Belya v. Kapral

21-1498
Belya v. Kapral, et al.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2021

(Argued: March 7, 2022 Decided: August 17, 2022)

Docket No. 21-1498

ALEXANDER BELYA,

Plaintiff-Appellee,

v.

HILARION KAPRAL, AKA METROPOLITAN HILARION, NICHOLAS OLKHOVSKIY,
VICTOR POTAPOV, SERGE LUKIANOV, DAVID STRAUT, ALEXANDRE ANTCHOUTINE,
GEORGE TEMIDIS, SERAFIM GAN, BORIS DMITRIEFF, EASTERN AMERICAN DIOCESE OF
THE RUSSIAN ORTHODOX CHURCH OUTSIDE OF RUSSIA, THE SYNOD OF BISHOPS OF
THE RUSSIAN ORTHODOX CHURCH OUTSIDE OF RUSSIA, MARK MANCUSO,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: CHIN, LOHIER, AND ROBINSON, Circuit Judges.


The Clerk of Court is directed to amend the caption as set forth above.
 Appeal from orders of the United States District Court for the

Southern District of New York (Marrero, J.) denying motions of defendants-

appellants church officials and organizations to dismiss plaintiff-appellee's

defamation claims, for reconsideration of that ruling, and to bifurcate discovery

or otherwise stay proceedings. Defendants-appellants argue that the church

autonomy doctrine bars the defamation claims and seek to appeal the

interlocutory orders on the basis of the collateral order doctrine. We conclude

that we lack appellate jurisdiction over the orders.

DISMISSED. STAY VACATED.

DIANA VERM THOMSON (Daniel H. Blomberg, Lori H.
Windham, Daniel D. Benson, on the brief), The
Becket Fund for Religious Liberty, Washington,
DC, and Donald J. Feerick, Jr., Feerick Nugent
MacCartney, PLLC, South Nyack, NY, for
Defendants-Appellants.

BRADLEY GIRARD (Richard B. Katskee, on the brief),
Americans United for Separation of Church and
State, Washington, DC, and Oleg Rivkin, Rivkin
Law Group PLLC, New York, NY, for Plaintiff-
Appellee.

Thomas G. Hungar, Andrew G.I. Kilberg, John Matthew
Butler, Jason Manion, Macey L. Olave, Gibson,
Dunn & Crutcher LLP, Washington, DC, and San
Francisco, CA, for Amici Curiae Professor Michael
W. McConnell and Professor Douglas Laycock.

2
Gordon D. Todd, Daniel J. Hay, John L. Gibbons, Sidley
Austin LLP, Washington, DC, for Amici Curiae The
Roman Catholic Archdiocese of New York, Assemblies
of God (USA), Jurisdiction of the Armed Forces and
Chaplaincy of the Anglican Church in North America,
General Conference of Seventh-Day Adventists, The
Lutheran Church-Missouri Synod, and The
International Society for Krishna Consciousness, in
support of Defendants-Appellants.

Ryan Paulsen, Ryan N. Gardner, Haynes and Boone,
LLP, Dallas, TX, for Amicus Curiae Jewish Coalition
for Religious Liberty, in support of Defendants-
Appellants.

Matthew T. Nelson, Warner Norcross + Judd LLP,
Grand Rapids, MI, for Amici Curiae Constitutional
Law Scholars, in support of Defendants-Appellants.

James A. Campbell, Solicitor General of Nebraska;
Douglas J. Peterson, Attorney General of
Nebraska; David T. Bydalek, Chief Deputy
Attorney General of Nebraska; Steve Marshall,
Attorney General of Alabama; Mark Brnovich,
Attorney General of Arizona; Leslie Rutledge,
Attorney General of Arkansas; Chris Carr,
Attorney General of Georgia; Derek Schmidt,
Attorney General of Kansas; Daniel Cameron,
Attorney General of Kentucky; Jeff Landry,
Attorney General of Louisiana; Lynn Fitch,
Attorney General of Mississippi; Eric S. Schmitt,
Attorney General of Missouri; Austin Knudsen,
Attorney General of Montana; John M. O'Connor,
Attorney General of Oklahoma; Alan Wilson,
Attorney General of South Carolina; and Sean D.

