Duquesne Univ. of the Holy Spirit v. Nat'l Labor Relations Bd.

• Decision Date: 17 September 2020
• Docket Number: No. 18-1063,C/w 18-1078,18-1063
• Citation: 975 F.3d 13 (Mem)
• Parties: DUQUESNE UNIVERSITY OF THE HOLY SPIRIT, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent United Steel, Paper and Forestry, Rubber, Manufacturing, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC, Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

975 F.3d 13 (Mem)

DUQUESNE UNIVERSITY OF THE HOLY SPIRIT, Petitioner

v. NATIONAL LABOR RELATIONS BOARD, RespondentUnited Steel, Paper and Forestry, Rubber, Manufacturing, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC, Intervenor

No. 18-1063

C/w 18-1078

United States Court of Appeals, District of Columbia Circuit.

Filed On: September 17, 2020

ORDER

Per Curiam

Upon consideration of the petition of intervenor for rehearing en banc, the responses thereto, and the absence of a request by any member of the court for a vote, it is

ORDERED that the petition be denied.

PILLARD, Circuit Judge, concurring in the denial of rehearing en banc:

I continue to believe that, under our precedent, this case was wrongly decided for the reasons stated in my dissent. The majority abrogates Pacific Lutheran University , 361 N.L.R.B. 1404 (2014), without even acknowledging the extraordinary deference that decision paid to religious schools. The whole point of the NLRB's Pacific Lutheran analysis was to studiously avoid examination of the faculty members’ actual religious duties by looking to whether a religious school itself "holds out" faculty members as playing an identified role in its religion. See Duquesne Univ. of the Holy Spirit v. NLRB , 947 F.3d 824, 843-44 (D.C. Cir. 2020) (Pillard, J., dissenting). Like the analysis this court fashioned in Carroll College, Inc. v. NLRB , 558 F.3d 568 (D.C. Cir. 2009), and University of Great Falls v. NLRB , 278 F.3d 1335 (D.C. Cir. 2002), the Board's approach in Pacific Lutheran stopped short of looking behind the openly stated positions of the schools regarding their own religious practice. In other words, the NLRB went out of its way to demonstrate the respect for religious schools that the First Amendment's Religion Clauses require. Yet the majority concludes that this doctrine "impermissibly intrudes into religious matters" as reason to hold Duquesne's adjuncts unprotected by the baseline workplace rights Congress afforded in the NLRA. Duquesne , 947 F.3d at 834.

If anything, Pacific Lutheran ’s "holding out" approach went beyond what the First Amendment requires. There is strong reason to believe that a school's public representations, taken alone, cannot justify carving out textually rootless exemptions from religiously neutral, generally applicable workplace laws. The panel majority assumes that "examining whether faculty members play religious or non-religious roles ... ‘would only risk infringing upon the guarantees of the First Amendment Religion Clauses.’ " Id. at 833 (quoting Carroll Coll. , 558 F.3d at 572 ). But the Supreme Court has repeatedly held in the parallel context of the "ministerial exception" to employment discrimination laws that the EEOC and the courts may look to employees’ actual religious roles—not just the titles or descriptions proffered, or "held out," by religious employers—without running afoul of the Religion Clauses. See Our Lady of Guadalupe Sch. v. Morrissey-Berru , ––– U.S. ––––, 140 S. Ct. 2049, 2063-65, 207 L.Ed.2d 870 (2020) ; Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 192-94, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) ; id. at 198, 132 S.Ct. 694 (Alito, J., concurring). The panel never explains why the Board's Pacific Lutheran analysis threatened religious exercise even though it was substantially more deferential to religious schools than the Supreme Court's ministerial exception.

The panel defends its holding as following ineluctably from NLRB v. Catholic Bishop of Chicago , 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), and this court's ensuing decisions in Great Falls and Carroll College . We are, of course, bound by Catholic Bishop , as we are by our own decisions unless and until we convene en banc to revisit them. But, for reasons that I have already explained, see Duquesne , 947 F.3d at 839-43, this case is materially different from each of those, and, fairly read, Pacific Lutheran honored all the precedents the majority invokes to the contrary. On its own terms, then, the majority gets it wrong. Id.

More fundamentally, our precedent extending Catholic Bishop is unmoored and increasingly untenable. We should take the opportunity in an appropriate case to reconsider it. En banc review in this case would give us an opportunity to reverse the majority's erroneous holding. But because no party asked us to revisit Great Falls and Carroll College —the cases on which the majority's holding builds—en banc review is not now the right vehicle to correct our wrong turn.

