## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-50092

_______________



### T HERESA 

### M. S ILER 

### -K HODR



### ,

Plaintiff-Appellee,

VERSUS



### T HE 

### U NIVERSITY OF 

### T EXAS 

### H EALTH 

### S CIENCE 

### C ENTER 

### S AN 

### A NTONIO



### , ET AL



### .,

Defendants,



### T HE 

### U NIVERSITY OF 

### T EXAS 

### H EALTH 

### S CIENCE 

### C ENTER 

### S AN 

### A NTONIO



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

May 16, 2002

ON PETITION FOR

REHEARING EN BANC

(Opinion August 24, 2001, 261 F.3d 542)

Before P OLITZ , D E M OSS , and S TEWART

, Circuit Judges.

PER CURIAM: Treating the petition for rehearing en banc

as a petition for panel rehearing, the pet i tion

for panel reh earing i s DENIED. The court

having been polled at the request of one of the

members of the court, and a majority of the

judges who are in regular active serv ice not

having voted in favor (F ED

. R. A PP

. P. 35 and

5 TH C IR

. R. 35), t he petition for rehearing en

banc is DENIED.2

J ERRY E. S MITH

, Circuit Judge, with whom

H AROLD R. D E M OSS

, J R

., Circuit Judge, joins,

dissentin g from the denial of rehearing en

banc:

I respectfully dissent from the court’s failure to grant en banc reconsideration in this impo rt ant case. As a result of this failure, we

have lost an opportuni ty to bring our Eleventh

Amendmen t jurisprudence into conformity

with the Supreme Court’s recent caselaw.

I.

In affirmi ng a judgment under the Equal

Pay Act (“EPA”), the panel majority rejected

Texas's argument that application of the EPA

t o a state university violates the Eleventh

Amendment. Siler-Khodr v. Univ. Health Sci.

Ctr.

, 261 F.3d 542 (5th Cir. 2000).

Irrespective of whet her particular judges like

it, however, the Supreme Court has been giving more and more Eleventh Amendment protecti on to the states. The panel majority opinion takes no account of that trend.

The majority decision is inconsistent with

the Supreme Cou r t’s Eleventh Amendment

jurisprudence in two significant respects.

First , as Judge DeMoss’s dissent ably

demonstrates, there is no indication that, when

it enacted the EPA, Congress sought to invoke

its powers under section 5 of the Fourteenth

Amendment. S ee Siler-Khoder

, 261 F.3d at

551-58 (DeMoss, J., dissenting in part,

concurring in part). Because Congress almost

certainly relied solely on its powers under the

Commerce Clause, the EPA cannot pierce the

states’ sovereign immunity.

Second, even if Congress did properly

invoke its section 5 powers, the EPA fails the

“congruence and proportionalit y” test, which

r equires that section 5 legislation not be “so out of proporti on to a supposed remedial or

preventive object that it cannot be understood

as responsive t o, or desi gned to prevent, unconstitutional behavior.” City of Boerne v.

Flores

, 521 U.S. 507, 520, 531 (1 997).

Although section 5 does give Congress the

power to enact “prophylactic” legislation that

prohibits conduct going beyond that which in

itself violates the Equal Protecti on Clause, section 5 legislation is unconstitutional if it “prohibit s substantially more state employment decisions and practices than would likely be held

unconstitutional under the applicable equal

protecti on

. . . standard.” K imel v. Fla. Bd. of

Regents , 528 U.S. 62, 86 (2000).

If the majority o pinio n were written on a

blank slate, it would be even ea sier for me to

urge en banc reconsideration fo l lowed by reversal. Appro priately, the majority relied in

part on the fact that the constitutionality of the

EPA has been upheld by five other circuits 1

and in Ussery v. Louisiana

, 150 F.3d 431 (5th

Cir. 1998). It is significant, however, that after deciding Kimel , the Court vacated and remanded two circuits’ opinions uph o lding the

EPA. 2 The Court has not yet granted

certiorari in any of the cases uph o lding the

1 See Varner v. Ill. State Univ. , 226 F.3d 927

(7th Cir. 2000) ( “Va rner II ” ), cert. denied

, 533

U.S. 902 (2001); Kovacevich v. Kent State Univ.

