792–93

(D.C. 1990) (Rogers, C.J.); Harris v. Matthews, 643

S.E.2d 566, 569–70 (N.C. 2007).

9

90a

church autonomy doctrine as conferring an immunity

from suit.

C.

Because the church autonomy defense is best

understood as an immunity from suit, the district

court’s rejection of the Bishops’ defense was an

immediately appealable collateral order.

The collateral order doctrine allows interlocutory

appeals from orders “[1] that are conclusive, [2] that

resolve important questions separate from the merits,

and [3] that are effectively unreviewable on appeal

from the final judgment in the underlying action.”

Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42

(1995) (citing Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541, 546 (1949)). In deciding whether an

interlocutory appeal qualifies under the collateral

order doctrine, our analysis focuses on a “class of

claims” and eschews an “individualized jurisdictional

inquiry.” Mohawk Indus., Inc. v. Carpenter, 558 U.S.

100, 107 (2009) (cleaned up). The Supreme Court has

kept the “‘small class’ of collaterally appealable orders

… narrow and selective in its membership.” Will v.

Hallock, 546 U.S. 345, 350 (2006). Even applying this

stringent standard, the requirements for a collateral

order are met for a church autonomy defense.

First, the rejection of a church autonomy defense

is conclusive in that it necessarily subjects a religious

organization to the burdens of further litigation.

“[A]lmost every order the Court has deemed to be

collateral involves a claimed right not to stand trial.”

Adam Reed Moore, A Textualist Defense of a New

Collateral Order Doctrine, 99 Notre Dame L. Rev.

Reflection 1, 9 (2023). The First Amendment protects

91a

a sphere of church autonomy with respect to faith,

doctrine, and internal governance and immunizes

religious organizations from lawsuits that implicate

such matters. As an immunity, church autonomy

serves as “an entitlement not to stand trial or face the

other burdens of litigation.” Mitchell, 472 U.S. at 526.

When a case is “erroneously permitted to go to trial,”

the immunity is “effectively lost.” Id. If a church

autonomy defense is denied at the motion to dismiss

stage, the matter is not “open, unfinished or

inconclusive.” Abney v. United States, 431 U.S. 651,

658 (1977) (cleaned up). Rather, the defendant’s

obligation to proceed to discovery and endure further

burdens of litigation has been conclusively

determined.

Second, the rejection of a church autonomy defense

is “separate” or “conceptually distinct” from the

resolution of the underlying case. Mitchell, 472 U.S. at

527–29. The immunity protects important First

Amendment rights, namely the “independence” of

religious organizations “in matters of faith and

doctrine and in closely linked matters of internal

government.” Our Lady of Guadalupe, 140 S. Ct. at

2061. Whether a lawsuit touches on this sphere raises

a legal question distinct from a plaintiff’s underlying

substantive claims. In this case O’Connell alleges

common law claims for fraud, unjust enrichment, and

breach of fiduciary duty. The merits of those claims

are wholly separate from the validity of the Bishops’

church autonomy defense. That defense depends on

whether the Catholic Church’s administration of a

millennium-old religious offering from congregants to

the Pope is a matter of faith, doctrine, or internal

governance protected by the Religion Clauses.

Analyzing that issue does not require consideration of

92a

whether, for example, the Bishops made material

misrepresentations on which Catholic parishioners

detrimentally relied.

Third and finally, the rejection of a church

autonomy defense is effectively unreviewable on final

appeal because, like other immunities, it is best

understood as “an immunity from suit rather than a

mere defense to liability.” Mitchell, 472 U.S. at 526. It

cannot be “effectively reviewed on appeal from a final

judgment because by that time the immunity from

standing trial will have been irretrievably lost.”

Plumhoff v. Rickard, 572 U.S. 765, 772 (2014); see

Loma Linda-Inland Consortium for Healthcare Educ.

v. NLRB, 2023 WL 7294839, at *17 (D.C. Cir. May 25,

2023) (Rao, J., dissenting from the denial of an

injunction pending appeal) (“The harm caused by the

NLRB trolling through the beliefs of the Consortium

and making determinations about its religious mission

… cannot be undone through a later appeal.”) (cleaned

up); cf. McRaney v. N. Am. Mission Bd. of the S. Baptist

Convention, Inc., 2025 WL 2602899, at *13 (5th Cir.

