                        United States Court of Appeals

                     FOR THE DISTRICT OF COLUMBIA CIRCUIT

---------

                           Filed September 15, 1998

                                 No. 97-1116

                       Lutheran Church-Missouri Synod, 

                                  Appellant


                                      v.


                     Federal Communications Commission, 

                                   Appellee

                    Missouri State Conference of Branches

                            of the NAACP, et al., 

                                 Intervenors

---------

                          On Petition for Rehearing

---------

     Before:  Silberman, Williams, and Sentelle, Circuit 
Judges.

     Opinion for the Court filed by Circuit Judge Silberman.

     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 Poli-
cies, 13 F.C.C.R. 6322, 6323-24 (1998).  That decision, it will 
be recalled, permitted religious broadcasters to prefer em-
ployees 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 Commis-
sioners 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 (notwith-
standing 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 constitu-
tional 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. 
1998).  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) 

__________
     1 The Commission's attempt to characterize Commissioner 
Furchtgott-Roth's concern as restricted to television stations is 
disingenuous.  The FCC cites his concurrence in the amended 
policy statement as addressing only the nonbinding nature of the 
policy with regard to television stations.  It fails to mention, 
however, the Rule 28(j) letter its own counsel filed with the court 
noting that the Commissioner thought it inappropriate for the 
motion to remand to bind the Commissioners to vote in a particular 
way and thus wished to make no representations about what sort of 
order should ultimately be adopted.



and, more important, the Commission's motion, which indicat-
ed 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 prefer-
ences within the pool of Lutheran applicants under the Com-
mission's EEO rules.  As such, modification of the King's 
Garden policy, whether pursuant to RFRA or the Commis-
sion'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 regula-

__________
     2 See Appellant's Response to Motion for Remand at 1, Steele v. 
FCC, No. 84-1176 (D.C. Cir. 1986).  It was the intervenor, and the 
amici curiae, supporting the Commission's policy, who objected.  
See Intervenor Dale Bell's Opposition to Motion for Remand at 1;  
Joint Response to Motion for Remand at 1.


tory 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

__________
     3 The Church certainly raised a general equal protection chal-
lenge in its opening brief, and we have held that an appellant has 
the right to amend its argument when the government makes such 
a shift midway through the appeal.  Dynalantic Corp. v. Depart-
ment of Defense, 115 F.3d 1012, 1015 (D.C. Cir. 1997).

     4 The Commission's citation of the Supreme Court's recent deci-
sion in Federal Election Commission v. Akins, 118 S. Ct. 1777 
(1998), in support of its position is of no help.  In Akins, the 
Supreme Court refused to address what we thought was a pure 


     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 diversi-
ty through EEO employment guidelines.  The Justice De-
partment 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 guide-
lines met the compelling interest tests and narrow tailoring 
that strict scrutiny requires.  Seeking rehearing (in the peti-
tion filed jointly with the Commission) the Justice Depart-
ment abandoned the claim that the FCC's policy can with-
stand 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 add-
ed), and therefore strict scrutiny is inappropriate.  FCC 

__________
statutory issue.  See Akins v. Federal Election Commission, 101 
F.3d 731 (D.C. Cir. 1997).  Instead, the Court remanded in light of 
a possible constitutional issue that might arise as a result of the 
Federal Election Commission (FEC)'s rules defining "members."  
Far from avoiding the constitutional issue by deciding on statutory 
grounds, the Supreme Court avoided decision on the statutory claim 
by addressing a possible constitutional issue that had not even been 
raised below.



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 engaged in 
racial hiring (presumably discriminating against a non-
minority).

