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See  X *  "Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974). The Commission insists we  X *  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   lsimply 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   JCommissioners"even a majority"to transform a prospective enforcement policy into a   Pretroactive 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   Xmajority of Commissioners' expressed intent to apply the new policy retroactively to this   adjudicatory proceeding (notwithstanding that a petition for reconsideration directed to the policy  X*  8statement has been filed before the Commission _ XL*ԍ The Commission's attempt to characterize Commissioner FurchtgottRoth'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.), because we could thereby have avoided   deciding a constitutional question. We rather doubt that this court should ever grant an agency's   0motion to remand after oral argument over the opposition of a petitioner. The same consideration   bthat 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  X`*  vmaneuver. 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  X4*  an equal protection challenge. See Steele v. FCC, 770 F.2d 1192 (D.C. Cir. 1985), vacated,  X*  Steele v. FCC, No. 841176 (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  X*  pbefore 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" 0*0*0*"  X*  supported by the petitioner who had challenged the policy. Xy*ԍ See Appellant's Response to Motion for Remand at 1, Steele v. FCC, No. 841176 (D.C.  Xd*Cir. 1986). It was the intervenor, and the amici curiae, supporting the Commission's policy,  XO*who objected. See Intervenor Dale Bell's Opposition to Motion for Remand at 1; Joint Response to Motion for Remand at 1. By contrast, in this case the FCC   never indicated any doubt as to the constitutionality of its affirmative action/EEO policy. Still,   lif the Church had supported the Commission's motion in this case, we might well have ordered a remand.  LXThe 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   4counsel indicated that it would, that the Church would have been granted complete relief. The  XJ*  ^Church had challenged both the King's Garden policy and the FCC's EEO regulations. And the   Pregulations, as we recognized in our prior opinion, would continue to apply to the Church even  X *  Bif King's Garden were overruled. In its Lutheran Church order, the Commission indicated that   Pany religious exemption would apply to the entire set of EEO regulations. But in its new policy   lstatement, 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  X *  Commission's Rules ... notwithstanding any suggestion to the contrary in Lutheran  X *  Church/Missouri Synod, 12 F.C.C.R. 2152, 2166 n.9 (1997)."). The Church would thus still   Premain obligated to exercise racial preferences within the pool of Lutheran applicants under the  X*  Com-mission'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.  LThe 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.   zBut 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  X*  Amendment.s: X*ԍ The Church certainly raised a general equal protection challenge in its opening brief, and we have held that an appellant has the right to amend its argument when the government  X\!*makes such a shift midway through the appeal. Dynalantic Corp. v. Deparment of Defense, 115 F.3d 1012, 1015 (D.C. Cir. 1997).s Certainly that is why the Justice Department filed its amicus brief directed only to that issue.  V\*2. The RFRA/Free Exercise Ground  LfThe 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," 0*0*0*P"   the RFRA challenge were intertwined with First Amendment free exercise concerns, we were  X*obliged to decide that issue before we reached the Fifth Amendment question.   X*  LXWe 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  X*  the RFRA/free exercise issue against it. Just as a party ordinarily may not be heard to complain  Xx*  Pabout the reasoning of a decision in its favor, Powell v. Washington Metropolitan Area Transit  Xc*  Commission, 466 F.2d 466 (D.C. Cir. 1972), we think a losing party has no legal basis for   Bclaiming a case should have been decided against it on another ground. It may well be that the   zCommission really assumes that if we had struggled first with the RFRA/free exercise issue we   4would have been inclined to remand, in which case this argument is really only another way to  X *present its remand contention.TP  X *ԍ The Commission's citation of the Supreme Court's recent decision in Federal Election  Xm *Commission v. Akins, 118 S. Ct. 1777 (1998), in support of its position is of no help. In  XX*Akins, the Supreme Court refused to address what we thought was a pure statutory issue. See  XC*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.T  LfWe 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   zwould have granted the Church complete relief. And, as we also observed in our prior opinion,   lthe 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.  V:*3. Strict Scrutiny  LIt 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   pEEO 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.  X&* LThe 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   Xtherefore strict scrutiny is inappropriate. FCC Petition for Rehearing and Suggestion for  X*  4Rehearing In Banc at 12. Moreover, the Commission insists there is no evidence in the record"0*0*0*"   ^that this station, or any station, ever engaged in racial hiring (presumably discriminating against a nonminority).  LtWe 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 classification only   if it requires or obliges someone to exercise a racial preference. As we observed in our prior  Xv*  bopinion, it is clear that these regulations do effectively oblige the Church to implement racial  Xa*  ^preferences in its hiring decisions. Lutheran ChurchMissouri Synod, 141 F.3d at 35152. But   0the 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  X *  classification. In Adarand, the challenged regulations did not require or obligate would-be  X *  contractors to grant a preference to minority subcontractors. Adarand Constructors, Inc. v. Pena,   >515 U.S. 200 (1995). Rather, the regulations provided a financial incentive to bidding contractors   ^to grant such a preference"an incentive that contractors were free (at their economic peril) to  X *  ~disregard. Id. at 20508. Nonetheless, the Supreme Court treated the regulations as a racial  X *  classification, and did not even pause to consider the suggestion that the absence of a compelled   4racial preference makes strict scrutiny inapposite. Because the FCC's regulations at issue here   indisputably pressure"even if they do not explicitly direct or require"stations to make  Xn*  race-based hiring decisions, under the logic of Adarand, they too must be subjected to strict  XY*  scrutiny. See also Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 710 (9th Cir. 1997).n~Y X*ԍ The Ninth Circuit in Monterey stated that a classification constitutes a racial  X*classification if it "authorizes or encourages" a racial preference. Monterey Mechanical Co.,  X*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 address that question as the regulations here unquestionably  Xe*"encourage" racial preferences under Adarand.n   ~Judge Tatel contends that the regulations do not provide "incentives" to stations to engage in  X-*  race-based personnel decisions, but as we explained in our initial decision, Lutheran Church X*Missouri Synod, 141 F.3d at 35152, we think that assertion blinks reality.  