Sept. 9, 2025) (“An immediate appeal … protects

ecclesiastical organizations from unconstitutional

deprivations of the First Amendment’s” protections.).

As with other immunities, the protections of the

church autonomy defense will be destroyed if not

vindicated before trial.

To satisfy the stringent requirements of the

collateral order doctrine, “the decisive consideration is

whether delaying review until the entry of final

judgment would imperil a substantial public interest

or some particular value of a high order.” Mohawk

Indus., 558 U.S. at 107 (cleaned up). “When a policy is

embodied in a constitutional or statutory provision

93a

entitling a party to immunity from suit (a rare form of

protection), there is little room for the judiciary to

gainsay its ‘importance.’” Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 879 (1994). The

First Amendment protects a sphere of church

autonomy, a paramount freedom for both religious

institutions and individuals. The Supreme Court’s

decisions in Hosanna-Tabor and Our Lady of

Guadalupe reinforce the importance of the church

autonomy defense and its suitability for interlocutory

review. 10

***

The facts of this case typify the stakes for religious

liberty when a church autonomy defense is denied.

O’Connell, an individual congregant, challenges the

Catholic Church’s use of his donation and asks the

Bishops to disclose lengthy donor lists, records of

amounts received, and the ways in which

contributions made under Peter’s Pence were

deployed. Describing the litigation demonstrates

how it plainly encroaches on the heartland of matters

committed to the Church’s exclusive sphere, including

In Hosanna-Tabor and Our Lady of Guadalupe, the

Supreme Court reviewed the appellate courts’ denial

of a church autonomy defense before the dispute went

back to the district court and a full trial was held. See

Hosanna-Tabor, 565 U.S. at 181; Our Lady of

Guadalupe, 140 S. Ct. at 2058–60. Although the

collateral order doctrine does not apply to the Court’s

review, in a sense the Court reviewed interlocutory

appeals similar to the one before us now.

10

94a

ecclesiastical decisions about how to solicit, manage,

and use religious donations. Without immediate

interlocutory review, the Bishops have no meaningful

route to protect their independence from judicial

intrusion into matters of faith, doctrine, and internal

governance. Requiring the Bishops to go forward with

this litigation comports with neither the Constitution

nor the Supreme Court’s precedents. I respectfully

dissent.

95a

28 U.S.C. 1291 provides:

§ 1291. Final decisions of district court

The courts of appeals (other than the United States

Court of Appeals for the Federal Circuit) shall have

jurisdiction of appeals from all final decisions of the

district courts of the United States, the United States

District Court for the District of the Canal Zone, the

District Court of Guam, and the District Court of the

Virgin Islands, except where a direct review may be

had in the Supreme Court. The jurisdiction of the

United States Court of Appeals for the Federal Circuit

shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title.

96a

General Docket

United States Court of Appeals for

District of Columbia Circuit

Court of Appeals Docket #: 23-7173

Docketed: 12/22/2023

Nature of Suit: 3370 Other Fraud

Termed: 04/25/2025

David O’Connell v. United States Conference of

Catholic Bishops

Appeal From: United States District Court for the

District of Columbia

Fee Status: Fee Paid

Case Type Information:

1) Civil Private

2) Private

3)

Originating Court Information:

District: 0090-1: 1:20-cv-01365-JMC

Lead: 1:20-cv-01365-JMC

Court Reporter: Lisa Bankins, Court Reporter

Court Reporter: Stacy Heavenridge Johns,

Court Reporter

Court Reporter: Nancy Meyer, Court Reporter

Court Reporter: Bryan Wayne

Motions Judge: Jia M. Cobb, U.S. District

Judge

Date Filed: 05/21/2020

Date Order/Judgement:

Date NOA Filed:

11/17/2023

12/18/2023

Prior Cases:

None

Current Cases:

None

97a

David O’Connell

Plaintiff-Appellee

Simon Carlo Franzini

Direct: 310-656-7066

Email: simon@dovel.com

[COR LD NTC Retained]

Dovel and Luner

201 Santa Monica

Boulevard Suite 600

Santa Monica, CA 90401

Martin Woodward

Direct: 214-443-4304

Email:

martin@kitnerwoodward.co

m

Fax: 214-443-4304

[COR LD NTC Retained]

Kitner Woodward PLLC

13101 Preston Road

Suite 110

Dallas, TX 75240

Gabriel Zachiah Doble

Direct: 310-656-7066

Email: gabe@dovel.com

[COR NTC Retained]

Dovel and Luner

201 Santa Monica

Boulevard Suite 600

Santa Monica, CA 90401

v.

