IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 00-50092

_______________

THERESA M. SILER-KHODR,

Plaintiff-Appellee,

VERSUS

THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER SAN ANTONIO, ET AL.,

Defendants,

THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER SAN ANTONIO,

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 POLITZ, DEMOSS, and STEWART, 

Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc

as a petition for panel rehearing, the petition

for panel rehearing is 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 service not

having voted in favor (FED. R. APP. P. 35 and

5TH CIR. R. 35), the petition for rehearing en

banc is DENIED.
2

JERRY E. SMITH, Circuit Judge, with whom

HAROLDR.DEMOSS,JR., CircuitJudge, joins,

dissenting from the denial of rehearing en

banc:

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

have lost an opportunity to bring our Eleventh

Amendment jurisprudence into conformity

with the Supreme Court’s recent caselaw.

I.

In affirming a judgment under the Equal

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

Texas's argument that application of the EPA

to a state university violates the Eleventh

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

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

Irrespective of whether particular judges like

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

The majority decision is inconsistent with

the Supreme Court’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, Congresssought to invoke

its powers under section 5 of the Fourteenth

Amendment. See 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 proportionality” test, which

requires that section 5 legislation not be “so

out of proportion to a supposed remedial or

preventive object that it cannot be understood

as responsive to, or designed to prevent, unconstitutional behavior.” City of Boerne v.

Flores, 521 U.S. 507, 520, 531 (1997).

Although section 5 does give Congress the

power to enact “prophylactic” legislation that

prohibits conduct going beyond that which in

itselfviolatesthe EqualProtectionClause,section 5 legislation is unconstitutional if it “prohibitssubstantially more state employment decisions and practicesthan would likely be held

unconstitutional under the applicable equal

protection . . . standard.” Kimel v. Fla. Bd. of

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

If the majority opinion were written on a

blank slate, it would be even easier for me to

urge en banc reconsideration followed by reversal. Appropriately, the majority relied in

part on the fact that the constitutionality of the

EPA has been upheld by five other circuits1

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 upholding the

EPA.2 The Court has not yet granted

certiorari in any of the cases upholding the

1

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

(7th Cir. 2000) (“Varner 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); Anderson 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), vacated and remanded, 528 U.S.

1111 (2000); Varner v. Ill. State Univ., 150 F.3d

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

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

EPA since Kimel, but it seems likely that it

does not regard the issue as settled and is only

awaiting the emergence of a circuitsplit. Also,

importantly, the Court has rejected only one

relevant certiorari petition since Kimel.

3

II.

A.

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

such legislation imposes congressional policy

on a state involuntarily, and because it often

intrudes on traditional state authority, we

should not quickly attribute to Congress an

unstated intent to act under its authority to enforce the FourteenthAmendment.” Pennhurst

State Sch. &Hosp. v. Halderman, 451 U.S. 1,

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

“nowhere statesthat isits purpose” and where

such a purpose is not evident from the

legislation’s “language and structure” or

legislative history. Id. at 17. For the reasons

well laid out in Judge DeMoss’s dissent, there

is no indication that Congresssought to use its

section 5 powersSSand there is a great deal of

evidence that it sought to use its powers under

the Commerce ClauseSSwhen it enacted the

1974 amendments to the EPA extending it to

cover the states. Siler-Khodr, 261 F.3d at

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

Although the plaintiff may be right in supposing that Congress need not explicitly invoke section 5 in the text of the statute,4

there

must be at leastsome significant indicationSSin

the text, structure, or legislative historySSthat

it sought to use its section 5 powers.

Congress cannot rely on section 5 without any

indication that it intended to do so. 

Veryrecently, theCourtspecifically refused

to consider section 5 as a justification for the

constitutionality of a statute where “[t]here is

no suggestion in the language of the statute

itself, or in the House or Senate Reports of the

bill which became the statute that Congress

had in mind” its Fourteenth Amendment

powers. Fla. Prepaid Postsecondary Educ.

Expense Bd. v. College Sav. Bank, 527 U.S.

627, 642 n.7 (1999).5 Even in EEOC v.

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

decision heavily relied on by the plaintiff and

by the United States as intervenor, 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

discern some legislative purpose or factual

predicate that supports the exercise of that

power.”

Although SupremeCourt precedent maybe

equivocal as to how much indication of

congressionalintent is necessaryto invoke section 5 properly, there is little doubt after

Florida Prepaid that at least some such

indication isrequired. The EPA does not meet

even this minimal standard.