3
 Reyes, Attorney General of Utah, for Amici Curiae
States of Nebraska, Alabama, Arizona, Arkansas,
Georgia, Kansas, Kentucky, Louisiana, Mississippi,
Missouri, Montana, Oklahoma, South Carolina, and
Utah, in support of Defendants-Appellants.

CHIN, Circuit Judge:

In this case, plaintiff-appellee Alexander Belya sued defendants-

appellants -- individuals and entities affiliated with the Russian Orthodox

Church Outside Russia ("ROCOR" and, collectively, "Defendants") -- for

defamation, contending that they defamed him when they publicly accused him

of forging a series of letters relating to his appointment as the Bishop of Miami.

Defendants moved to dismiss based on the "church autonomy

doctrine," arguing that Belya's suit would impermissibly involve the courts in

matters of faith, doctrine, and internal church government. The district court

denied the motion. Defendants then filed a motion for reconsideration and a

motion to limit discovery to the issue of whether the church autonomy doctrine

applied or otherwise to stay proceedings. The district court denied those

motions as well. Defendants appeal from the three interlocutory rulings.

Appellate jurisdiction typically requires either a final judgment,

28 U.S.C. § 1291, or a certified interlocutory appeal, 28 U.S.C. § 1292(b). The

4
district court denied Defendants' motions without entering a final judgment (the

case is pending in the district court, although proceedings have been stayed) and

declined to certify an interlocutory appeal. Defendants argue that we have

appellate jurisdiction based on the collateral order doctrine, which allows for

appellate review of an interlocutory order if the ruling (1) is conclusive;

(2) resolves important questions separate from the merits; and (3) is effectively

unreviewable on appeal after a final judgment is entered.

We hold that the collateral order doctrine does not apply in the

circumstances here. We therefore dismiss this appeal.

BACKGROUND

A. The Facts

This case hinges on public accusations that Belya forged certain

documents relating to his role within ROCOR. The facts as alleged in Belya's

amended complaint (the "Complaint") are assumed to be true for purposes of this

appeal.

1. Belya's Apparent Election as Bishop

Belya served as a ROCOR priest in the Czech Republic and Slovakia

before moving to the United States eleven years ago. He served in the United

5
States as a ROCOR priest until September 14, 2019, when he was suspended

pending an investigation into the matters discussed below.

As set forth in the Complaint, Belya was elected by the Synod of

Bishops of ROCOR (the "Synod") -- the executive arm of ROCOR -- to the

position of Bishop of Miami. The election was held from December 6 through 10,

2018.

Defendant-appellant Hilarion Kapral, also known as Metropolitan

Hilarion, was the "ruling bishop and First Hierarch" of ROCOR. Defs.-

Appellants' Br. at 5.1 Metropolitan Hilarion apparently wrote a letter dated

December 10, 2018 (the "December 10 letter") to Patriarch Kirill, the Patriarch of

Moscow and All Russia, which stated:

I am happy to share the joyful news – by a majority vote
two Vicar Bishops have been elected to the diocese
entrusted to me. They are most worthy candidates.
....
[Candidates include] Archimandrite Alexander
(Belya) . . . elected as the Bishop of Miami.

1
"Metropolitan" is a title within ROCOR. According to ROCOR, Metropolitan
Hilarion passed away on May 16, 2022. See Press Release, The Russian Orthodox
Church Outside of Russia, His Eminence Metropolitan Hilarion of Eastern America and
New York, First Hierarch of the Russian Church Abroad, Reposes in the Lord (May 16,
2022), https://www.synod.com/synod/eng2022/ 20220516_print_enmhrepose.html.

6
Joint App'x at 92. According to the Complaint, the December 10 letter was

signed by Metropolitan Hilarion and stamped with his official seal.

That same day, Metropolitan Hilarion also sent a letter to Belya,

explaining that there were certain corrections that Belya needed to make to his

practices. The Synod designated Archbishop Gavriil to report on Belya's

implementation of these corrections. In early January 2019 (the "early January

letter"), Archbishop Gavriil wrote to Metropolitan Hilarion, stating that:

I do not see any obstacles to approv[ing] the date of
consecration of [Belya], elected as the Vicar Bishop for
Miami, of which I hereby inform Your Eminence.

