                                       PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 11-1916
                     _____________

 JOSEPH ASKEW, Both individually and derivatively on
 behalf of the general assembly of the Church of the Lord
            Jesus Christ of the Apostolic Faith,
                         Appellant

                            v.

 THE TRUSTEES OF THE GENERAL ASSEMBLY OF
THE CHURCH OF THE LORD JESUS CHRIST OF THE
APOSTOLIC FAITH INC., A Pennsylvania Not-For-Profit
 Corporation; KENNETH SHELTON, Individually, and as
  President of the Board of Trustees of the Trustees of the
General Assembly of the Church of the Lord Jesus Christ of
  the Apostolic Faith, Inc.; JOHNCARLTON THOMAS;
JOHNNY RAY BROWN; ANTHONY LAMB; ALONZO
W. REAGAN; LEON BLIGEN; JAMES HENRY BROWN;
 ERIK SHELTON, All individually, and as Trustees of the
Trustees of the General Assembly of the Church of the Lord
     Jesus Christ of the Apostolic Faith, Inc.; DONNA
SHELTON; RUTH G. LIVINGSTON; MARY THOMAS,
     and all Individually, and as constructive Trustees
                       _____________
      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                    (No. 09-cv-00015)
       District Judge: Honorable Stewart R. Dalzell

      Submitted Pursuant to Third Circuit LAR 34.1(a)
                     January 27, 2012
                      ____________

 Before: AMBRO, CHAGARES, and HARDIMAN, Circuit
                    Judges.

              (Opinion Filed: June 28, 2012)

Willie Pollins, Esq.
Pollins Law Firm
1725 Spruce St.
Philadelphia, Pennsylvania 19103

Fincourt B. Shelton, Esq.
504 Main St.
Suite 100
Darby, Pennsylvania 19023
       Counsel for Appellant Joseph Askew

Danielle Banks, Esq.
Caitlin E. Oberst, Esq.
Stradley, Ronon, Stevens & Young LLP
2600 One Commerce Square
2005 Market St.
Philadelphia, Pennsylvania 19103

Michael K. Twersky, Esq.




                            2
Fox Rothschild LLP
2000 Market St.
20th Floor
Philadelphia, Pennsylvania 19103
       Counsel for Appellees The Trustees of the General
       Assembly of the Church of the Lord Jesus Christ of the
       Apostolic Faith, Inc.; Kenneth Shelton; JohnCarlton
       Thomas; Johnny Ray Brown; Anthony E. Lamb;
       Alonzo W. Reagan; Leon Bligen; James Henry Brown;
       Erik Shelton; Donna Shelton; Ruth G. Livingston; and
       Mary Thomas

                       ____________

                         OPINION
                       ____________


CHAGARES, Circuit Judge.

       The First Amendment to the United States Constitution
provides, in part, that “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof.” We address whether these Religion Clauses of the
First Amendment insulate from civil court review the
decision by a church leader to terminate an individual’s
membership in a church.

       The dispute stems from an internal schism in the
Church of the Lord Jesus Christ of the Apostolic Faith (“the
Church”). Appellant Joseph Askew associated with the
dissident faction of the Church polity, leading the Bishop and
leader of the majority faction, appellee Kenneth Shelton




                              3
(“Bishop Shelton”), to terminate his membership in the
Church. Asserting claims on behalf of himself as a church
member and derivatively on behalf of the Church, Askew
alleges that Bishop Shelton and officers of the affiliated
Board of Trustees misappropriated church assets and
breached their fiduciary duties to the Church.

       We conclude that the non-entanglement principle
embedded in the Religion Clauses shields Bishop Shelton’s
membership decisions from civil court review. Correctly
applying this principle, the District Court deferred to Bishop
Shelton’s declaration that he terminated Askew’s membership
in the Church. Because Askew’s nonmember status deprives
him of standing to assert claims alleging harm to the Church,
we will affirm the dismissal of the case.

                              I.

       The Church of the Lord Jesus Christ of the Apostolic
Faith was founded by Sherrod C. Johnson in 1919. In 1947,
Johnson and several church elders established The Trustees of
the General Assembly of the Church of the Lord Jesus Christ
of the Apostolic Faith, Inc. (“the Corporation”), a non-profit
corporation set up to hold and manage the real property and
assets of the Church in trust. Both the Church and the
Corporation are headquartered in Philadelphia, Pennsylvania.

