# Unite d States Court of Appe als

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T



### Filed On: Septembe r 17, 2020

No. 18-1063

D U Q U E S N E 

### U

N I V E R S I TY

O F T H E 

### H O L

Y 

### S P I R I T 

### , P E TI TI O N E R



### v.

N A TI O N A L 

### L A B O R 

### R E L

A TI O N S 

### B O A R

D 

### , R E S P O N D E

N T



### U N I TE D 

### S TE E L 

### , P A P E R

A N D 

### F O R E S TR Y 

### , R U B B E R 

### , M A N U F A C TU R I N G 

### , A L L I E D 

### -I

N D U S TR I A L A N D 

### S E R V I C E 

### W O R K E R S 

### I N TE R N A TI O N A L 

### U N I O N 

### , AFL -CI O-CL C, I N TE R V E N O R



### Consolidated with 18-1078

On Petition for Review a

nd Cross-Application for Enf orce ment of an O rder

of the National L abor Rela tions Boar d

On Petition for Rehea

ring En Ba

nc

### 2

Be fore : S R

I N I V A S A N 

### , Chief Judge ; H E

N D E R S O N 

### , R O G E R S 

### , T A TE L 

### , G A R

L A N D 

### , G R I F F I TH 

### **, M I L L E TT 

### , P I L L A R D 

### *, W I L K

I N S 

### , K A TS A S 

### , R A O A

N D 

### W A L K

E R 

### ***, Circuit Judges

.

O R D E R

Upon consideration of the petition of intervenor for rehear i n g en banc, the response s there to, and the absenc e of a reque st by

any member of

the cour t for a vote , it is

ORDERED that the petition be denied.

P er C uriam

F OR THE COURT:

Mark J. L ang er, Cler

k

BY : /s/ Daniel J. Reidy Deputy Clerk

* A statement by Circuit J udg e Pill ard, concur ring in the denial of re hear ing e n banc, is a ttached.

** Circuit J ud ge Griffith was a member of the panel that decide d this case but retire d prior t o t he dispositi on of the petition.

*** Circuit J udg e Walker did not par ticipate in this matter.P ILLARD , 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 acknowledg ing the extraordinary deference that d ecision paid
to religious schools

. The whole point of the NLRB’s Pacific Lutheran analysis was t o studiously avoid examination of the faculty members’ actual religious duties by looking to whether a religious school itself “holds out” faculty members as playing

a n identified role in its religion. See Duquesne Univ. of the Holy Spirit v. NLRB , 947 F.3d 824, 843

- 4 4 (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 Re ligion Clauses require

. Yet the majority concludes that this doctrine “impermissibly intrud es 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 p ublic representations

, taken alone, cannot justify carv ing 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 Amendmen t Religion Clauses. ’ ” Id. at 833 (quoting Carroll Coll.

, 558 F.3d at 572)

. But the Supreme Court has

re peatedly held in the parallel context of the “ministerial2
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
, 14 0 S. Ct. 2049, 2063

- 65 (2020); Hosanna

- Tabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 192

- 94 (2012) ; id

. at 198 (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 Chi cago , 440 U.S. 490 (1979), and this court’s ensuing decisions in Great Falls and Carroll College

. We are
, of course

, bound by Catholic Bishop

, a s we are by our own decisions unless and un til we convene en banc to revisit them

. But
, for reasons that I have alr eady explained, see Duquesne
, 947 F.3d at 839

- 43, t his case is materially different from each of those

, and , fairly read, Pacific Lutheran honor ed all the precedents the majority invokes to the contrary

. On its own terms, then, the majority g e t s 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.3
Looking ahead, t wo 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 it s 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 o nce 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 (2015) (quoting Warger v . Shauers , 574 U.S. 40, 50 (2014)). The Supreme Court in Catholic Bishop identified no ambiguity in the NLRA’s “very broad terms .” 440 U.S. at 504. Five years later, the Court described the breadth of the NLRA’s definition of “employee” as “striking”

— “s ubject only to certain specifically enumerated exceptions ,” none of which relate to religious schools. Sure

- Tan, Inc v. NLRB , 467 U.S. 883, 891 (1984). The Catholic Bishop Court, however, located ambiguity in the legislative history; it concluded that th e 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. That inverted method of statutory interpretation