Id. at 93. Soon thereafter, on January 11, 2019 (the "January 11 letter"),

Metropolitan Hilarion wrote again to Patriarch Kirill, stating as follows:

I hereby ask Your Holiness to approve [Belya's]
candidacy at the next meeting of the Holy Synod of the
Russian Orthodox Church.

Id. at 94. Like the December 10 letter, the January 11 letter apparently was signed

by Metropolitan Hilarion and stamped with his official seal.

On July 16, 2019, Belya had an audience with Patriarch Kirill. Six

weeks later, on August 30, 2019, the Moscow Patriarchate's official website

posted the decision to approve Belya's appointment. On that same day,

Metropolitan Hilarion congratulated Belya via phone call.

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 2. The Allegations of Forgery and Fraud

Four days later, on September 3, 2019, several ROCOR clergy

members2 wrote a letter about Belya to the Synod and Metropolitan Hilarion (the

"September 3 letter"). The September 3 letter was disseminated to all thirteen

members of the Synod and forwarded to other members of ROCOR, including

parishes, churches, monasteries, and other institutions, as well as online media

outlets. It raised concerns about purportedly irregular aspects of Belya's

"confirmation by [ROCOR] . . . as Bishop of Miami." Id. at 95. The alleged

irregularities related to the December 10, early January, and January 11 letters.

First, the September 3 letter asserted that even though the December

10 and January 11 letters appeared to have been signed and stamped with his

seal, Metropolitan Hilarion "knew nothing about the written [letters] directed to

Moscow." Id. (emphasis omitted). The September 3 letter further alleged that "as

stated by His Eminence [Metropolitan Hilarion]," the letters "were drawn up in

an irregular manner." Id. (emphasis omitted). It mentioned the absence of an

"appropriate citation" from the Synod's decision and the lack of a biography of

2
All signees of the letter are defendants-appellants in this case. The signees were
Nicholas Olkhovskiy, Victor Potapov, Serge Lukianov, David Straut, Alexandre
Antchoutine, George Temidis, and Mark Mancuso. Defendant-appellant Boris
Dmitrieff also participated in drafting the letter.

8
those elected. Id. at 95-96. Second, the September 3 letter stated that the early

January letter "raises doubts as well," specifically because the early January letter

was not printed on Archbishop Gavriil's "official letterhead." Id. at 96 (emphasis

omitted).

The September 3 letter requested that, considering the allegations,

Belya be suspended from clerical functions and barred from election candidacy.

That same day, Metropolitan Hilarion issued an order to Belya suspending him

from his position and responsibilities. Soon after, on September 16, 2019,

Metropolitan Hilarion issued a public decree suspending Belya pending a formal

investigation recommended in the September 3 letter. The decree also prohibited

members of Belya's parish from communicating with him.

On September 16, 2019, a clergy member3 posted about the dispute

over Belya's confirmation on the social media site of his church. The post read:

Alleged ROCOR episcopal nominee Fr. Alexander
Belya, already confirmed by the ROC Synod, had not
been elected by the ROCOR Synod and a letter
informing about [sic] his nomination sent to Moscow
was a forgery. The priest in question was suspended,
internal investigation was started.

3
The clergy member, Serafim Gan, is also a defendant-appellant in this case.

9
Id. at 98. Various religious news outlets and publications also publicly circulated

news of the controversy. Orthodox News, for example, reposted the statement.

Helleniscope, another Orthodox Christian publication, wrote:

This past summer, [Belya] also forged a letter from His
Eminence Metropolitan Hilarion (Kapral), the First
Hierarch of ROCOR, attempting to get himself
confirmed by the Holy Synod of the Moscow
Patriarchate as a bishop-elect for ROCOR in America.

Id.

Following the controversy, Belya left ROCOR and now serves as a

priest of the Greek Orthodox Church.

B. The Proceedings Below

On August 18, 2020, Belya commenced this lawsuit against

Defendants, alleging claims for defamation, defamation per se, and defamation

by innuendo. On December 8, 2020, Defendants filed a letter brief seeking

permission to file a motion to dismiss for lack of jurisdiction, as well as for failure

to state a claim, and requesting a conference. The district court denied

Defendants' request for a conference but construed Defendants' letter brief as a

motion to dismiss. It directed Belya to respond with a letter brief and proposed

amended complaint. Belya did so on January 14, 2021.