98a

United States

Conference of Catholic

Bishops

DefendantAppellant

Kevin Taylor Baine

Direct: 202-434-5010

Email: kbaine@wc.com

Fax: 202-434-5029

[COR NTC Retained]

Williams & Connolly LLP

Firm: 202-434-5000

680 Maine Avenue, SW

Washington, DC 20024

Daniel Blomberg

Direct: 202-955-0095

Email:

dblomberg@becketfund.org

[COR NTC Retained]

The Becket Fund for

Religious Liberty 1919

Pennsylvania Avenue, NW

Suite 400

Washington, DC 20006

Emmet Thomas Flood

Direct: 202-434-5300

Email: eflood@wc.com

[COR NTC Retained]

Williams & Connolly LLP

Firm: 202-434-5000

680 Maine Avenue, SW

Washington, DC 20024

Colten L. Stanberry

Direct: 202-955-0095

Email:

coltenstanberry@gmail.com

[COR NTC Retained]

99a

The Becket Fund for

Religious Liberty

1919 Pennsylvania Avenue,

NW Suite 400

Washington, DC 20006

Mark Storslee

Direct: 202-434-5000

Email: mstorslee@wc.com

[COR NTC Retained]

Williams & Connolly LLP

Firm: 202-434-5000

680 Maine Avenue, SW

Washington, DC 20024

Laura Wolk

Direct: 202-955-0095

Email:

lslavis@becketfund.org

[COR NTC Retained]

The Becket Fund for

Religious Liberty

1919 Pennsylvania Avenue,

NW Suite 400

Washington, DC 20006

------------Lael Weinberger

Matthew Hilderbrand

Amicus Curiae for Direct: 737-354-5507

Appellant

Email:

matthew.hilderbrand@baker

botts.com

[COR NTC Retained]

Baker Botts LLP

401 South 1st Street, Suite

100a

1300

Austin, TX 78704

Aaron Michael Streett

Direct: 713-229-1855

Email:

aaron.streett@bakerbotts.co

m

Fax: 713-229-7855

[COR NTC Retained]

Baker Botts LLP

Firm: 713-229-1234

910 Louisiana Street

33rd Floor

Houston, TX 77002

Americans United for Jenny Samuels

Separation of Church Direct: 646-898-5602

and State

Email: samuels@au.org

Amicus Curiae for [COR LD NTC Retained]

Americans United for

Appellee

Separation of Church and

State

Firm: 202-466-3234

1310 L Street, NW Suite 200

Washington, DC 20005

Alexander Joseph

Luchenitser, Esquire

Email: luchenitser@au.org

[COR NTC Retained]

Americans United for

Separation of Church and

State Firm: 202-466-3234

1310 L Street, NW

101a

Suite 200

Washington, DC 20005

Derek T. Muller

Rachel G. Frank

Amicus Curiae for Email:

Appellant

rachelfrank@quinnemanuel.

com

[COR NTC Retained]

Quinn Emanuel Urquhart &

Sullivan LLP

Firm: 202-538-8000

1300 I Street, NW

Suite 900

Washington, DC 20005

Christopher George Michel,

Counsel

Direct: 202-538-8308

Email:

christophermichel@quinnem

anuel.com

[COR NTC Retained]

Quinn Emanuel Urquhart &

Sullivan LLP

Firm: 202-538-8000

1300 I Street, NW

Suite 900

Washington, DC 20005

Daniel F. Mummolo,

Attorney

Direct: 212-849-7000

Email:

danielmummolo@quinnema

nuel.com

102a

[COR NTC Retained]

Quinn Emanuel Urquhart &

Sullivan LLP

Firm: 212-849-7000

295 Fifth Avenue New York,

NY 10016

Lutheran ChurchMissouri Synod

Amicus Curiae for

Appellant

Michael Showalter

Direct: 202-719-7393

Email:

mshowalter@wiley.law

[COR LD NTC Retained]

Wiley Rein LLP

Firm: 202-719-7000

2050 M Street, NW

Washington, DC 20036

Joel Nolette

Direct: 202-719-4741

Email: jnolette@wiley.law

[COR NTC Retained]

