Tucker v. Faith Bible Chapel Int'l
| Decision Date | 15 November 2022 |
| Docket Number | 20-1230 |
| Citation | 53 F.4th 620 (Mem) |
| Parties | Gregory TUCKER, Plaintiff - Appellee, v. FAITH BIBLE CHAPEL INTERNATIONAL, d/b/a Faith Christian Academy, Inc., Defendant - Appellant. Eugene Volokh; Robert J. Pushaw; Richard W. Garnett; Robert Cochran; Elizabeth A. Clark; the Association of Christian Schools International ; the Colorado Catholic Conference ; Religious Liberty Scholars; Jewish Coalition for Religious Liberty; Professor Asma Uddin; National Women's Law Center; American Federation of State, County and Municipal Employees ; American Sexual Health Association; California Women Lawyers; DC Coalition Against Domestic Violence ; Desiree Alliance; Equal Rights Advocates; Equality California; Equity Forward; Forge, Inc.; GLBTQ Legal Advocates & Defenders; Human Rights Campaign; In Our Own Voice; National Black Women's Reproductive Justice Agenda; KWH Law Center for Social Justice and Change; LatinoJustice PRLDEF; Legal Aid At Work; Legal Voice; Muslims for Progressive Values; Naral Pro-Choice America; National Asian Pacific American Women's Forum ; National Association of Social Workers ; National Coalition Against Domestic Violence; National Organization for Women Foundation ; New York Lawyers for the Public Interest ; People for the American Way Foundation; Religious Coalition for Reproductive Choice; Reproductive Justice Action Collective; Service Employees International Union; Spark Reproductive Justice Now!, Inc.; Ujima Inc.; the National Center on Violence Against Women in the Black Community; Women Employed; Women Lawyers on Guard Inc.; Women's Bar Association of the District of Columbia; Women's Bar Association of the States of New York ; Women's Institute for Freedom of the Press; the Women's Law Center of Maryland ; Woman's Law Project; WV Free; Civil Rights Education and Enforcement Center; National Employment Lawyers Association; the Employee Rights Advocacy Institute for Law & Policy, and the Institute for Constitutional Advocacy and Protection; Benedictine College, Inc.; Thomas C. Berg; Mark E. Chopko; Christian Legal Society; Carl H. Esbeck; Douglas Laycock; the Cardinal Newman Society; the Lutheran Church-Missouri Synod; Robert W. Tuttle, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Peter G. Friesen, Bradley A. Levin, Jeremy Sitcoff, Levin Sitcoff Waneka, Denver, CO, Bradley Girard, Gabriela Hybel, Richard Brian Katskee, Adrianne Spoto, Americans United for Separation of Church and State, Washington, DC, for Plaintiff - Appellee.
Daniel Benson, Daniel Howard Blomberg, Daniel Chen, Becket Fund for Religious Liberty, Washington, DC, Christopher J. Conant, Robert W. Hatch, II, Hatch Ray Olsen Conant, Denver, CO, for Defendant - Appellant.
Conor Brendan Dugan, Matthew T. Nelson, Warner, Norcross & Judd, Grand Rapids, MI, for Amici Curiae Eugene Volokh, Robert J. Pushaw, Richard W. Garnett, Robert Cochran, Elizabeth A. Clark.
Christian Mark Poland, Bryan Cave Leighton Paisner, Chicago, IL, for Amici Curiae the Association of Christian Schools International, the Colorado Catholic Conference, Benedictine College, Inc., Christian Legal Society, the Cardinal Newman Society, the Lutheran Church-Missouri Synod.
Michael Francisco, McGuire Woods, Washington, DC, for Amici Curiae Religious Liberty Scholars, Mark E. Chopko, Carl H. Esbeck, Robert W. Tuttle.
Russell Balikian, Anna Casey, Thomas G. Hungar, Gibson Dunn, Washington, DC, John Gibbons, Jr., Daniel J. Hay, Paul J. Zidlicky, Sidley Austin, Washington, DC, Joshua D. Wade, McGuire Woods, Richmond, VA, for Amici Curiae Jewish Coalition for Religious Liberty, Professor Asma Uddin.
Todd Anten, Quinn Emanuel Urquhart & Sullivan, New York, NY, Sunu Chandy, Emily Martin, Laura Narefsky, National Women's Law Center, Washington, DC, Justin T. Reinheimer, Quinn Emanuel Urquhart & Sullivan, San Francisco, CA, for Amici Curiae National Women's Law Center, American Federation of State, County and Municipal Employees, American Sexual Health Association, California Women Lawyers, DC Coalition Against Domestic Violence, Desiree Alliance, Equal Rights Advocates, Equality California, Equity Forward, Forge, Inc., GLBTQ Legal Advocates & Defenders, Human Rights Campaign, In Our Own Voice, National Black Women's Reproductive Justice Agenda, KWH Law Center for Social Justice and Change, LatinoJustice PRLDEF, Legal Aid At Work, Legal Voice, Muslims for Progressive Values, Naral Pro-Choice America, National Asian Pacific American Women's Forum, National Association of Social Workers, National Coalition Against Domestic Violence, National Organization for Women Foundation, New York Lawyers for the Public Interest, People for the American Way Foundation, Religious Coalition for Reproductive Choice, Reproductive Justice Action Collective, Spark Reproductive Justice Now!, Inc., Ujima Inc., the National Center on Violence Against Women in the Black Community, Women Employed, Women Lawyers on Guard Inc., Women's Bar Association of the District of Columbia, Women's Bar Association of the States of New York, Women's Institute for Freedom of the Press, the Women's Law Center of Maryland, Woman's Law Project, WV Free.