     We think that the Commission's position, accepted by our 
dissenting colleagues, has two logical flaws.  Chief Judge 
Edwards insists that a regulation constitutes a racial classifi-
cation only if it requires or obliges someone to exercise a 
racial preference.  As we observed in our prior opinion, it is 
clear that these regulations do effectively oblige the Church 
to implement racial preferences in its hiring decisions.  Lu-
theran Church-Missouri Synod, 141 F.3d at 351-52.  But the 
degree to which the regulations require, oblige, pressure, 
induce, or even encourage the hiring of particular races is not 
the logical determinant of whether the regulation calls for a 
racial classification.  In Adarand, the challenged regulations 
did not require or obligate would-be contractors to grant a 
preference to minority subcontractors.  Adarand Construc-
tors, Inc. v. Pena, 515 U.S. 200 (1995).  Rather, the regula-
tions provided a financial incentive to bidding contractors to 
grant such a preference--an incentive that contractors were 
free (at their economic peril) to disregard.  Id. at 205-08.  
Nonetheless, the Supreme Court treated the regulations as a 
racial classification, and did not even pause to consider the 
suggestion that the absence of a compelled racial preference 
makes strict scrutiny inapposite.  Because the FCC's regula-
tions at issue here indisputably pressure--even if they do not 
explicitly direct or require--stations to make race-based hir-
ing decisions, under the logic of Adarand, they too must be 
subjected to strict scrutiny.  See also Monterey Mechanical 
Co. v. Wilson, 125 F.3d 702, 710 (9th Cir. 1997).5  Judge Tatel 

__________
     5 The Ninth Circuit in Monterey stated that a classification 
constitutes a racial classification if it "authorizes or encourages" a 
racial preference.  Monterey Mechanical Co., 125 F.3d at 710 
(quoting Bras v. California Pub. Utilities Comm'n, 59 F.3d 869, 875 
(9th Cir. 1995)).  That a regulation becomes a racial classification if 
it "authorizes" preferences may be disputable.  We need not ad-


contends that the regulations do not provide "incentives" to 
stations to engage in race-based personnel decisions, but as 
we explained in our initial decision, Lutheran Church- 
Missouri Synod, 141 F.3d at 351-52, we think that assertion 
blinks reality.

     By insisting on an "obligation or requirement" test, Judge 
Edwards would make the analytical definition of a classifica-
tion depend on the degree of government pressure.  Yet if 
the regulations "suggested" an 80% white male workforce, 
would there be any doubt as to the applicable standard of 
review?  See Monterey Mechanical Co., 125 F.3d at 711.  
Although an analysis of the degree of government pressure to 
grant a racial preference would no doubt be significant in 
evaluating whether a regulation survives strict scrutiny, it is 
the fact of encouragement--a fact that no one denies--that 
makes this regulation a racial classification.6

     That does not mean that any regulation encouraging broad 
outreach to, as opposed to the actual hiring of, a particular 
race would necessarily trigger strict scrutiny.  Whether the 
government can encourage--or even require--an outreach 
program specifically targeted on minorities is, of course, a 
question we need not decide.  As we concluded in our prior 
opinion, the Commission's regulations go far beyond any 
nondiscriminatory outreach program.  The imposition of nu-
merical norms based on proportional representation--which 
is the core element to what are often referred to as affirma-
tive action, set aside, or quota programs--is the aspect of the 
Commission's rule that makes it impossible for us to apply 
any standard of review other than strict scrutiny.7  In other 

__________
dress that question as the regulations here unquestionably "encour-
age" racial preferences under Adarand.

     6 The Commission suggests that even if some stations engage in 
"racial hiring" to avoid FCC scrutiny the employer's actions should 
be thought of as "unilateral," not implicating the government.  We 
do not think that is a serious argument.

     7 If a non-discriminatory hiring policy would necessarily yield a 
workforce with a racial composition that matches that of the Metro-
politan Statistical Area, then it might be argued that requiring 
employers to examine the racial composition of their workforces is 

words, the regulations here must be subjected to strict scruti-
ny because they encourage racial preferences in hiring and as 
such treat people differently according to race.  We of course 
do not claim, as Judge Tatel suggests, that all race conscious 
measures adopted by the government must be subjected to 
strict scrutiny.  See supra n.5.