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 On May 19, 2021, the district court denied Defendants' motion to

dismiss and ordered Belya to file the amended complaint. The district court

found jurisdiction because it concluded that the church autonomy principles

cited by Defendants did not bar application of neutral principles of law, and

Belya's case could be resolved by such neutral principles.

On May 20, 2021, Belya filed the Amended Complaint. On June 16,

2021, Defendants filed a Rule 59(e) motion for reconsideration. On June 25, 2021,

Defendants moved for certification under 28 U.S.C. § 1292(b) for interlocutory

appeal of the district court's order denying their motion to dismiss. The district

court denied both motions on July 6, 2021. First, the district court denied the

motion for reconsideration as untimely under Local Rule 6.3. Second, it denied

the motion for interlocutory certification because Defendants' arguments

amounted to "disputes as to whether the factual situation presented fits into the

[church autonomy doctrine]" rather than a question suitable for interlocutory

appeal. Belya v. Kapral, No. 20-CV-6597, 2021 WL 2809604, at *2 (S.D.N.Y. July 6,

2021).

On July 21, 2021, Defendants filed a motion to limit initial discovery

to whether the church autonomy doctrine applied in this case or, in the

11
alternative, to stay proceedings. The district court denied that motion on July 27,

2021.

This appeal followed. Defendants appeal three of the district court's

orders: the May 19, 2021, denial of their motion to dismiss; the July 6, 2021,

denial of their motion for reconsideration; and the July 27, 2021, denial of their

motion to limit discovery or stay proceedings. Also pending is a July 15, 2021,

motion by Belya in this Court to dismiss this appeal. On September 2, 2021, we

granted a temporary stay of the district court proceedings. The parties have

briefed both the motion to dismiss and the merits.

DISCUSSION

The threshold issue is whether we have appellate jurisdiction,

pursuant to the collateral order doctrine, over the district court's three

interlocutory orders denying Defendants' motions to dismiss, for

reconsideration, and to bifurcate discovery or otherwise stay proceedings. We

hold that we do not. Accordingly, we dismiss the appeal and do not reach the

merits.

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A. Applicable Law

Two doctrines are at issue in this case: the collateral order doctrine

and the church autonomy doctrine. 4

1. The Collateral Order Doctrine

Appellate jurisdiction typically arises either from a district court's

final judgment, 28 U.S.C. § 1291, or the district court's certification of an issue for

interlocutory appeal, 28 U.S.C. § 1292(b). A "narrow and selective" class of

orders, however, are appealable because they meet the requirements of the

collateral order doctrine. Will v. Hallock, 546 U.S. 345, 350 (2006). The collateral

order doctrine is a "practical rather than a technical construction" of § 1291.

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). It provides for:

[A]ppellate jurisdiction over a small class of "collateral"
rulings that do not terminate the litigation in the court
below but are nonetheless sufficiently "final" and
distinct from the merits to be appealable without
waiting for a final judgment to be entered.

4
We use the term "church autonomy doctrine" to refer generally to the First
Amendment's prohibition of civil court interference in religious disputes. Defendants
also use the term "church autonomy doctrine," while Belya uses the term "ecclesiastical
abstention" to refer to the same concept. Both parties also refer to the "ministerial
exception." The ministerial exception, however, is one component of church autonomy.
See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020) ("[A]
component of this [church] autonomy is the selection of individuals who play certain
key roles. The 'ministerial exception' was based on this insight.").

13
Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 146 (2d Cir. 2013) (quoting

Cohen, 337 U.S. at 546).

The collateral order doctrine is limited to rulings that (1) are

"conclusive"; (2) "resolve important questions separate from the merits"; and

(3) "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).

These conditions are "stringent," as the narrow collateral appeal exception

"should stay that way and never be allowed to swallow the general rule that a

party is entitled to a single appeal" after "final judgment has been entered." Digit.