       The Church, an unincorporated entity, is governed by
its Rules and Bylaws, last amended in 1961. The Bylaws
establish two officers of the Church: a General Overseer and
a General Secretary. The General Overseer (also known as
the Bishop) serves for life, while the General Secretary must
be nominated annually by the General Overseer and elected




                              4
by the General Assembly of the Church. In the event of the
death of the General Overseer, the General Secretary
temporarily assumes his duties until the General Assembly
meets to elect him or a successor as the new General
Overseer. The General Assembly, a body comprised of
members of the congregation, meets annually and votes on
church business and governance matters. The Bylaws vest
title to real and personal property of the Church in the
Corporation.

       The Corporation is governed by its Articles of
Incorporation. The Articles make the General Overseer the
President of the Corporation. They authorize the President to
nominate trustees to the Corporation, who in turn must be
elected annually by the General Assembly. They also restrict
membership in the Corporation to the President and Board of
Trustees.

       S. McDowell Shelton succeeded Johnson as General
Overseer in 1961. He died in 1991, prompting a crisis in
succession. Three men, including Kenneth Shelton and
Roddy Shelton, laid claim to the General Overseer position.
Roddy Shelton was the General Secretary at the time and thus
should have temporarily succeeded S. McDowell Shelton
under the Bylaws. But many members of the Church
disapproved of his leadership and preferred Kenneth Shelton.
The faction loyal to Kenneth Shelton used threats and force to
oust the faction loyal to Roddy Shelton from the Church in an
acrimonious meeting held in early 1992. Both men held
separate General Assemblies and were elected General
Overseer by their respective followers. In the aftermath of
the schism, the parties continued to battle their claim to
authority over the Church and ownership of church assets in




                              5
Pennsylvania courts. Over a decade ago, Pennsylvania courts
concluded that Kenneth Shelton was the rightful General
Overseer of the Church. Trustees of the General Assembly of
the Church of the Lord Jesus Christ of the Apostolic Faith,
Inc. v. Shelton, Nos. 92-1887, 94-0914, 94-3654, slip op. at 4
(Pa. Ct. Com. Pl. June 12, 2000), aff’d, Church of the Lord
Jesus Christ of Apostolic Faith, Inc. v. Shelton, 773 A.2d
1290 (Table) (Pa. Commw. Ct. Apr. 10, 2001).

       Askew was a member of the dissident faction loyal to
Roddy Shelton. Since 1992, he has attended Roddy Shelton’s
church and other churches affiliated with the dissident
faction. He does not accept Bishop Kenneth Shelton as the
General Overseer of the Church. On multiple occasions since
the schism, Bishop Shelton declared all followers of Roddy
Shelton nonmembers of the Church. In August 2009, Bishop
Shelton executed a sworn declaration stating that Askew and
all others loyal to Roddy Shelton were removed from the
Church in 1992 and have not been recognized as church
members since that time.

                             II.

       Askew initiated this suit in January 2009. Named as
defendants are Bishop Shelton and several trustees of the
Corporation. The Corporation is a nominal defendant. The
complaint alleges that Bishop Shelton and the trustees
misappropriated assets of the Corporation for their own
personal use at the expense of the Church and its members.
Askew also alleges that, since 1992, the Corporation’s
officers have not submitted annual financial statements of
assets and liabilities to the Commonwealth, as required by




                              6
Pennsylvania’s Nonprofit Corporation Law (“PNCL”), 15 Pa.
Cons. Stat. § 5101 et seq.

       The complaint asserts eight counts. Count 1 alleges
that the defendants breached their fiduciary duties to the
Church and its members. Count 2 alleges that the defendants
breached their fiduciary duties to the Corporation. Count 3
seeks a declaration that the Articles of Incorporation are
unlawful under the PNCL because they exclude Church
members from membership in the Corporation. Count 4
seeks an injunction ordering the defendants to disclose the
Corporation’s annual financial statements. Count 5 seeks
appointment of a custodian for the Corporation. Count 6
alleges unjust enrichment and seeks restitution of
misappropriated assets. Count 7 alleges civil conspiracy.
Count 8 seeks imposition of a constructive trust.