Looking ahead, two points bear emphasis. First , Catholic Bishop rests on an outmoded form of constitutional avoidance. Even as we respect it as binding precedent, we should not extend its reach beyond what the decision requires. To the extent that we have done so not only in this case, but in Carroll College and Great Falls , the decisions may need to be rethought. Cf. Allegheny Def. Project v. FERC , 964 F.3d 1, 17-18 (D.C. Cir. 2020) (en banc ) (holding departure from circuit precedent justified in part because it was "grounded in a mode of statutory construction that ha[d] been foreclosed by the Supreme Court"). Second , constitutional avoidance is inapplicable once the constitutional difficulty said to be avoided has been surmounted, as has occurred regarding the ostensible entanglement problem that motivated our adoption of Great Falls ’ "holding out" test in the first place.

The canon of constitutional avoidance is "a tool for choosing between competing plausible interpretations of a provision" that " ‘has no application’ in the interpretation of an unambiguous statute." McFadden v. United States , 576 U.S. 186, 197, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015) (quoting Warger v. Shauers , 574 U.S. 40, 50, 135 S.Ct. 521, 190 L.Ed.2d 422 (2014) ). The Supreme Court in Catholic Bishop identified no ambiguity in the NLRA's "very broad terms." 440 U.S. at 504, 99 S.Ct. 1313. Five years later, the Court described the breadth of the NLRA's definition of "employee" as "striking"—"subject only to certain specifically enumerated exceptions," none of which relate to religious schools. Sure-Tan, Inc v. NLRB , 467 U.S. 883, 891, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984). The Catholic Bishop Court, however, located ambiguity in the legislative history; it concluded that the absence of express congressional committee or floor discussion of collective bargaining in connection with "church-operated schools" justified constitutional avoidance, the text's plain scope notwithstanding. See 440 U.S. at 504-06, 99 S.Ct. 1313. That inverted method of statutory interpretation—bypassing clear text and looking to silence in the legislative history as ground for a judicial carveout—was abandoned a generation ago.

In fact, in a case decided just six years after Catholic Bishop , a unanimous Court got the analysis right: faced with a claim by a religious foundation that it was not subject to the Fair Labor Standards Act, the Court first held that the statute's "exceedingly broad" definition of "employees" extended to the foundation's associates and only then turned to address the constitutional question directly. Tony & Susan Alamo Found. v. Sec'y of Labor , 471 U.S. 290, 295-306, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). Today, "silence in the legislative history, ‘no matter how "clanging," ’ cannot defeat the better reading of the text and statutory context" or create ambiguity where there is none. Encino Motorcars, LLC v. Navarro , ––– U.S. ––––, 138 S. Ct. 1134, 1143, 200 L.Ed.2d 433 (2018) (quoting Sedima, S.P.R.L. v. Imrex Co. , 473 U.S. 479, 495 n.13, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) ). There is no statutory basis whatsoever on which to conclude that Congress intended to exempt parochial-school teachers from the NLRA. The doctrine of constitutional avoidance does not empower courts to drop ordinary principles of statutory interpretation to cut our own holes in enacted laws whenever a serious constitutional issue appears on the horizon.

To be sure, Catholic Bishop ’s holding is binding on this court whether or not we convene en banc to reconsider our own cases extending it. The Supreme Court has made clear that "[p]rinciples of stare decisis ... demand respect for precedent whether judicial methods of interpretation change or stay the same." CBOCS W., Inc. v. Humphries , 553 U.S. 442, 456, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008). And the Court's recent ministerial exception decisions suggest Catholic Bishop ’s core holding—that parochial high school teachers are exempt from NLRA coverage—remains on firm foundation substantively. In Hosanna-Tabor and Our Lady of Guadalupe , the Court required that school teachers who serve an important "role in conveying [a religious school's] message and carrying out its mission" be exempted from federal employment discrimination laws. Our Lady of Guadalupe , 140 S. Ct. at 2063 (quoting Hosanna-Tabor , 565 U.S. at 192, 132 S.Ct. 694 ). Much of the reasoning in these cases is consistent with the logic behind Catholic Bishop . Compare, e.g. , id. at 2055 (exempting decisions about "the selection and supervision of the teachers" responsible for "education and formation of students" in religious schools to avoid "undermin[ing] the independence of religious institutions in a way that the First Amendment does not tolerate"), with Catholic Bishop , 440 U.S. at 496, 99 S.Ct. 1313 (citing concern that Board jurisdiction would "impinge upon the freedom of church authorities to shape and direct teaching in accord with the requirements of their religion"). The Supreme Court's conclusion in Catholic Bishop would appear to stand even absent the screen of constitutional avoidance.

But respect for the binding force of Catholic Bishop does not demand the "holding out" approach we devised as further avoidance. We cannot kick the can down the road indefinitely, never actually deciding whether and how the NLRA's application to distinct...