Lutheran Church-Missouri Synod v. F.C.C.

• Decision Date: 15 September 1998
• Docket Number: CHURCH-MISSOURI,No. 97-1116,97-1116
• Citation: 154 F.3d 487
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1865, 74 Empl. Prac. Dec. P 45,483, 332 U.S.App.D.C. 165 LUTHERANSYNOD, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Missouri State Conference of Branches of the NAACP, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 487

154 F.3d 487

77 Fair Empl.Prac.Cas. (BNA) 1865,

74 Empl. Prac. Dec. P 45,483, 332 U.S.App.D.C. 165

LUTHERAN CHURCH-MISSOURI SYNOD, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Missouri State Conference of Branches of the NAACP, et al Intervenors.

No. 97-1116.

United States Court of Appeals District of Columbia Circuit.

Sept. 15, 1998.

On Petition for Rehearing.

Before: SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.

SILBERMAN, Circuit Judge:

The Federal Communications Commission (FCC) and the government have filed a joint petition for rehearing. Before the panel the government appeared only as an amicus (with a somewhat different position than the Commission). We do not, therefore, think the government can be regarded as a party, so we treat the petition as that of the Commission. The Commission offers three arguments to support its contention that our opinion unnecessarily and erroneously decided the Church's equal protection claim: that we should have granted its motion to remand without deciding the case; that if we had proceeded we were obliged to decide the Religious Freedom Restoration Act (RFRA) or free exercise claim before reaching the Church's equal protection argument; and, finally, that we should not have applied strict scrutiny as the standard by which the Commission's Equal Employment Opportunity (EEO) rules should be judged under the Equal Protection Clause. We take up the arguments in that order.

1. The Remand Issue

We denied the FCC's motion to remand, presented seven weeks after oral argument. Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 349 (D.C.Cir.1998). The motion was based on a "policy statement" in which the Commission purported to overrule its prior King's Garden decision. See Streamlining Broadcast EEO Rule and Policies, 13 F.C.C.R. 6322, 6323-24 (1998). That decision, it will be recalled, permitted religious broadcasters to prefer employees of that religion only if the employees were involved directly in broadcasting. See King's Garden, Inc., 38 F.C.C.2d 339 (1972), aff'd sub. nom. King's Garden, Inc. v. FCC, 498 F.2d 51 (D.C.Cir.1974).

The Church had attacked King's Garden as inconsistent with both RFRA and the Free Exercise Clause, and the Commission's counsel claimed that the majority of Commissioners had agreed to apply that policy statement to this case retroactively if we would remand. We rejected this "last second" motion in part on grounds that a "policy statement," as Commissioner Furchtgott-Roth pointed out, does not bind the Commission to a result in any particular case. See Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33, 38 (D.C.Cir.1974). The Commission insists we misunderstood its action; the policy statement was not "merely " a policy statement, it was also an order that grew out of a rulemaking that did bind the Commission. We confess that we simply have no idea as to in what administrative law category the Commission policy statement "order" falls. It could not be a rule because no notice and comment procedure was employed, and we are aware of no proposition of administrative law that allows the assurances of individual Commissioners--even a majority--to transform a prospective enforcement policy into a retroactive rule of decision. In any event, the Commission concedes that the statement did not itself apply to this case. Instead, the Commission argues we should have remanded based on the majority of Commissioners' expressed intent to apply the new policy retroactively to this adjudicatory proceeding (notwithstanding that a petition for reconsideration directed to the policy statement has been filed before the Commission ¹), because we could thereby have avoided deciding a constitutional question. We rather doubt that this court should ever grant an agency's motion to remand after oral argument over the opposition of a petitioner. The same consideration that prevents the government from voluntarily acquiescing in a panel decision and thereafter seeking vacatur while a petition for reconsideration is pending seems applicable to such a maneuver. See Mahoney v. Babbitt, 113 F.3d 219 (D.C.Cir.1997). To be sure, as our colleague Judge Tatel points out, we have previously granted an FCC motion to remand in a case raising an equal protection challenge. See Steele v. FCC, 770 F.2d 1192 (D.C.Cir.1985), vacated, Steele v. FCC, No. 84-1176 (D.C.Cir. Oct. 31, 1985) (en banc) (discussed in Lamprecht v. FCC, 958 F.2d 382, 385 (D.C.Cir.1992)). In that case, however, the motion for remand was filed before oral argument en banc (the panel opinion had been vacated) and, more important, the Commission's motion, which indicated that it doubted the constitutionality of its own policy, was supported by the petitioner who had challenged the policy. ² By contrast, in this case the FCC never indicated any doubt as to the constitutionality of its affirmative action/EEO policy. Still, if the Church had supported the Commission's motion in this case, we might well have ordered a remand.