       Contending that Askew lacked standing to assert the
claims, the defendants moved to dismiss under Federal Rule
of Civil Procedure 12(b)(1). A Rule 12(b)(1) standing
challenge may attack the complaint facially or may attack the
factual basis for standing. Mortensen v. First Fed. Sav. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). As the
defendants had not answered and the parties had not engaged
in discovery, the first motion to dismiss was facial. The
District Court granted the motion in part and denied it in part.
It found that Askew had no standing to sue on behalf of the
Corporation under the PNCL and therefore dismissed counts
2, 4, and 5, all of which alleged harm to the Corporation.
Taking as true Askew’s allegation that he was a member of
the Church, the court denied the motion to dismiss as to
counts 1, 3, and 6, all of which asserted claims on behalf of
the Church. Because Askew’s standing to assert those claims




                               7
depended on his status as a member of the Church, however,
the court ordered the parties to engage in discovery on
Askew’s claim to membership.

       The defendants filed a renewed motion to dismiss after
a period of focused discovery. Again, they argued that
Askew lacked standing to pursue the claims. The District
Court treated this motion as a factual challenge to Askew’s
standing and therefore consulted depositions, affidavits, and
other pertinent evidence. See CNA v. United States, 535 F.3d
132, 145 (3d Cir. 2008) (explaining that in evaluating a
factual attack on subject matter jurisdiction, the District Court
may make factual findings based on material beyond the
pleadings); 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1350, at 159-60 (3d ed.
2004). Applying the non-entanglement principle embedded
in the Religion Clauses of the First Amendment, the District
Court accepted as binding Bishop Shelton’s August 2009
declaration that Askew is not a member of the Church.
Accordingly, it held that Askew lacked standing and
dismissed the remaining claims. 1 Askew timely appealed. 2



1
  The District Court dismissed counts 7 and 8 on the basis that
they depend on the viability of other claims. Askew does not
challenge the dismissal of counts 7 and 8 in this appeal.
2
 The District Court had jurisdiction under 28 U.S.C. § 1332.
We have jurisdiction under 28 U.S.C. § 1291. “Our review of
a District Court’s denial of Article III standing is plenary.”
Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 291 (3d
Cir. 2005).




                               8
                              III.

       Askew, the party seeking to invoke federal court
jurisdiction, shoulders the burden of establishing his standing
to sue. Common Cause of Pa. v. Pennsylvania, 558 F.3d 249,
257 (3d Cir. 2009). To do so, he must demonstrate that he
suffered a concrete and particularized injury-in-fact that is
“actual or imminent, not conjectural or hypothetical.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotation
marks omitted). That injury must be fairly traceable to the
actions of the defendants and likely to be redressed by a
favorable decision. Id. at 560-61.

        Misappropriation of church assets could have caused
Askew injury-in-fact, as an individual or derivatively, only if
he is a member of the Church. The core dispute, then, is
whether Askew is a church member. Askew contends that he
is a lifelong member of the Church and remains a member
today. The defendants respond that because the highest
authority in the Church declared Askew a nonmember, he is
not a member of the Church and has no standing to assert the
claims. The decision to terminate Askew’s membership, they
maintain, is uncontestable because it is a matter of
ecclesiastical doctrine not amenable to review by civil courts.

       The First Amendment “severely circumscribes” the
role that civil courts may play in resolving disputes touching
on matters of faith. Presbyterian Church in the U.S. v. Mary
Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S.
440, 449 (1969). Civil courts encroach on the autonomy of
religious institutions when they inquire into ecclesiastical law
and governance. The non-entanglement principle, anchored
in First Amendment values, thus “requires that civil courts




                               9
defer to the resolution of issues of religious doctrine or polity
by the highest court of a hierarchical church organization.”
Jones v. Wolf, 443 U.S. 595, 602 (1979); see also Kedroff v.
Saint Nicholas Cathedral of Russian Orthodox Church in N.
Am., 344 U.S. 94, 115-17 (1952). In so doing, civil courts
accept decisions of the highest religious decision-maker as
binding fact, so long as those decisions are not tainted by
fraud or collusion.       Serbian E. Orthodox Diocese v.
Milivojevich, 426 U.S. 696, 713 (1976); Gonzalez v. Roman
Catholic Archbishop of Manila, 280 U.S. 1, 16 (1929).