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (citation omitted). In

fact, the Supreme Court has admonished that "the class of collaterally appealable

orders must remain 'narrow and selective in its membership.'" Mohawk Indus.,

Inc. v. Carpenter, 558 U.S. 100, 113 (2009) (quoting Will, 546 U.S. at 350).5 In recent

5
The Supreme Court has rarely extended the collateral order doctrine to cover
new categories; the categories of orders falling under the collateral order doctrine
require only two hands to count. Such orders imposed an attachment of a vessel in
admiralty, Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684
(1950); imposed notice costs in a class action, Eisen v. Carlisle & Jacquelin, 417 U.S. 156
(1974); would have led to retrial, thus implicating double jeopardy, Abney v. United
States, 431 U.S. 651 (1977); would have allowed a case implicating the Speech and
Debate Clause to continue, Helstoski v. Meanor, 442 U.S. 500 (1979); found no absolute
immunity, Nixon v. Fitzgerald, 457 U.S. 731 (1982); found no qualified immunity, Mitchell
v. Forsyth, 472 U.S. 511 (1985); denied a state's claim to Eleventh Amendment immunity,

14
years, that call for caution has acquired special force because rulemaking, 6 rather

than court decision, has become "the preferred means for determining whether

and when prejudgment orders should be immediately appealable." Id.7 That

preference is in part due to how blunt of an instrument the collateral order

doctrine is; whether an order is appealable is "determined for the entire category

to which a claim belongs." Digit. Equip. Corp., 511 U.S. at 868.

As to the first prong, a "conclusive determination" means that the

appealed order must be a "complete, formal, and, in the trial court, final rejection

of" the issue. Abney v. United States, 431 U.S. 651, 659 (1977). As to the second

prong, an order resolves important questions independent from the merits when

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993); and denied a
right to avoid forced medication, Sell v. United States, 539 U.S. 166 (2003). In almost two
decades, the Supreme Court has expanded the collateral order doctrine in only one
instance, to address state sovereignty and the All Writs Act in Shoop v. Twyford, 596 U.S.
___, 142 S. Ct. 2037 (2022).
6
Congress has authorized the Supreme Court to promulgate rules "defin[ing]
when a ruling of a district court is final for the purposes of appeal under
[28 U.S.C. § 1291]." 28 U.S.C. § 2072(c). Congress further specified that § 2072 allows
the Supreme Court to prescribe rules "to provide for an appeal of an interlocutory
decision to the courts of appeals that is not otherwise provided for" by statute.
28 U.S.C. § 1292(e). The Supreme Court has not promulgated any rules that would
grant us appellate jurisdiction over the district court's orders in this case.
7
There has even been discussion of ending expansion of the collateral order
doctrine altogether. See, e.g., Mohawk Indus., 558 U.S. at 115 (Thomas, J., concurring in
part) ("[A]ny avenue for immediate appeal beyond [§ 1292(b), mandamus, and appeals
from contempt orders] must be left to the rulemaking process." (internal quotation
marks omitted)).

15
the questions involve a "claim[] of right separable from . . . rights asserted in the

action." Cohen, 337 U.S. at 546. As to the third prong, an order is "effectively

unreviewable" where "the order at issue involves an asserted right[,] the legal

and practical value of which 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 omitted). In contrast, 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 (internal quotation

marks omitted).

Here, Defendants essentially argue that the appealable category is

cases where "church autonomy defenses [are] at issue." Defs.-Appellants' Br. at

20.

2. The Church Autonomy Doctrine

The church autonomy doctrine provides that religious associations

have "independence in matters of faith and doctrine and in closely linked matters

of internal government." Our Lady of Guadalupe Sch., 140 S. Ct. at 2061. To allow

anyone "aggrieved by [a religious association's] decisions" to "appeal to the

secular courts and have [those decisions] reversed" subverts the rights of

16
religious associations to retain independence in matters of faith, doctrine, and

internal government. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 114-15 (1952).

But secular components of a dispute involving religious parties are

not insulated from judicial review; a court may use the "neutral principles of law"

approach. So long as the court relies "exclusively on objective, well-established

[legal] concepts," it may permissibly resolve a dispute even when parties are

religious bodies. Jones v. Wolf, 443 U.S. 595, 602-03 (1979) (establishing the

neutral principles of law approach in a dispute over church property).8 This is a

common-sense approach: When 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.

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.

Neither this Court nor the Supreme Court has found or even

suggested that district court orders like the ones Defendants appeal from fall

8
Most cases applying the "neutral principles of law" approach have resolved
disputes over church property. The approach, however, goes beyond solely church
property disputes. See Moon v. Moon, 833 F. App'x 876, 879 (2d Cir. 2020) (summary
order) (applying the neutral principles of law approach when an individual sought to
be recognized as the leader of a church organization).