, 224 F.3d 806, 819-21 (6th Cir. 2000); Hundertmark v. Fla. Dep’t of Transp. , 205 F.3d 1272,

1274 (11th Cir. 2000); O’Sullivan v. Minnesota

, 191 F.3d 965, 968 (8th Cir. 1999); A nderson v.

State Univ.

, 169 F.3d 117 (2d Cir. 1999), vacated

and remanded , 528 U.S. 1111 (2000).

2 See Anderson v. State Univ.

, 169 F.3d 117

(2d Cir. 1999), vacat ed and remanded , 528 U.S.

1111 (2000); Varner v. Ill. State Univ.

, 150 F.3d

706 (7th Cir. 1998) ( “Varner I ”), vacat ed and

remanded , 528 U.S. 1110 (2000).3

EPA since Kimel

, but it seems l ikely that it

does not regard the issue as settled and is only

awaiting the emergence of a circuit split. Also,

importantly, the Court has rejec t ed only one

relevant certiorari petition since Kimel

. 3

II.

A.

In enacting the EPA, Congress failed to invo ke its powers under section 5. “Because

such legislation impos es congressional policy

on a sta t e involuntarily, and because it often

intrudes on traditiona l state authority, we

should not quickly attribute to Congre s s an

unstated intent to act under its authority to enforce the Fourteenth Amendment.” P ennhurst

State Sch. & Hosp. v. Halderman

, 451 U.S. 1,

16 (1981). An intent to invoke section 5 powers cannot be attributed to an a ct that

“nowhere states that is its purpose” and where

suc h a purpose is not evident from the

l egislation’s “language and structure” or

legislative history. I

d. at 17. For the reasons

well laid out in Judge DeMoss’s dissent, there

is no indication that Congress sought to use its

section 5 powers 

### SS

and there is a great deal of

evidence that it sought to use its powers under

t he Commerce Clause 

### S

S when it enacted the

1974 amendments to the EPA extending it to

cover the states. S iler-Khodr

, 261 F.3d at

551-55 (DeMoss, J., dissenting).

Although the plaint iff may be right in suppo sing that Congress need not explicitly invoke section 5 in the text of the statute, 4 there must be at least some significant indication 

### SS in

the text, structure, or legislative history 

### SS that

it sought to use its section 5 powers.

Congress cannot rely on section 5 without any

indication that it intended to do so.

Very recently, the Court s pecifically refused

t o consider section 5 as a justification for t h e

constitutionality of a statute where “[t]here is

no suggestion in the languag e of the statute

itself, or in the House or Senate Reports of the

bill which became the st atute that Congress

had in mind” its Fourteenth Amendment

powe rs. F

la. Prepaid Postsecondary Educ.

Exp ense Bd. v. College Sav. Bank , 527 U.S.

6 27, 642 n.7 (1999). 5 Even in E EOC v.

Wyoming

, 460 U.S. 226, 243 n.18 (1983), a

decision heavily reli ed on by the plaintiff and

by the United States as i ntervenor, the Court

noted that “[i]t is in the nature of our review

of congressional

legislation defended on the

basis of Congress’s powers under Section 5 of

the Fourteenth Amendment that we be able to

d iscern some legislative purpose or factual

predicate that supports the exerc i se of that

power.”

Although Supreme Court precedent may be

equivocal as to how much indication of

congressional intent is necessary to invoke section 5 properly, there is little do ubt after

Florida Prepaid

that at l east s ome such

indication is required. The EPA does not meet

even this minimal standard.

3 See Varner II

.

4 Se e EEOC v. Wyoming , 460 U.S. 226, 243

n.18 (1983) (holding that to invoke its § 5 powers,

Congress need not “anywhere recite the words

‘section 5’' or ‘Fourteenth Amendment’ or ‘equal

(continued...) 4 (...continued)

protection’”).