LBy insisting on an "obligation or requirement" test, Judge Edwards would make the   lanalytical definition of a classification 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  X*  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  Xd*encouragement"a fact that no one denies"that makes this regulation a racial classification.d X#$*ԍ 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.  LThat 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" 0*0*0*P"   Tgovernment can encourage"or even require"an outreach program specifically targeted on   Bminorities is, of course, a question we need not decide. As we concluded in our prior opinion,   Fthe Commission's regulations go far beyond any nondiscriminatory outreach program. The   imposition of numerical norms based on proportional representation"which is the core element   to what are often referred to as affirmative 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  Xv*  0strict scrutiny.A5v X*ԍ If a non-discriminatory hiring policy would necessarily yield a workforce with a racial composition that matches that of the Metropolitan Statistical Area, then it might be argued that requiring employers to examine the racial composition of their workforces is simply an anti-discrimination enforcement technique that does not implicate racial preferences. However, not only has the Commission 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  XN*group in direct proportion to its numbers in the community." Lutheran ChurchMissouri  X9*Synod, 141 F.3d at 352.A In other words, the regulations here must be subjected to strict scrutiny 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  X1*the government must be subjected to strict scrutiny. See supra n.5.  LfThe 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 employed a   Fracial preference in its hiring decisions. Judge Tatel argues that absent such evidence strict   scrutiny is inappropriate. 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   fwhy 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   lclassifications, 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.  L<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   Pinconsistent 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" 0*0*0*"   challenged policy was the "but for" cause of his injury; the claim that the litigant was denied  X*  equal treatment is sufficient to constitute Article III "injury-in-fact." See Northeastern Fla.  X*  >Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 66466   Z(1993). Thus, if a non-minority prospective Church employee had challenged the constitutionality   of the regulations, 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.   TIt would be sufficient, for standing purposes, to show that the regulations caused him to be   treated differently from minorities. That being so, we cannot understand how such a litigant   4would 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 individual 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.  X * LThe Commission en passant calls to our attention the proposition that "statistics can be   Xan important source of proof in employment discrimination cases." But the Commission   "understandably does not link up that observation with any part of their argument. It could appear   Zto 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   4preventing discrimination but as achieving program diversity. It is clearly designed to place an   obligation on stations that goes considerably beyond non-discrimination with respect to hiring minorities.  LJThat 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   Pdifferent from the obligation an employer defendant has to rebut a showing of disparate impact   in which proportionality 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 programming 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).  LWe 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  X*  4disclaims any intention of pressuring employers to impose racial preferences. See 42 U.S.C.    2000e2j (1994) ("Nothing contained in [Title VII] shall be interpreted to require any employer   0... to grant preferential treatment to any individual or to any group because of [ ] race...."). Since   8we 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   4merely adopting Chief Judge Edwards' suggestion"that the FCC amend the regulations to add  XY%*  0the 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 Edwards recommends"is to simply put forward a covering fiction. "(0*0*0*&"Ԍ LEven 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   lproportionality of minorities in the overall population (the Metropolitan Statistical Area or MSA)   vis 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  Xv*  in the labor market. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)   z(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.  LRIf discrimination under Title VII were defined as non-proportionality, much of the   BSupreme 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  X*  ~national class." Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602 (1990) (O'Connor, J.,   Tdissenting) (citation and internal quotations omitted). Of course, in some situations unequal   treatment is justified to account for past discrimination, but societal discrimination is not enough  XO*  to justify imposing a racially classified remedy. Richmond v. J.A. Croson Co., 488 U.S. 469,  X:*  ^49394, 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 discrimination by construction unions did   not violate Title VII). The Supreme Court has never held that non-proportionality constitutes  X*  discrimination. (The Commission itself disavowed this position.  Lutheran ChurchMissouri  X*  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  X*  quotas. Watson, 487 U.S. at 99197 (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   8discriminatory is not equivalent to concluding that the absence of proportionality makes out discrimination. q* * * Accordingly, we deny the Commission's petition.