17
within the collateral order doctrine. Nor can Defendants find support for this

principle in the decisions of our sister circuits.

B. Analysis

Here, Defendants appeal from the district court's denials of motions

to dismiss, for reconsideration, and to bifurcate discovery or otherwise stay

proceedings. We consider the three collateral order doctrine requirements in

turn; that is, whether the categories of orders (1) are "conclusive"; (2) "resolve

important questions separate from the merits"; and (3) "are effectively

unreviewable on appeal from the final judgment in the underlying action."

Swint, 514 U.S. at 42.

We hold that the district court's orders do not fall within the

collateral order doctrine.

1. Conclusiveness

None of the district court's three orders is "conclusive," as none

constitutes a "final rejection" of Defendants' asserted church autonomy defenses.

Not only is the case in a preliminary posture, but the district court also

recognized in its denial of Defendants' motion to dismiss that there would be

certain issues it "would not consider . . . under the doctrine of ecclesiastical

18
abstention." Belya v. Hilarion, No. 20-CV-6597, 2021 WL 1997547, *4 (S.D.N.Y.

May 19, 2021). At bottom, the orders are not conclusive because they do not bar

any defenses, they did not rule on the merits of the church autonomy defense,

and they permit Defendants to continue asserting the defense. It is possible that

at some stage Defendants' church autonomy defenses will require limiting the

scope of Belya's suit, or the extent of discovery, or even dismissal of the suit in its

entirety. But we cannot and do not prematurely jump into the fray.

We see clear parallels to a Seventh Circuit case where our sister

circuit also declined to find appellate jurisdiction under the collateral order

doctrine. When the diocese in that case sought appellate review of the district

court's order denying summary judgment for the diocese on a sex-discrimination

claim, the Seventh Circuit dismissed the appeal for lack of jurisdiction. Herx v.

Diocese of Fort Wayne-South Bend, Inc., 772 F.3d 1085, 1091-92 (7th Cir. 2014). The

Seventh Circuit reasoned it did not have appellate jurisdiction because the

district court's order "ha[d] not ordered a religious question submitted to the jury

for decision," and in fact the district court "promised to instruct the jury not to

weigh or evaluate the Church's doctrine." Id. at 1091; cf. McCarthy v. Fuller, 714

F.3d 971, 975 (7th Cir. 2013) (holding that an order was collaterally appealable

19
because it sent the religious question of whether party was a nun to the jury).

Here, there are also numerous steps before the finish line of the litigation. And

the district court has shown that it is aware that religious questions may arise --

and could instruct a potential jury to not weigh or evaluate those issues should

litigation progress to that stage. See Hilarion, 2021 WL 1997547, at *4 ("[T]he

[district court] will not pass judgment on the internal policies and or

determinations of [ROCOR], nor would it be able to under the doctrine of

ecclesiastical abstention.").

Even though the Supreme Court has "generally denied review of

pretrial discovery orders" under the collateral order doctrine, Mohawk Indus., 558

U.S. at 108 (internal quotation marks omitted), Defendants argue that putting

"the Church through the discovery that will be necessary to resolve [Belya's]

claims will itself violate the [First Amendment]." Defs.-Appellants' Br. at 30

(emphasis added). At essence, their 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."

But this claim runs afoul of not only the Supreme Court's general

disinclination but also our explicit precedent. We have said that "the finality

20
requirement cannot be employed to obtain interlocutory review of discovery

orders." Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163

(2d Cir. 1992) (quoting Xerox Corp. v. SCM Corp., 534 F.2d 1031, 1031-32 (2d Cir.

1976) (per curiam)). And beyond that general restriction, the church autonomy

doctrine at most protects against discovery that would intrude into the protected

area of the church -- it does not provide religious organizations with blanket

protection from discovery. It therefore does not constitute a "final rejection" of

Defendants' church autonomy rights for discovery to proceed into secular

components of Belya's claims under neutral defamation laws. If a discovery

request targets non-secular components, a religious association may continue to

raise a church autonomy defense with the district court.

In their argument to the contrary, Defendants point primarily to a

decision of the Fifth Circuit, Whole Woman's Health v. Smith, 896 F.3d 362 (5th Cir.