5 See also Chavez v. Arte Publico Press , 204

F.3d 601, 604 (5th Cir. 2000) (acknowledging that

Florida Prepaid has clarified Supreme Court

precedent on this point).4 B.

The panel majority did not have the benefit

of Raygor v. Regents of the Univ. of Minn.

, 122 S. Ct. 999 (2002), when it issued its

opinion. This new decision is further

indication of the Supreme Court’s increasing

receptiveness to El eventh Amendment

arguments and reinforces my concerns about

the panel majority’s result and reasoning.

Raygor holds, in an Eleventh Amendment sovereign immunit

y case, that “insofar as statutory

intent was ambiguous, we [will] not ‘attribute

to Congress an intent to intrude on state

governmental functions regardless of whether

Congress ac ted pursuant . . . to § 5 of the

Fourteenth Amendment .’” I d. at 1007

(quoti ng G regory v. Ashcroft

, 501 U.S. 452,

470 (1991)) (emphasis added). In such cases,

“it is not relevant whether C ongress acted

pursuant to § 5.” Id. at 1007-08.

The specific con t ext of Raygor was

statutory ambiguit y over whether Congress

had intended to abrogate state sovereign

immunit y at all. The Co urt’s reasoning,

however, is also applicable to the question

whether Congress sought to invoke section 5.

This conclusion i s required by R aygor ’s

emphatic statement that “[w]hen Congress

intends to alter the usual balance between the

States and the Federal

Go vernment, it must

make its intention to so unmistakably clear in

the language of the statute” to ensure that “the

legislature has in

fact faced, and intended to

bring into issue, the critical matters involved in

the judicial decision” of an important question

of constitu t ional law. I

d. at 1006 (citations

omitted). Obviously, we cannot ensure that

Congress faced the critical issue of the scope

of its section 5 powers in the process of

enacting the EPA if there is no indication that

it sought to invoke those powers at all. Raygor does not reso lve the question of

how strong an indication of congressional intent is required; but it certainly holds that at

least some is necessary. Because the

regulation of state employees by the Equal Pay

Act undeniably “intrude[s] on st a te governmental functions” and “a lter[s] the usual

balance between the States and the Federal

Government,” Raygor strongl y suggests that

there must be at least minimal indication that

Congress sought to invoke its powers under

section 5. Id. at 1006, 1007.

III.

Eve n if Congress did properly invoke its

powers under section 5, the EPA fails the test

of congruence and proportionality. “Congress

c an enact broad prophylactic legislation that

prohibits conduct that is constitutional only

when there is a ‘congruence and proportionality between the injury to be remedied and

the means adopted to that end.’” K azmier v.

Widmann

, 225 F.3d 519, 524 (5th Cir. 2000)

( quoting K

imel

, 528 U.S. at 86). A statute

cannot be justified under section 5 if it

“prohibits substantially more state employment

decisions and pract ices” than are themselves

uncon stituti onal

. K

imel

, 528 U.S. at 86; see

also Kazmier , 225 F.3d at 524 (same).

If the EPA is to be jus t ified at all under

sect ion 5, it must be as a remedial measure

aimed at eradicating unconstitutional sex d i scrimination. It is well established that the

Equal Prot ection Clause forbids only

intentional sex discrimi nation. P ersonnel

Adm’r v. F

eeney , 442 U.S. 256 (1979).

Moreover , unconstitutional “[d]iscriminatory

purpose

. . . implies more than intent as vo lition or intent as awareness of consequences

.

. . . It implies that the decisionmaker . . .

selected or reaffirme d a particular course of

action at least in part ‘because of,’ not merely5

‘in spit e of,’ its adverse effects on an

ident ifiable group.” I

d. at 279 (quotati on

omitted).

Unfortuna t ely, the EPA goes far beyond

forbidding intentional sex discrimination. One

circuit has described it as a “strict lia bilit y”

statute under which “no intent to discriminate

need be shown.” F

allon v. Illinois , 882 F.2d

1206, 1213 (7th Ci

r. 1989). “Unlike the

showing required under Title VII’s disparate

treatment theory, proof o f discriminatory

intent is not required to establish a prima facie

case under the Equal Pay Act.” P eters v. City

of Shreveport , 818 F.2d 1148, 1153 (5th Cir.

