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Friday, January 13, 2012

A narrow point on Hosanna-Tabor

I probably should have posted this a couple days ago, but I obviously was happy with footnote 4 (always the most important footnote) of Hosanna-Tabor, in which the Court noted the circuit split on the jurisdictionality of the ministerial exemption, then said the following:

We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear [the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.

Needless to say, I feel vindicated, since I have been railing about this issue at you poor readers for about two years now (and it still would have been nice to be cited). Unforunately, I have been unable to fully enjoy my rightness because I have spent the last two days scrambling to revise my article on the merits nature of the ministerial exemption, which is due out early next month. I now have to explain why the Court was right (analysis the Chief did not bother with), as well as why the Court took such a quick-and-loose approach to the issue. I'll have more to say when the piece finally is published. Meanwhile, hopefully it will sway those who remain unconvinced.

Posted by Howard Wasserman on January 13, 2012 at 02:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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As I read that, saying the claim is "barred" means the claim is defeated by the First Amendment or the claim cannot succeed because of the First Amendment. The second clause means that, if the exemption applies, the claim is defeated and if the exemption doesn't apply, we proceed to the rest of the ADA analysis (did the conduct violate the ADA). The word "barred" is too-often assumed to mean a jurisdiction defeat, although that need not be the case.

By the way, none of this can be read as justifying or explaining the conclusion. The footnote just repeats the merits conclusion 3 different times.

Posted by: Howard Wasserman | Jan 14, 2012 10:24:09 PM

As I mentioned to you by e-mail, I'm perplexed by the last sentence of this paragraph.

"District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception."

The court presents this sentence as if it were explaining the reasoning behind its holding that the bar is merits-based rather than jurisdictional. But the first clause explains nothing; it simply restates that holding. And the second clause seems to imply that the ministerial exception must be merits-based because the district court decides whether it applies or not. This in turn seems to imply that if the exception were jurisdictional the court couldn't evaluate its applicability.

That implication, if it's intended, is clearly wrong: a court can rule on a motion to dismiss regardless of whether it's merits-based or jurisdictional. After all, a court always has jurisdiction to determine whether it has jurisdiction.

Am I missing something? Can someone shed light on what this last clause -- or this last sentence in general -- is doing here? Is it possible that Roberts is mixed up about the rationale for this holding? Or is this sentence just meant to be clarifying the holding, rather than justifying it?

I'm looking forward to dropping a Hosanna-Tabor footnote of my own into my Law Review Note, which argues that the Steel Co/Arbaugh line of cases precludes the application of Iqbal in the 12(b)(1) context. (Will be grateful for feedback from any and all in a couple of days, when the draft is presentable.)

Howard, I'm also looking forward to your piece. I just reread the Kalscheur piece arguing that the bar should be jurisdictional, and found it compelling in several ways.

Jim von der Heydt, 2L

Posted by: Jim von der Heydt | Jan 14, 2012 11:36:30 AM

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