        These bedrock principles, recently reaffirmed by the
Supreme Court, derive from both Religion Clauses of the
First Amendment. Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC, 132 S. Ct. 694, 704-06 (2012).
Civil court review of doctrinal matters inhibits free exercise
of religion and usurps the power of religious authorities to
resolve intrachurch matters purely of ecclesiastical concern.
Id. at 706. And it improperly cloaks the State with authority
to “intervene on behalf of groups espousing particular
doctrinal beliefs.” Milivojevich, 426 U.S. at 709; see also
Hosanna-Tabor, 132 S. Ct. at 706. The Religion Clauses
guard against such “government interference with . . . internal
church decision[s] that affect[] the faith and mission of the
church itself.” Hosanna-Tabor, 132 S. Ct. at 707.

        Still, the First Amendment does not remove from the
purview of civil courts all controversies involving religious
institutions. Jones, 443 U.S. at 602-03. When a church
dispute turns on a question devoid of doctrinal implications,
civil courts may employ neutral principles of law to
adjudicate the controversy. Id.; Presbyterian Church, 393
U.S. at 449; Scotts African Union Methodist Protestant




                               10
Church v. Conference of African Union First Colored
Methodist Protestant Church, 98 F.3d 78, 88-90 (3d Cir.
1996). Pennsylvania courts opt to apply neutral civil law
principles whenever possible to resolve such cases. See, e.g.,
Presbytery of Beaver-Butler of the United Presbyterian
Church in the U.S. v. Middlesex Presbyterian Church, 489
A.2d 1317, 1320-23 (Pa. 1985). Indeed, they did so over a
decade ago in their ruling that Bishop Shelton occupies the
office of General Overseer. See Trustees of the General
Assembly, Nos. 92-1887, 94-0914, 94-3654, slip op. at 4. 3

       Whether the controversy over Askew’s membership in
the Church is an ecclesiastical question or whether it may be
resolved by reference to neutral principles of law is a matter
of sharp disagreement between the parties. The record
indicates that, in this Church, the question of who is and is
not a member depends in part on religious practice. Article
XX of the Church Bylaws provides:



3
  Askew invites us to reconsider the Pennsylvania court’s
conclusion, reached by applying neutral principles of law,
that Kenneth Shelton is the General Overseer of the Church.
Askew Letter of Jan. 20, 2012, at 2-5. As Askew did not
raise the argument in the District Court, it is waived. See In
re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir.
2009) (“Absent exceptional circumstances, this Court will not
consider issues raised for the first time on appeal.” (quotation
marks and citation omitted)). We have no warrant to question
the holding of the Pennsylvania court on a matter that was not
raised until after all briefings had been submitted and that in
any event may be barred by estoppel principles.




                              11
      Qualifications and membership shall be judged
      by the following: (a) Tithe paying[;] (b) Life
      being consistent with the doctrine of The
      Church of the Lord Jesus Christ of the
      Apostolic standard[; and] (c) Regular
      attendance except when this is for the reason of
      long sickness or physical impossibilities; at
      such time the member is required to remain in
      contact with the General Overseer at regular
      intervals to explain reason of absence; as well
      as to one in charge of local assembly.

Appendix 59-60.         The second requirement makes
membership in the Church an ecclesiastical matter, for it
conditions an individual’s membership on living in
conformity with “the doctrine of [t]he Church.” Id. We
know of no neutral principle of law that could assist in
evaluating whether a member lives his or her life in a manner
consistent with church doctrine.

       The Bylaws also delegate to the General Overseer the
power to determine membership status. They contemplate
two pathways for excommunication. If a member “has been
duly accused of an offense punishable by The Church, his
status in The Church shall be determined solely by the
General Overseer, until trial.” Id. at 53. Alternatively, when
the General Overseer deems “it necessary for the good of the
Church,” he may terminate an individual’s membership
“without accusation or trial.” Id.