Wiley Rein LLP

Firm: 202-719-7000

2050 M Street, NW

Washington, DC 20036

Thomas C. Berg

Russell Bernard Balikian

Amicus Curiae for Direct: 202-955-8535

Appellant

Email:

RBalikian@gibsondunn.com

Fax: 202-530-9542

[COR NTC Retained]

Gibson, Dunn & Crutcher

LLP Firm: 202-955-8500

1700 M Street, NW

103a

Washington, DC 20036

Thomas G. Hungar, Esquire,

General Counsel

Direct: 202-955-8500

Email:

thungar@gibsondunn.com

Fax: 202-530-4213

[COR NTC Retained]

Gibson, Dunn & Crutcher

LLP Firm: 202-955-8500

1700 M Street, NW

Washington, DC 20036

Elizabeth Clark

Russell Bernard Balikian

Amicus Curiae for Direct: 202-955-8535

Appellant

[COR NTC Retained]

(see above)

Thomas G. Hungar, Esquire,

General Counsel

Direct: 202-955-8500

[COR NTC Retained]

(see above)

Richard W. Garnett

Russell Bernard Balikian

Amicus Curiae for Direct: 202-955-8535

Appellant

[COR NTC Retained]

(see above)

Thomas G. Hungar, Esquire,

General Counsel

Direct: 202-955-8500

[COR NTC Retained]

(see above)

104a

Douglas Laycock

Russell Bernard Balikian

Amicus Curiae for Direct: 202-955-8535

Appellant

[COR NTC Retained]

(see above)

Thomas G. Hungar, Esquire,

General Counsel

Direct: 202-955-8500

[COR NTC Retained]

(see above)

Christopher C. Lund

Russell Bernard Balikian

Amicus Curiae for Direct: 202-955-8535

Appellant

[COR NTC Retained]

(see above)

Thomas G. Hungar, Esquire,

General Counsel

Direct: 202-955-8500

[COR NTC Retained]

(see above)

Michael W. McConnell, Russell Bernard Balikian

Attorney

Direct: 202-955-8535

Amicus Curiae for [COR NTC Retained]

Appellant

(see above)

Thomas G. Hungar, Esquire,

General Counsel

Direct: 202-955-8500

[COR NTC Retained]

(see above)

Michael P. Moreland

Russell Bernard Balikian

Amicus Curiae for Direct: 202-955-8535

105a

Appellant

[COR NTC Retained]

(see above)

Thomas G. Hungar, Esquire,

General Counsel

Direct: 202-955-8500

[COR NTC Retained]

(see above)

Robert J. Pushaw

Russell Bernard Balikian

Amicus Curiae for Direct: 202-955-8535

Appellant

[COR NTC Retained]

(see above)

Thomas G. Hungar, Esquire,

General Counsel

Direct: 202-955-8500

[COR NTC Retained]

(see above)

Eugene Volokh

Russell Bernard Balikian

Amicus Curiae for Direct: 202-955-8535

Appellant

[COR NTC Retained]

(see above)

Thomas G. Hungar, Esquire,

General Counsel

Direct: 202-955-8500

[COR NTC Retained]

(see above)

Assembly of Canonical

Orthodox Bishops of

the United States of

America

Michael Showalter

Direct: 202-719-7393

[COR LD NTC Retained]

(see above)

106a

Amicus Curiae for

Appellant

Joel Nolette

Direct: 202-719-4741

[COR NTC Retained]

(see above)

Church of Jesus Christ Michael Showalter

of Latter-Day Saints

Direct: 202-719-7393

Amicus Curiae for [COR LD NTC Retained]

Appellant

(see above)

Joel Nolette

Direct: 202-719-4741

[COR NTC Retained]

(see above)

General Conference of

Seventh-Day

Adventists

Amicus Curiae for

Appellant

Michael Showalter

Direct: 202-719-7393

[COR LD NTC Retained]

(see above)

Jewish Coalition for

Religious Liberty

Amicus Curiae for

Appellant

Michael Showalter

Direct: 202-719-7393

[COR LD NTC Retained]

(see above)

Joel Nolette

Direct: 202-719-4741

[COR NTC Retained]

(see above)

Joel Nolette

Direct: 202-719-4741

[COR NTC Retained]

(see above)

107a

Muslim Public Affairs

Council

Amicus Curiae for

Appellant

Michael Showalter

Direct: 202-719-7393

[COR LD NTC Retained]