     The second logical flaw in the Commission's argument, 
adopted in Judge Tatel's dissent, concerns the claim that the 
record includes no evidence that the Church has ever em-
ployed a racial preference in its hiring decisions.  Judge Tatel 
argues that absent such evidence strict scrutiny is inappropri-
ate.  Yet the Commission (and presumably Judge Tatel) 
concedes that if the regulation explicitly imposed quotas or 
goals strict scrutiny should apply.  But one would not know 
at the time the quota or goal were imposed whether it would 
necessarily cause a preferential hiring decision.  It could be 
contended that a goal or even a quota merely reflected a non-
discriminatory hiring pattern and therefore that an employer 
who met the goal or quota never actually discriminated.  
Therefore, if evidence of actual discrimination would not be 
required before applying strict scrutiny in the explicit 
quota/goal cases, there is no logical reason why it should be 
required here.  In truth, such an evidentiary obligation would 
turn equal protection analysis inside out.  Once a government 
program is shown to call for racial classifications, the heavy 
burden to justify it shifts to the government.  The challenger 
does not have to show that the program actually caused him 
to discriminate in an actual case--a requirement which would 
expose the challenger to the risk of admitting a Title VII 
violation.

__________
simply an anti-discrimination enforcement technique that does not 
implicate racial preferences.  However, not only has the Commis-
sion provided no support for this proposition, but as we said in our 
opinion, the Commission has in fact disavowed it, saying that "we do 
not believe that fair employment practices will necessarily result in 
the employment of any minority group in direct proportion to its 
numbers in the community."  Lutheran Church-Missouri Synod, 
141 F.3d at 352.



     The Commission's evidentiary argument also overlooks the 
point that the Church comes before this court asserting the 
constitutional rights of absent third parties:  the prospective 
non-minority applicants who will be denied equal treatment.  
In cases in which a litigant is accorded third party standing--
which no one currently argues the Church lacks--there is 
simply no requirement that the litigant identify the particular 
individuals whose equal protection rights have been, or will 
be, violated.  And the Commission's proposed evidentiary 
obligation is flatly inconsistent with the Supreme Court's 
standing analysis in the affirmative action caselaw.  The 
Court has held that the alleged victim of unequal treatment 
does not have to prove that the challenged policy was the "but 
for" cause of his injury;  the claim that the litigant was denied 
equal treatment is sufficient to constitute Article III "injury-
in-fact."  See Northeastern Fla. Chapter of the Associated 
Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 
664-66 (1993).  Thus, if a non-minority prospective Church 
employee had challenged the constitutionality of the regula-
tions, he would not have to submit evidence demonstrating 
that the Church's actual use of racial preferences (pursuant to 
the regulations) was the cause of his failure to be hired.  It 
would be sufficient, for standing purposes, to show that the 
regulations caused him to be treated differently from minori-
ties.  That being so, we cannot understand how such a 
litigant would be required, in order to trigger strict scrutiny, 
to make a showing that the Church made use of a racial 
preference in his particular hiring decision.  And if an indi-
vidual litigant would not have to make such a showing, 
neither does the Church standing in his or her place for the 
purpose of this constitutional challenge.

     The Commission en passant calls to our attention the 
proposition that "statistics can be an important source of 
proof in employment discrimination cases."  But the Commis-
sion understandably does not link up that observation with 
any part of their argument.  It could appear to be directed to 
the magnitude of government's interest, if strict scrutiny 
applied, but, as we have noted, the Commission does not 
claim that its regulations pass the strict scrutiny test.  And, 



in any event, as we pointed out in our prior opinion, the 
Commission justified its EEO rule not as preventing discrimi-
nation but as achieving program diversity.  It is clearly 
designed to place an obligation on stations that goes consider-
ably beyond non-discrimination with respect to hiring minori-
ties.