2018). They claim that "the Fifth Circuit accepted a collateral order appeal to

prevent [a church] from having to turn over internal documents." Defs.-

Appellants' Br. at 31.

Defendants misunderstand the Fifth Circuit's law. Whole Woman's

Health permitted collateral appeal of religious questions only when a party

21
sought discovery from a third party and the appeal related "to the predicament

of third parties." Whole Woman's Health, 896 F.3d at 367-68 (asserting that order

falls within collateral order doctrine because, in part, third-party witness

appealing "cannot benefit directly from" any post-final judgment relief).

Additionally, in a later case, the Fifth Circuit unequivocally pushed back against

applying church autonomy defenses when the "conclusion was premature" and

"many of the relevant facts have yet to be developed." McRaney v. N. Am. Mission

Bd. of the S. Baptist Convention, Inc., 966 F.3d 346, 347, 349 (5th Cir. 2020)

(reversing district court's order dismissing case because district court incorrectly

"found that it would need to resolve ecclesiastical questions in order to resolve

[plaintiff's] claims"), cert. denied, 141 S. Ct. 2852 (2021). Here, there is no third

party who may be harmed by discovery, and there are many relevant facts that

have yet to be developed.

In all, the district court's orders lack the conclusiveness required for

appellate jurisdiction under the collateral order doctrine.

2. Questions Separate from the Merits

Likewise, we conclude that the district court's orders do not involve

a claim of right separable from the merits of the action. While it is possible that,

22
in some circumstances, the church autonomy doctrine can present questions

separable from the merits of a defamation claim, at this pre-discovery juncture

we cannot say that is the case here. Cf. Tucker v. Faith Bible Chapel Int'l, 36 F.4th

1021, 1036 (10th Cir. 2022) (holding that, for "decisions denying a religious

employer summary judgment on the 'ministerial exception,'" the "issue is separate

from the merits of an employee's discrimination claims." (emphasis added)).

Indeed, one of Defendants' principal defenses to Belya's defamation claim is the

church autonomy doctrine; they argue that Belya's claims interfere with, for

example, church discipline and autonomy by impacting ROCOR's ability to

select, supervise, and discipline its ministers. For now, it appears that the case

can be litigated with neutral principles of law. See Jones, 443 U.S. at 602-03. In

the end, however, further proceedings may uncover that the merits do turn on

the church autonomy doctrine. Again, it is too soon to say at this point.

3. Effectively Unreviewable on Appeal

Nor would the value of Defendants' rights be "destroyed if [they]

were not vindicated before trial." Lauro Lines, s.r.l., 490 U.S. at 498-99. The

church autonomy doctrine provides religious associations neither an immunity

from discovery nor an immunity from trial on secular matters. Instead, as the

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Seventh Circuit also recognized, the First Amendment serves more as "an

ordinary defense to liability." Herx, 772 F.3d at 1090.

Other precedent also emphasizes that the church autonomy doctrine

is a defense and not a jurisdictional bar from suit. See Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 n.4 (2012) ("[T]he

[ministerial] exception operates as an affirmative defense to an otherwise

cognizable claim, not a jurisdictional bar.");9 cf. Tucker, 36 F.4th at 1025 ("The

Supreme Court has made clear that the 'ministerial exception' is an affirmative

defense to employment discrimination claims, rather than a jurisdictional

limitation on the authority of courts to hear such claims.").10 A recent Supreme

Court denial of certiorari clearly suggests that the church autonomy doctrine

does not provide immunity from discovery or trial. See Gordon Coll. v. DeWeese-

Boyd, 142 S. Ct. 952 (2022) (denying certiorari); see also Tucker, 36 F.4th at 1036-47

(dismissing an interlocutory appeal for lack of jurisdiction and rejecting the

argument that the ministerial exception "immunizes a religious employer from

9
Hosanna-Tabor focused on the ministerial exception. As discussed previously,
however, the ministerial exception is one component of church autonomy. See Our Lady
of Guadalupe Sch., 140 S. Ct. at 2060.
10
The Tenth Circuit in Tucker acknowledged that the ministerial exception was one
part of the "broader church autonomy doctrine" and explained that its analysis was
constrained to the "ministerial exception." 36 F.4th at 1028.