— bypassing clear text and4
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 unani mous 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 ass ociates 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 (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 , 138 S. Ct. 1134, 1143 (2018) (quoting Se dima, S.P.R.L. v. Imrex Co. , 473 U.S. 479, 495 n. 1 3 (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 c ourts 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. Humph ries , 553 U.S. 442 , 456 (2008). And the Court’s recent ministerial exception decisions

s uggest 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 religious5
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)

. Much of the reasoning in these cases is consistent with the logic behind Catholic Bishop

. Compare , e.g. , id. at 20 55 ( 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 49 6 ( 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 de mand the “holding out” approach we devised as further avoidance. W e cannot kick the can down the road indefinitely,

never actually deciding whether and h ow the NLRA’s application to distinct categories of employees is limited by the Religion Clauses. Catholic Bishop ’s stature as binding precedent as to high school teachers responsible for guiding students’ religious education does not license us to expand it s holding to cut out from the NLRA additional categories of “employers” or “employees” based on unfocused Religious Clause concerns brought to bear via miscast constituti onal

avoidance reasoning

. See Catholic Bishop , 440 U.S. at 502 (noting that “ we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue ”)

. The Supreme Court has never applied Catholic Bishop to institutions of higher education nor has a ny majority decision for an appellate court other than ours

. C

f. Universidad Cent. de Bayamon v. NLRB , 793 F.2d 383, 4016 (1st Cir. 1985) (equally divided en b anc ) (Breyer, J.) (describing the question whether an “institution of higher education falls within the strictures of Catholic Bishop ” as “an important, likely recurring, question that calls for Supreme Court guidance”). It is not immediately clear why a n NLRA carveout designed for teachers at parochial schools should apply to part

- time, non

- religious, college or university adjunct instructor s

— or what would then stop it s further exten sion to information technology support staff, cafeteria workers, or campus security, or, for that matter, to hundreds of thousands of other employees at religious hospitals or other religious ly governed organizations

. The constitutional rationale for excluding from the NLRA teachers wi th a role in transmitting the faith is not obviously implicated in the case of teacher s lacking such function . It is even less clear why other employees the NLRA’s plain text reach es but who lack any demonstrated role in the employer’s faith mission might also be excepted

. As I have explained, neither adjuncts, nor the wide range of non

- teaching staff that religious educational institutions emplo y, should simply be equated with the parochial

- school teachers in Catholic Bishop

. See Duquesne

, 947 F.3d at 84 0

- 42 (Pillard, J., dissenting); c f. id. at 836 (majority opinion) ( suggesting the question whether NLRB “may

. . . assert jurisdiction over some non

- faculty employees” remains open ). Faced with a religious university’s claim that the choice by a distinc t category of its adjuncts to be represented by a union interfered with its religious exercise

, entangling the NLRB in its religious workings, we should have identified and decided the constitutional question , as the Court itself did in the parallel context of Hosanna

- Tabor and Our Lady of Guadalupe

. When we skirt such questions on constitutional avoidance grounds , we carve out ill

- defined exemptions from duly enacted statutes

, likely exceeding what the Constitution itself compels.7

Ad dressing the constitutional question head

- on, the Court’s ministerial exception cases s how that we took a wrong turn in Great Falls and Carroll College

. Just two months ago

, in Our Lady of Guadalupe , the Court signaled that there is no constitutional impe diment to distinguishing employees who are the heart of the religious mission from those who are not

. The Court rejected any “rigid test” for determining who falls within the ministerial exception, requiring that courts instead

“ take all relevant circumstances into account and

. . . determine whether each particular position implicated the fundamental purpose of the exception.” 140 S. Ct. at 2067 . Only two Justices endorsed the view that courts ought to just outright “defer to r eligious organizations’ good

- faith claims that a certain employee’s position is ‘ministerial

. ’” Id

. at 2069

- 7 0 (Thomas, J., concurring). By contrast, while recognizing the fact that the schools at issue “expressly saw [their employees] as playing a vital part in carrying out the mission of the church”

as “important ,” the majority also weighed “abundant record evidence that [the employees at issue] performed vital religious duties.” Id. at 2066 (majority opinion) . In so doing, it suggested that inquiry i nto an employee’s religious role does not present any First Amendment problem. Cf. id

. at 2071 (Thomas, J., concurring) ( “ [C] oncerns of entanglement have not prevented the Court from weighing in on the theological question s of which positions qualify as ‘ministerial.’” )

. These decisions call into question the reasoning that underl ies Great Falls and Carroll College