(see above)

Joel Nolette

Direct: 202-719-4741

[COR NTC Retained]

(see above)

National Association of Michael Showalter

Evangelicals

Direct: 202-719-7393

Amicus Curiae for [COR LD NTC Retained]

Appellant

(see above)

Joel Nolette

Direct: 202-719-4741

[COR NTC Retained]

(see above)

Arizona Legislature

James A. Barta

Amicus Curiae for Direct: 317-232-0709

Appellant

Email:

james.barta@atg.in.gov

[COR NTC Gvt NonFederal]

Office of the Indiana

Attorney General

Firm: 317-234-6843

302 West Washington Street

Indiana Government Center

South, 5th Floor

Indianapolis, IN 46204

108a

Jenna Lorence

Direct: 907-269-7938

Email:

jenna.lorence@atg.in.gov

[COR NTC Gvt NonFederal]

Deputy Attorney General

Alaska Department of Law

Firm: 907-269-5100

1031 W. 4th Avenue, Suite

200

Anchorage, AL 99502

Belmont Abbey College Parker William Knight, III

Amicus Curiae for Direct: 617-998-2464

Appellant

Email:

pknight@law.harvard.edu

[COR NTC Retained]

Harvard Law School

Wcc 5110

6 Everett Street

Cambridge, MA 02138

Joshua C. McDaniel

Direct: 617-496-4383

Email:

jmcdaniel@law.harvard.edu

[COR NTC Retained]

Harvard Law School

Religious Freedom Clinic

Suite 5110

6 Everett Street

Cambridge, MA 02138

J. Reuben Clark Law

Jasjaap S. Sidhu

109a

Society

Direct: 818-995-0800

Amicus Curiae for Email:

Appellant

jsidhu@horvitzlevy.com

[COR NTC Retained]

Horvitz & Levy LLP

3601 West Olive Avenue,

8th Floor 8th Fl.

Burbank, CA 91505-4681

John A. Taylor, Jr.

Direct: 818-995-0800

Email:

jtaylor@horvitzlevy.com

Fax: 844-497-6592

[COR NTC Retained]

Horvitz & Levy LLP

3601 West Olive Avenue,

8th Floor 8th Fl.

Burbank, CA 91505-4681

State of Indiana

James A. Barta

Amicus Curiae for Direct: 317-232-0709

Appellant

[COR NTC Gvt NonFederal]

(see above)

Jenna Lorence

Direct: 907-269-7938

[COR NTC Gvt NonFederal]

(see above)

110a

David O’Connell,

v.

Plaintiff - Appellee

United States Conference of Catholic Bishops,

Defendant – Appellant

---------------------------Lael Weinberger,

Amicus Curiae for Appellant

Americans United for Separation of Church and

State,

Amicus Curiae for Appellee

Derek T. Muller; Lutheran Church-Missouri Synod;

Thomas C. Berg; Elizabeth Clark; Richard W.

Garnett; Douglas Laycock; Christopher C. Lund;

Michael W. McConnell, Attorney; Michael P.

Moreland; Robert J. Pushaw; Eugene Volokh;

Assembly of Canonical Orthodox Bishops of the

United States of America; Church of Jesus Christ of

Latter-Day Saints; General Conference of Seventh

Day Adventists; Jewish Coalition for Religious

Liberty; Muslim Public Affairs Council; National

Association of Evangelicals; Arizona Legislature;

Belmont Abbey College; J. Reuben Clark Law

Society; State of Indiana,

Amici Curiae for Appellant

111a

12/22/2023

PRIVATE CIVIL CASE

docketed. [23-7173] [Entered:

12/22/2023 09:34 AM]

12/22/2023 11 pg, NOTICE OF APPEAL

237.03 [2032971] seeking review of a

KB

decision by the U.S. District

Court in 1:20-cv-01365-JMC

filed by United States

Conference of Catholic Bishops.

Appeal assigned USCA Case

Number: 23-7173. [23-7173]

[Entered: 12/22/2023 09:35

AM]

12/22/2023 1 pg,

45 KB

LETTER [2032974] sent

regarding attorney

membership to Marc R Stanley

for David O’Connell.