The Church's position was quite understandable. It is simply not so, as the Commission contends, that if we had ordered a remand and the Commission had modified its opinion as its counsel indicated that it would, that the Church would have been granted complete relief. The Church had challenged both the King's Garden policy and the FCC's EEO regulations. And the regulations, as we recognized in our prior opinion, would continue to apply to the Church even if King's Garden were overruled. In its Lutheran Church order, the Commission indicated that any religious exemption would apply to the entire set of EEO regulations. But in its new policy statement, the Commission expressly disavowed that position. 13 F.C.C.R. 6322, 6325 (1998) ("Religious broadcasters will also remain subject to Sections 73.2080(b) and (c) of the Commission's Rules ... notwithstanding any suggestion to the contrary in Lutheran Church-Missouri Synod, 12 F.C.C.R. 2152, 2166 n. 9 (1997)."). The Church would thus still remain obligated to exercise racial preferences within the pool of Lutheran applicants under the Commission's EEO rules. As such, modification of the King's Garden policy, whether pursuant to RFRA or the Commission's new policy, would not bring the Church into compliance with the EEO regulations.

The Commission claims that the Church did not actually challenge the future effect of the EEO regulations, rather just their application to it in this case and the sanctions the FCC imposed. But whenever a party challenges the regulatory basis for a sanction it necessarily challenges the future effect of the regulation. Understandably, the Church focused its fire on the Commission's reasoning in this specific case, but it nevertheless made clear that it was challenging the constitutionality of the Commission's entire EEO regulatory scheme as in violation of the Fifth Amendment. ³ Certainly that is why the Justice Department filed its amicus brief directed only to that issue.

2. The RFRA/Free Exercise Ground

The Commission alternatively argues that we were obliged to decide the RFRA challenge to the Commission's order before reaching any constitutional issues or even if, as we concluded, the RFRA challenge were intertwined with First Amendment free exercise concerns, we were obliged to decide that issue before we reached the Fifth Amendment question.

We find the Commission's position quite anomalous because under its preferred order of disposition of issues we would have had to decide the Fifth Amendment issue unless we decided the RFRA/free exercise issue against it. Just as a party ordinarily may not be heard to complain about the reasoning of a decision in its favor, Powell v. Washington Metropolitan Area Transit Commission, 466 F.2d 466 (D.C.Cir.1972), we think a losing party has no legal basis for claiming a case should have been decided against it on another ground. It may well be that the Commission really assumes that if we had struggled first with the RFRA/free exercise issue we would have been inclined to remand, in which case this argument is really only another way to present its remand contention. ⁴

We are certainly mindful of the doctrine that counsels avoidance of constitutional issues, but as we have explained, we do not see how deciding the case on RFRA/free exercise grounds would have granted the Church complete relief. And, as we also observed in our prior opinion, the RFRA/free exercise issue is also constitutional in character. There is simply no support for the Commission's peculiar notion that some constitutional issues, like those involving the First Amendment, are less important and should be decided before Fifth Amendment claims.

3. Strict Scrutiny

It is important to recognize that the Commission's defense rests solely on its contention that strict scrutiny does not apply to its policy of seeking broadcast programming diversity through EEO employment guidelines. The Justice Department had asserted that the Commission's policy was also justified based on the Commission's legitimate interest in preventing employment discrimination and that even if strict scrutiny applied, the Commission's EEO employment guidelines met the compelling interest tests and narrow tailoring that strict scrutiny requires. Seeking rehearing (in the petition filed jointly with the Commission) the Justice Department abandoned the claim that the FCC's policy can withstand strict scrutiny. All the Commission's eggs--at least at this stage--are placed in the standard of review basket.

The Commission's essential argument is that its rule "does not require the station to adopt racial goals or achieve proportional representation in its workforce," (emphasis added), and therefore strict scrutiny is inappropriate. FCC Petition for Rehearing and Suggestion for Rehearing In Banc at 12. Moreover, the Commission insists there is no evidence in the record that this station, or any station, ever...