— cases that seem to hold any inquiry behind a religious school ’ s public representations to be necessarily out of bounds. See Carroll Coll. , 558 F.3d at 573; Great Falls , 278 F.3d at 1344. Such a hands

- off approach risks “deny [ing] protection to workers the [NLRA] was design ed to reach ” for no good First Amendment reason. Holly Farms Corp. v. NLRB , 517 U.S. 392, 399 (1996).8
Duquesne sidesteps the teaching of the ministerial exception cases , emphasizing that the NLRA and antidiscrimination statutes constitute distinct bodies of law

. See Resp. to Pet. for Reh’g at 14

- 16. But t he question is whether their differences are constitutionally relevant. Duquesne characterizes antidiscrimination law as “retrospective” in an effort to distinguish the ministerial
excep tion ’s “more searching review

. ” Id. at 15. Antidiscrimination statutes are “necessarily focused on the individual bringing suit,” s ays Duquesne, s o unlike the NLRA, which facilitates “bargaining over a variety of as

- yet

- unknown conditions of employment

. ” Id. But reality reflects no such neat dichotomy. Both bodies of law have retrospective force : the initial adjudicating agency may differ (EEOC versus the NLRB ), but under either regime employee s may present claims that the ir workplace right s have been violated. Both bodies of law also operate prospectively, projecting compliance obligations on employers that shape their ongoing interactions with employees.

The suggestion that the NLRA imposes intrusive, continuous duties whereas antidiscrimination law does not thus overlooks the effects of the latter on employers’ hiring, recruitment, and evaluation. See, e.g.

, Albemarle Paper Co. v. Moody , 422 U.S. 405, 417 (1975) (describing Title VII’s “primary objective” as “prophylactic” ). To the extent that there is a difference, the NLRA arguably entails less substantive imposition because it is limited to process : it sets the rules that govern negotiations toward agreed

- upon contracts but, unlike antidiscrimination law, does not impose su bstantive terms of employment top

- down

. In the absence of any reason why merely negotiat ing with their employees’ chosen representatives interferes with religious schools’ constitutional prerogatives , the Religion Clauses must afford the same leeway9

to operation of the NLRA as they do federal employment discrimination laws.

In any event, these questions are worth examining in a future case. The NLRB’s recent decision to “adopt” the majority’s understanding of Great Falls ’ test and disavow jurisdiction over all teachers, including adjunct faculty “of self

identified religious schools,” Bethany Coll. , 369 N.L.R.B. No. 98 , 2020 WL 3127965 ( June 10, 2020), does not eliminate our obligation to resolve the extent to which the Religio n Clauses curtail the application of the NLRA to teachers at religious schools. Indeed, insofar as “refusal by the agency to institute proceedings [ is ] based solely on the belief that it lacks jurisdiction” under Great Falls and Catholic Bishop , the NLRB’ s decision will command our review. Heckler v. Chaney , 470 U.S. 821, 833 n.4 (1985). Given that c ases raising these issues are already waiting in the wings

, s ee Duquesne
, 947 F.3d at 832 n.1 ( noting our orders in Manhattan Coll ege v. NLRB , No. 18

- 1113 (D.C. Cir. June 26, 2018 ), and Saint Xavier Univ ersity v. NLRB , No. 18

- 1076 (D.C. Cir. Sept. 19, 2018 )

, holding both petitions for review in abeyance pending Duquesne ’s resolution )

, I expect there will soon be an opportunity to reconsider our preceden t expanding on Catholic Bishop

.

When that opportunity does arrive

, we must be exceedingly careful to ensure that any course correction we undertake does not “depriv [e] [a] church of control over the selection of those who will personify its beliefs.” Hosanna

Tabor , 565 U.S. at 188. As the Supreme Court has reminded us, employment matters have the potential to “affect[] the faith and mission of [a] church itself.” Id. at 190. These constitutionally prized attributes of religious practice deserve our continued respect. Such respect need not come at the expense of workplace rights of those employees who do not10
personify a religious school’s beliefs, nor does it depe nd on conferring the broadest exemption at institutions wh ose religious character might readily accommodate labor protections alongside their faith . I trust that we can discern the extent to which the First Amendment requires religious schools be shielded from NLRA obligations in a manner appreciative of the autonomy they maintain over their mission

. See Our Lady of Guadalupe , 140 S. Ct. at 2060. Because those important issues have not been squarely raised before us in this

case , I concur in denial of the petition for rehearing en banc

.