Robert Friedman, Gupta Wessler, Washington, DC, for Amici Curiae Civil Rights Education and Enforcement Center, National Employment Lawyers Association, the Employee Rights Advocacy Institute for Law & Policy, and the Institute for Constitutional Advocacy and Protection.
Andrew Ferguson, Gibson Dunn, Washington, DC, Thomas G. Hungar, Gibson Dunn Firm, Washington, DC, for Amici Curiae Thomas C. Berg, Douglas Laycock.
Before HARTZ, TYMKOVICH, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, CARSON, and ROSSMAN, Circuit Judges.*
This matter is before the court on Defendant-Appellant's Petition for Rehearing En Banc ("Petition"). We also have a response from Appellee, and a reply from Appellant.
The Petition, response, and reply were circulated to all non-recused judges of the court who are in regular active service, and a poll was called. A majority of the participating judges voted to deny the Petition. See Fed. R. App. P. 35(a). Consequently, the Petition is DENIED. Judges Tymkovich, Bacharach, Eid, and Carson voted to grant en banc rehearing. Judge Ebel has filed a separate concurrence in support of the denial of en banc rehearing, which is joined by Judge McHugh. Judge Bacharach has filed a separate dissent, which is joined by Judges Tymkovich and Eid.
The pending motions for leave to file amicus briefs are GRANTED, as is the Unopposed Motion to Withdraw Amicus Party Maur Hill-Mount Academy's Joinder in Amicus Brief and for Leave to File Substitute Brief ("Motion to Withdraw"). The Clerk's Office shall delete the proposed amicus brief submitted with the June 28, 2022 Unopposed Motion for Leave to File Amicus Brief in Support of Appellant Faith Bible Chapel's Petition for Rehearing En Banc by Association of Christian Schools International, Colorado Catholic Conference, Lutheran Church-Missouri Synod, The Cardinal Newman Society, Benedictine College, and Maur Hill-Mount Academy, and replace it with the substitute amicus brief submitted with the Motion to Withdraw.
The only question presented in this case is whether, under Cohen’s collateral order doctrine,1 Defendant Faith Bible Chapel International ("Faith Christian") is entitled to an immediate appeal from the district court's interlocutory ruling denying Faith Christian summary judgment on its affirmative ministerial exception defense because there are genuinely disputed issues of material fact as to whether Plaintiff Gregory Tucker qualifies as a minister for purposes of the exception. Our panel decision denying Faith Christian an immediate appeal is consistent with well-established lines of Supreme Court precedent and does not create any circuit split.
First and foremost, our decision is consistent with the Supreme Court's long line of cases permitting an interlocutory appeal under Cohen in only limited circumstances, as a narrow exception to Congress's requirement in 28 U.S.C § 1291 that appeals be taken only from final judgments that end litigation. See, e.g., Will v. Hallock, 546 U.S. 345, 349–50, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) ; Johnson v. Jones, 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). The Supreme Court has consistently admonished circuit courts against expanding the availability of interlocutory Cohen appeals. See Kell v. Benzon, 925 F.3d 448, 452 (10th Cir. 2019). Our decision heeds the Court's admonitions.
The Supreme Court has permitted interlocutory appeals under Cohen in very limited situations, but only to permit early review of legal, rather than factual, questions, see Johnson, 515 U.S. at 307, 309–18, 115 S.Ct. 2151. The Supreme Court has specifically denied an immediate appeal to challenge an interlocutory ruling denying summary judgment because there was sufficient evidence for the case to survive summary judgment and proceed to trial. See id. at 307, 313–18, 115 S.Ct. 2151. That is exactly the issue Faith Christians seeks to appeal immediately in our case.
In Johnson, the Supreme Court denied an immediate appeal from a decision denying summary judgment because there remained disputed issues of material fact. The Supreme Court concluded that the costs of delay, expense and disruption of allowing interlocutory appeals in the midst of ongoing litigation outweighed the benefits of an interlocutory appeal. See id. Those same costs support our conclusion not to permit an immediate appeal in our case.
Here, those costs stem in part from the fact that the question of whether an employee qualifies as a minister involves a case-by-case fact-intensive inquiry, as the Supreme Court has clearly recognized. See Our Lady of Guadalupe Sch. v. Morrisey-Berru, ––– U.S. ––––, 140 S. Ct. 2049, 2063, 2066–67, 207 L.Ed.2d 870 (2020) ; Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, ...
To continue reading
Request your trial