Application for Admission due

01/22/2024. [23-7173] [Entered:

12/22/2023 09:36 AM]

12/22/2023 1 pg,

40.65

KB

CLERK’S ORDER [2032977]

filed to show cause regarding

dismissing case for lack of

jurisdiction. Response to Order

due 01/22/2024. The response

may not exceed the length

limitations established in the

order., Failure to respond shall

result in dismissal of the case

for lack of prosecution; The

Clerk is directed to send this

112a

order to appellant by certified

mail, return receipt requested

and by 1st class mail. [23-7173]

[Entered: 12/22/2023 09:45

AM]

12/22/2023

CERTIFIED AND FIRST

CLASS MAIL SENT [2033076]

with return receipt requested

[Receipt No.7021 0350 0001

9948 2377] of order [20329775]. Certified Mail Receipt due

01/22/2024 from United States

Conference of Catholic Bishops.

[23-7173] [Entered: 12/22/2023

12:55 PM]

01/04/2024 1 pg,

45.83

KB

LETTER [2034436] sent

regarding attorney

membership to Martin

Woodward for David O’Connell.

Application for Admission due

02/05/2024. [23-7173] [Entered:

01/04/2024 02:35 PM]

01/12/2024 4 pg,

3.22

MB

FIRST CLASS MAIL RETURN

[2036415] marked

“UNCLAIMED - UNABLE TO

FORWARD”. Mail [2033076-2],

[2032974-2] had been sent to

Attorney Marc R. Stanley for

Appellee David O’Connell. [237173] [Entered: 01/19/2024

11:56 AM]

113a

01/22/2024 1 pg,

73.38

KB

ENTRY OF APPEARANCE

[2036880] filed by Emmet T.

Flood and co-counsel Kevin T.

Baine; Mark S. Storslee on

behalf of Appellant United

States Conference of Catholic

Bishops. [23-7173] (Flood,

Emmet) [Entered: 01/22/2024

10:16 PM]

01/22/2024 69 pg,

983.8

KB

RESPONSE [2036883] to order

[2032977-2], [2032977-3],

[2032977-4], [2032977-5]

combined with a MOTION for

this Court to note jurisdiction,

as the district court’s decision

qualifies as a collateral order

over which appellate

jurisdiction is proper filed by

United States Conference of

Catholic Bishops [Service Date:

01/22/2024 by CM/ECF NDA]

Length Certification: 5,123

Words. [23-7173] (Flood,

Emmet) [Entered: 01/22/2024

11:12 PM]

ENTRY OF APPEARANCE

01/31/2024 1 pg,

774.47 [2038191] filed by Martin

KB

Woodward on behalf of

Appellee David O’Connell. [237173] (Woodward, Martin)

[Entered: 01/31/2024 11:11

AM]

114a

02/15/2024 1 pg,

302.9

KB

DUPLICATE FILINGDISREGARD--ENTRY OF

APPEARANCE [2040689] filed

by Simon Franzini on

behalf of Appellee David

O’Connell. [23-7173]--[Edited

02/16/2024 by HNG] (Doble,

Gabriel) [Entered: 02/15/2024

09:41 PM]

02/15/2024 1 pg,

302.9

KB

ENTRY OF APPEARANCE

[2040690] filed by Gabriel

Doble on behalf of Appellee

David O’Connell. [23-7173]

(Doble, Gabriel) [Entered:

02/15/2024 09:43 PM]

02/15/2024 4 pg,

17.09

KB

MOTION [2040691] for leave to

file response filed by David

O’Connell (Service Date:

02/15/2024 by CM/ECF NDA)

Length Certification: 101

words. [23-7173] (Doble,

Gabriel) [Entered: 02/15/2024

09:48 PM]

02/28/2024 1 pg,

38.35

KB

CLERK’S ORDER [2042788]

filed granting motion for leave

to file [2040691-2]; directing

response to jurisdictional

statement [2036883-3] due

03/20/2024 [23-7173] [Entered:

02/28/2024 05:19 PM]

115a

03/20/2024 156

pg,

3.78

MB

RESPONSE IN OPPOSITION

[2045896] to motion [20368832] filed by David O’Connell

[Service Date: 03/20/2024 by

CM/ECF NDA] Length

Certification: 5177. [23-7173]

(Doble, Gabriel) [Entered:

03/20/2024 03:36 PM]

MOTION [2047335] for leave to

03/28/2024 6 pg,

128.56 file reply filed by United

This text is long and has been trimmed here. Open the source document for the complete record.