Legal Commentary

A decision from the Tenth Circuit last week, dealing with the ministerial exemption to employment discrimination laws, got the jurisdictionality question exactly right, holding that it determines "whether the First Amendment bars [that plaintiff's] claims," which is a merits question and not a question of judicial subject matter jurisdiction. (H/T: Christopher Lund, from a debate on the Law and Religion listserv). Unfortunately, it and the parties seem to have botched an issue of appellate procedure (although with no harm or effect on the outcome).

Sued by a former employee of violating Title VII, the ADEA, and the Equal Pay Act, the Diocese raised the ministerial exemption on a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The district court converted that to a 12(b)(6), then to a motion for summary judgment when it considered submitted affidavits beyond the pleadings. The district court granted summary judgment on the federal claims and declined supplemental jurisdiction on state claims. When the plaintiff appealed the summary judgment ruling, the Diocese filed a cross-appeal, insisting that the district court erred by converting the motion from a jurisdictional one to a merits one.

Relying on prior circuit precedent and a decision from the Third Circuit, the court held that the ministerial exemption from Title VII, like the broader "Church Autonomy Doctrine," serves as a "barrier to the success of the plaintiff's claims," but does not affect the court's adjudicative authority. The court likened the ministerial exemption to executive qualified immunity from constitutional claims, which similarly defeats claims on the merits without depriving the court of jurisdiction to hear and resolve the case. The court's decision and explanation are spot-on.

The discussion on the listserv (which Chris has forwarded to me) has turned to whether the ministerial exemption (and church autonomy generally) should be characterized as "jurisdictional." My argument is that it is jurisdictional, but not in the sense that many people use the term. The exemption, properly understood, does not limit the jurisdiction of the courts to adjudicate (to hear and resolve the case). Instead, it limits the jurisdiction (the authority) of Congress to legislate--what we can call prescriptive or legislative jurisdiction/authority. The ministerial exemption is a First Amendment doctrine and any attempt by Congress to legislate in derogation of the exemption would be unconstitutional and any such law would be invalid. That is, the First Amendment has imposed a limit on Congress' prescriptive authority to create legal rules that regulate or prohibit certain employment by the Church as to certain employees. Thus, the plaintiff's attempt to sue the Diocese under federal law fails because there is no valid enforceable legal rule to be enforced, because the First Amendment limits the scope of existent federal law. That failure is on the merits; federal law does not prohibit the conduct of which the Church is accused by this ministerial employee. But this does not affect the court's authority to hear and resolve a case that, although unsuccessful, plainly arises under federal law (in the sense of asserting a right existing because of federal law). This conflation of adjudicative and prescriptive jurisdiction is at the heart of the current circuit split over the ministerial exemption. And it is at the heart of much jurisdiction/merits confusion.

On the other hand, the Tenth Circuit seems to have made a mistake of appellate procedure. The court allowed the Diocese to cross-appeal to argue that the ministerial exemption is properly understood as a limit on the district court's adjudicative jurisdiction and that the 12(b)(1) should have been granted. But I am not sure that a cross-appeal was proper or necessary here. The general rule is that a party only can appeal a judgment or order if it is "aggrieved" by a judgment that is adverse to its interests. Winning on grounds different than the ones urged in the district court does not provide the basis for a cross-appeal. A prevailing party can argue any grounds that appear in the record in support of the favorable judgment, without a cross-appeal.

Moreover, no cross-appeal is required (or permitted) when a district court has resolved the case in the defendant's favor on the merits but the defendant wants to urge a jurisdictional dismissal. Because subject matter jurisdiction can be raised at any time, the prevailing party can argue that as a different basis for affirming the judgment. That clearly is the case here--the district court rejected the claims on the merits, while the Diocese wanted to prevail on jurisdictional grounds. No cross-appeal should have been necessary. This case is somewhat unusual because the same argument--ministerial exemption--is being used both to convert the lower-court judgment and to defend it. But that should not make a difference. The point is that the Diocese was arguing to an appellate court that the trial court reached the merits in a case in which it (according to the Diocese) lacked subject matter jurisdiction. No cross-appeal should be required.

Interesting, a cross-appeal is required in the converse situation--where the district court dismisses a case without prejudice on jurisdictional grounds and the prevailing defendant wants to convert that dismissal to one on the merits, which would be with prejudice and would have res judicata effect. Such an argument is deemed to change or modify the nature of the judgment, which requires cross-appeal. Of course, had the Diocese prevailed on its cross-claim here, it would have converted a judgment having res judicata effect into one not having res judicata effect. As the case stood, the district court's ruling precludes the plaintiff from refiling her federal claims. Had the dismissal of the federal claims been on jurisdictional grounds, on the other hand, the plaintiff could have refiled those claims in state court. In other words, the Diocese's argument, while allowed on cross-appeal, actually would have put it in a less-advantageous position in this case.

The with-prejudice/without-prejudice line is an overlooked aspect of jurisdiction/merits confusion. By trying to characterize lots of issues under federal statutes as jurisdictional, defendants actually set themselves up for having to relitigate these claims in state court (where there is concurrent jurisdiction). Here, because the court treated the ministerial exemption as a merits issue, the Diocese does not have to worry about any of the plaintiff's federal claims again. You would think that is a benefit the Diocese would not have wanted to give away.