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suit on employment discrimination claims"). In his concurrence to the denial of

certiorari, Justice Samuel Alito emphasized that the "interlocutory posture" of the

case would "complicate" the Court's review, and that nothing "would preclude

[defendant] from . . . seeking review in [the] Court when the decision is actually

final." Gordon Coll., 142 S. Ct. at 955 (Alito, J., concurring) (internal quotation

marks omitted). Immediate appellate review is not the proper avenue for parties

seeking to assert a church autonomy defense.11

Defendants argue that the parallels between qualified immunity and

church autonomy mean church autonomy is also an "immunity from discovery

and trial" and thus falls within the collateral order doctrine. Defs.-Appellants' Br.

at 50. To that end, Defendants and amici offer a handful of cases comparing the

church autonomy defense with qualified immunity in § 1983 cases.12 But their

11
One proper avenue is, as discussed, appealing from the final judgment of the
district court. Another may be a writ of mandamus. See 28 U.S.C. § 1651(a). We have
previously granted such a writ to a religious association that did not meet the
requirements for a collateral appeal. See In re Roman Cath. Diocese of Albany, 745 F.3d 30,
35 (2d Cir. 2014) (per curiam). There, the religious association argued it would suffer
harm if discovery proceeded even though personal jurisdiction remained unclear. Id.
12
Although the context in which the comparison was used varies between cases,
each case does draw explicit parallels between qualified immunity and church
autonomy. The Seventh Circuit drew the comparison between church autonomy and
immunity when considering appellate jurisdiction. See McCarthy, 714 F.3d at 975
("[T]he district judge's ruling challenged by the plaintiffs [is] closely akin to a denial of
official immunity.") There are also some cases discussing motions to dismiss. In

25
analogy falls flat on a crucial point. It is true that a district court's order denying

qualified immunity is an immediately appealable collateral order -- but only "to

the extent that it turns on an issue of law." Mitchell v. Forsyth, 472 U.S. 511, 530

(1985). The presence of factual questions means we lack appellate jurisdiction to

review a denial of qualified immunity. See Franco v. Gunsalus, 972 F.3d 170, 174

(2d Cir. 2020).

The orders appealed here involve the existence of many genuinely

disputed fact questions. The Supreme Court has explained that:

[A]n interlocutory appeal concerning [triable issues of
fact] in a sense makes unwise use of appellate courts'
time, by forcing them to decide in the context of a less
developed record, an issue very similar to one they may
well decide anyway later, on a record that will permit a
better decision.

Johnson v. Jones, 515 U.S. 304, 317 (1995). The defamation claims asserted here

hinge on crucial questions of fact, and, as the district court recognized, there are

holding that the proper motion to dismiss for a church autonomy defense is under
Federal Rule of Civil Procedure 12(b)(6), the Tenth Circuit wrote that "the ministerial
exception, like the broader church autonomy doctrine, can be likened 'to a government
official's defense of qualified immunity.'" Skrzypczak v. Roman Cath. Diocese of Tulsa, 611
F.3d 1238, 1242 (10th Cir. 2010) (quoting Bryce v. Episcopal Church in the Diocese of Colo.,
289 F.3d 648, 652 (10th Cir. 2002)). In discussing the Tenth Circuit Bryce decision, the
Third Circuit added that the church autonomy doctrine is "akin to a government
official's defense of qualified immunity." Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d
Cir. 2006).

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numerous "disputes as to whether the factual situation presented fits into the

[church autonomy doctrine]." Belya, 2021 WL 2809604, at *2. Decidedly non-

ecclesiastical questions of fact remain. For example, did the purported

signatories actually sign the letters? Were the December 10 and January 11

letters stamped with Metropolitan Hilarion's seal? If so, who stamped them?

Was the early January letter on Archbishop Gavriil's letterhead? More broadly,

did Belya forge the letters at issue? These are outstanding secular fact questions

that are not properly before us -- and would not require a fact-finder to delve

into matters of faith and doctrine.

Accordingly, we hold that the district court's orders are not

reviewable on interlocutory appeal under the collateral order doctrine.

CONCLUSION

For the reasons set forth above, we lack jurisdiction to hear this

appeal. Accordingly, we GRANT Belya's July 15, 2021, motion to dismiss. The

appeal is DISMISSED, and the temporary stay granted September 2, 2021, is

VACATED.

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