In O'Connell v. U.S. Conference of Catholic Bishops, (DC Cir., Nov. 6, 2025), the DC Circuit Court of Appeals, over one dissent, denied en banc review of a panel's refusal to allow an interlocutory appeal of a ruling in which the district court refused to dismiss a case against the Conference of Bishops (USCCB). Plaintiff in the case charged the USCCB with fraudulent solicitation of donations, claiming that it misrepresented where money donated to Peter's Pence Collection would go. USCCB sought dismissal of the suit on church autonomy grounds. The district court refused. A 3-judge panel of the DC Circuit in O'Connell v. U.S. Conference of Bishops, (DC Cir., April 25, 2025), held that the district court's ruling could not be appealed until the district court had rendered a final decision in the case. The panel said in part:
... [I]t seems clear that the [Supreme] 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.
In last week's decision, the DC Circuit en banc agreed. While no opinion for the majority accompanied the Order denying en banc review, two of the Court's judges, Judge Walker and Judge Edwards, each filed a separate opinion concurring in the decision. Judge Edwards said in part:
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 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.
Judge Rao filed a 31-page dissenting opinion, saying in part:
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, doctrine, and internal governance, O’Connell’s lawsuit should have been dismissed....
... [T]he 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....
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 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....