     That brings us to the interesting dissenting opinion of the 
Chief Judge, who argues from Title VII disparate impact 
cases that what the Commission has required here is not all 
that different from the obligation an employer defendant has 
to rebut a showing of disparate impact in which proportionali-
ty is relevant.  It is perhaps sufficient to respond that 
whatever the nature of the employer's burden under Title 
VII, the Commission insisted that its regulation is not based 
on employment diversity or anti-discrimination, but on pro-
gramming diversity.  It was the Justice Department that 
initially sought to ride both horses (which is why we observed 
in our opinion that "diversity" can and is being used today as 
a rather plastic term).

     We think the Chief Judge, in any event, is wrong on his 
broader point.  Although statistics, to be sure, can be used in 
Title VII cases, the statute does not encourage employers to 
impose racial preferences in order to avoid Title VII liability.  
Indeed, Title VII itself specifically disclaims any intention of 
pressuring employers to impose racial preferences.  See 42 
U.S.C. s 2000e-2j (1994) ("Nothing contained in [Title VII] 
shall be interpreted to require any employer ... to grant 
preferential treatment to any individual or to any group 
because of [ ] race....").  Since we held that the FCC's EEO 
regulations, unlike Title VII, inevitably cause licensees to 
grant racial preferences, we disagree that the Commission 
could avoid the impact of our holding by merely adopting 
Chief Judge Edwards' suggestion--that the FCC amend the 
regulations to add the above quoted Title VII caveat.  See 
Chief Judge Edwards' dissent at [8].  For the Commission to 
declaim unrealistically that the regulations are not to be 
interpreted as requiring a preference--as Chief Judge Ed-
wards recommends--is to simply put forward a covering 
fiction.



     Even in Title VII disparate impact cases, quite different 
sorts of statistics are employed for the limited purpose of 
determining whether a particular sort of job requirement 
disadvantages minorities.  Comparing the proportionality of 
minorities in the employer's workforce to the proportionality 
of minorities in the overall population (the Metropolitan Sta-
tistical Area or MSA) is never the relevant comparison under 
such cases;  rather, the racial composition of those holding at-
issue jobs is compared with the racial composition of qualified 
applicants or qualified persons in the labor market.  See 
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) 
(O'Connor, J., plurality opinion).  That the relevant statistical 
gauge is not the proportionality of minorities in the overall 
population is clear from the antidiscrimination rationale of 
Title VII--the purpose of statistical evidence is to expose 
possible discriminatory intent, not to establish a workforce 
that mirrors the racial breakdown of the MSA.

     If discrimination under Title VII were defined as non-
proportionality, much of the Supreme Court's recent equal 
protection cases would make little sense.  That is, "[a]t the 
heart of the Constitution's guarantee of equal protection lies 
the simple command that the Government must treat citizens 
as individuals, not as simply components of a racial, religious, 
sexual or national class."  Metro Broadcasting, Inc. v. FCC, 
497 U.S. 547, 602 (1990) (O'Connor, J., dissenting) (citation 
and internal quotations omitted).  Of course, in some situa-
tions unequal treatment is justified to account for past dis-
crimination, but societal discrimination is not enough to justi-
fy imposing a racially classified remedy.  Richmond v. J.A. 
Croson Co., 488 U.S. 469, 493-94, 499 (1989);  cf. Contractors 
Assoc. of E. Penn., 442 F.2d 159 (3d Cir. 1971) (holding that 
an affirmative action program directly tied to past discrimina-
tion by construction unions did not violate Title VII).  The 
Supreme Court has never held that non-proportionality con-
stitutes discrimination.  (The Commission itself disavowed 
this position.   Lutheran Church-Missouri Synod, 141 F.3d 
at 352.)  The Court has noted the danger that relying solely 
on statistical disparities as proof of discrimination under Title 
VII could result in the imposition of de facto quotas.  Watson, 



487 U.S. at 991-97 (O'Connor, J., plurality opinion).  You 
could achieve proportional representation quotas as easily by 
that route as by requiring them explicitly.  In sum, that 
statistical evidence can be relevant in determining whether an 
employer's past practice is discriminatory is not equivalent to 
concluding that the absence of proportionality makes out 
discrimination.

                                  *   *   *


     Accordingly, we deny the Commission's petition.

      