1987). 6 Thus, there is a strong likelihood that

t he EPA “prohibits substantially more state

employment decisions and practices than

would likely be held unconstitutional under the

applicab le equal protection . . . standard.”

Kimel , 528 U.S. at 86.

The four affirmative defe nses to a p rima

facie case available under the EPA do not

eliminat e the danger that it can be used to prohibit an excessively large amount o f

constitutional conduct. Once the plaintiff

establishes a prima facie case, these defenses allow the defendant to justify t he challenged

earnings disparity if it is a result of “(1) a

seniority system; (2) a merit system; (3) a

system which measures earnings by quantity or

q uality of production; (4) any other fact o r

other than sex.” Fallon , 882 F.2d at 1211

(citing 29 U.S.C. § 206(d)(1) (1994)).

Although these four categories (and

particularly the catch-all last one) seem

co mprehensive, there are likely to be many

cases in which none of them applies even in

the absence of intentional, unconstitutional sex

discrimination.

There may be numerous instances in which

an employment decision was made as a result

of difficult-to-articulate intuitive factors that

cannot be affirmat ively proven by evidence

strong enough to refute a prima facie case under the EPA. In practice, the reasoning

underlying an employment decision may be

difficult o r impossible to document at trial.

Moreover, even where sex was th e determining factor in a

part icular decision, it may

not have been the result of “a . . . course of

action [adopted] at lea st in part ‘because of,’

not merely ‘in spite of,’ its adverse effects on”

women. Feeney , 442 U.S. at 279.

State ag encies may adopt pay scales that

have the effect of paying women less than men

withou t doing so “

b ecause of

” their “adverse

effects” on women. I

d. (emphasis added)

. The requirement that the defendant state

affirmat ively prove not only its lack o f a discriminatory intent but also the existence of a

valid alternative ground for its decision

ensures that a substantial amount of

constitutional state action will run afoul of the

EPA.

Previous Supreme Court cases upholding a

burden-shifting provision under section 5 have 6 In Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133 (2000), the Court relaxed somewhat the standards for disparate treatment liability

under title VII, but it explici tly reaffirmed the

fundamental principle that “[t]he ult i mate burden

of persuading the trier of fact that th e defendant

i ntentionally discriminated against the plaintiff

remains at all times with the plaintiff.” Id. at 143

(internal citations omitted). Thus, a decision

striking down the EPA as applied to the states does

not imply that the application of title VII to state

employers is constitutionally suspect. See

Fi tzpatrick v. Blitzer , 427 U.S. 445 (1976) (upholding t he constitutionality of the 1972 amendments to title VII that extend it to state employers).6

d o ne so only in cases in which the

governmental entity had a long history of

inten t io nal discrimination, or where the

specifi c challenged policy had a history of

abuse as a pretext for discrimination. 7 By

contrast, the EPA does not require any proof

that the defendant has a history of intentional

discrimination, nor does it limit its scope to

employment practices that routinely hav e

served as tool s of intentional discrimination. It

therefore falls short of the cong ruence and

proporti o nality requirement the Supreme

Court has imposed on section 5 legislation.

Our Eleventh Amendment jurisprudence in

th i s area needs to be squared with recent and

emerging Supreme Court law. Accordingly, I

respectfully dissent from the denial of

rehearing en banc.

7 S ee, e.g., City of Boerne

, 521 U.S. at 533

( sur veying and summarizing these cases); C ity of

Rome v. U.S. , 446 U.S. 156, 177 (1980)

(upholding preclearance requirements imposed by

the Voting R ights Act because they are limited to

jurisdictions with a “demonst rable history of

intentional racial discrimination”); South Carolina

v. Katzenbach

, 383 U.S. 301, 330 (1966)

(u pholding Voting Rights Act ban on voting tests

“because of their long history as a tool for perpetrating evil”).