      The General Overseer’s authority to excommunicate
members falls squarely within the realm of matters insulated
from civil court review. As codified in its central governance




                             12
document, the Church entrusts the General Overseer with
power to decide when it is in the best interest of the
congregation to terminate an individual’s membership.
Determining when excommunication is “necessary for the
good of the Church” undoubtedly involves a complex
balancing of spiritual and pragmatic considerations, all
properly left to the highest church authority, not civil courts.
We are not competent to upset judgments made by the
General Overseer in this doctrinally sensitive area, for there
are no neutral principles of law that shed light on the
membership composition necessary for the good of the
Church. See Md. & Va. Eldership of the Churches of God v.
Church of God at Sharpsburg, Inc., 396 U.S. 367, 370 (1970)
(Brennan, J., concurring) (providing examples of neutral
principles of law that may be used to adjudicate church
property disputes without jeopardizing First Amendment
values); Scotts African Union, 98 F.3d at 94-95 (emphasizing
the fact-intensive inquiry involved in deciding if a dispute is
one of church governance and doctrine or one that may be
resolved by applying neutral principles of law).

       Bishop Shelton, the General Overseer and the highest
judicatory tribunal in the Church, testified that he declared
Askew a nonmember on multiple occasions since 1992.
Askew was, Bishop Shelton stated, a follower of Roddy
Shelton. And, ostensibly for the good of the Church, he
terminated the membership of all churchgoers loyal to Roddy
Shelton in the wake of the schism. Consistent with the non-
entanglement principle, we accept his pronouncement as
conclusive. Any other approach would embroil this Court in
a two-decade-long intra-Church battle central to its mission
and spiritual identity.




                              13
        Askew urges us to probe Bishop Shelton’s decision
because, he says, the Bishop did not comply with the
procedures for excommunication prescribed by the Bylaws.
In essence, he objects that the decision is arbitrary as applied
to him. Controlling precedent forecloses his argument, for
the Supreme Court held in 1976 that the First Amendment
does not permit civil court review of the arbitrariness of
ecclesiastical actions. Milivojevich, 426 U.S. at 713-20;
accord Hosanna-Tabor, 132 S. Ct. at 705. Review of a
church’s compliance with its own rules and regulations in
arriving at a decision, reasoned the Court, “would undermine
the general rule that religious controversies are not the proper
subject of civil court inquiry.” Milivojevich, 426 U.S. at 713.
This case well illustrates the point. We could not evaluate
whether Askew was entitled to an accusation and trial or
whether his termination was “necessary for the good of the
Church” without delving into church teachings and making
value judgments about what, in fact, is necessary for the good
of the Church. The First Amendment shields religious
institutions from this sort of intrusive inquiry irrespective of
their compliance with internal excommunication procedures.

       Askew also argues that Bishop Shelton’s August 2009
declaration terminating his membership was a post hoc
decision made for the impermissible purpose of divesting the
District Court of jurisdiction. We disagree. A doctrinally
grounded decision made during litigation to insulate
questionable church actions from civil court review may
indeed raise an inference of fraud or bad faith. See id.
(explaining that the fraud or bad faith exception may apply
“when church tribunals act in bad faith for secular purposes”).
Under those circumstances, the integrity of the judicial
system may outweigh First Amendment concerns such that a




                              14
civil court may inquire into the decision. But we find no
basis for the inference here. Since 1992, Bishop Shelton has
repeatedly declared all persons loyal to Roddy Shelton
nonmembers of the Church. Askew admittedly associated
with the minority faction led by Roddy Shelton. His
membership in that class of individuals undercuts any
inference that Bishop Shelton first declared him a nonmember
in 2009 in order to thwart review by the District Court.

       We therefore hold that Askew has no standing to assert
claims alleging harm to the Church. Dismissal of counts 1, 3,
and 6 — all claims asserted in Askew’s capacity as a member
of the Church — was proper.

                             IV.

        The District Court dismissed counts 2, 4, and 5
because they allege harm to the Corporation, but Askew is not
and has never been a member of the Corporation. The PNCL
limits standing to assert derivative claims to members of non-
profit corporations. 15 Pa. Cons. Stat. § 5782. Askew does
not contest the District Court’s finding that he was not a
member of the Corporation, but rather maintains that a
separate provision of the PNCL, 15 Pa. Cons. Stat. § 5793(a),
extends to him standing to sue by virtue of his membership in
the Church. Because Askew is not a member of the Church,
his argument fails. The District Court correctly held that
Askew lacks standing under the PNCL to assert claims
alleging harm to the Corporation.




                             15
                             V.

       For the reasons stated, we will affirm the judgment of
the District Court.




                             16