3

See Varner II.

4

See 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 Eleventh Amendment

arguments and reinforces my concerns about

the panel majority’s result and reasoning.

Raygor holds, in anEleventhAmendment sovereign immunitycase, that “insofar asstatutory

intent was ambiguous, we [will] not ‘attribute

to Congress an intent to intrude on state

governmentalfunctions regardless of whether

Congress acted pursuant . . . to § 5 of the

Fourteenth Amendment.’” Id. at 1007

(quoting Gregory v. Ashcroft, 501 U.S. 452,

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

“it is not relevant whether Congress acted

pursuant to § 5.” Id. at 1007-08. 

The specific context of Raygor was

statutory ambiguity over whether Congress

had intended to abrogate state sovereign

immunity at all. The Court’s reasoning,

however, is also applicable to the question

whether Congress sought to invoke section 5.

This conclusion is required by Raygor’s

emphatic statement that “[w]hen Congress

intends to alter the usual balance between the

States and the Federal Government, 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 criticalmattersinvolved in

the judicial decision” of an important question

of constitutional law. Id. 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 resolve 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 ofstate employees by the Equal Pay

Act undeniably “intrude[s] on state governmental functions” and “alter[s] the usual

balance between the States and the Federal

Government,” Raygor strongly suggests that

there must be at least minimal indication that

Congress sought to invoke its powers under

section 5. Id. at 1006, 1007.

III.

Even if Congress did properly invoke its

powers under section 5, the EPA fails the test

of congruence and proportionality. “Congress

can enact broad prophylactic legislation that

prohibits conduct that is constitutional only

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

the means adopted to that end.’” Kazmier v.

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

(quoting Kimel, 528 U.S. at 86). A statute

cannot be justified under section 5 if it

“prohibits substantially more state employment

decisions and practices” than are themselves

unconstitutional. Kimel, 528 U.S. at 86; see

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

If the EPA is to be justified at all under

section 5, it must be as a remedial measure

aimed at eradicating unconstitutional sex discrimination. It is well established that the

Equal Prot ection Clause forbids only

intentional sex discrimination. Personnel

Adm’r v. Feeney, 442 U.S. 256 (1979).

Moreover, unconstitutional “[d]iscriminatory

purpose . . . implies more than intent as volition or intent as awareness of consequences .

. . . It implies that the decisionmaker . . .

selected or reaffirmed a particular course of

action at least in part ‘because of,’ not merely
5

‘in spite of,’ its adverse effects on an

identifiable group.” Id. at 279 (quotation

omitted). 

Unfortunately, the EPA goes far beyond

forbidding intentionalsex discrimination. One

circuit has described it as a “strict liability”

statute under which “no intent to discriminate

need be shown.” Fallon v. Illinois, 882 F.2d

1206, 1213 (7th Cir. 1989). “Unlike the

showing required under Title VII’s disparate

treatment theory, proof of discriminatory

intent is not required to establish a prima facie

case under the Equal Pay Act.” Peters v. City

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

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

the EPA “prohibits substantially more state

employment decisions and practices than

would likelybe held unconstitutional under the

applicable equal protection . . . standard.”

Kimel, 528 U.S. at 86.

The four affirmative defenses to a prima

facie case available under the EPA do not

eliminate the danger that it can be used to prohibit an excessively large amount of

constitutional conduct. Once the plaintiff

establishes a prima facie case, these defenses

allow the defendant to justify the challenged

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

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

systemwhichmeasures earnings byquantityor

quality of production; (4) any other factor

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

comprehensive, there are likely to be many

cases in which none of them applies even in

the absence ofintentional, unconstitutionalsex

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 affirmatively 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 or impossible to document at trial.

Moreover, even where sex was the determining factor in a particular decision, it may

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

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

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

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

State agencies may adopt pay scales that

have the effect of paying women lessthan men

without doing so “because of” their “adverse

effects” on women. Id. (emphasis added).

The requirement that the defendant state

affirmatively prove not only its lack of a discriminatory intent but also the existence of a

valid alternative ground for its decision

ensures that a substantial amount of

constitutionalstate action will run afoul of the

EPA. 

Previous Supreme Court cases upholding a

burden-shifting provision undersection 5 have

6

In Reeves v. Sanderson Plumbing Prods.,

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

under title VII, but it explicitly reaffirmed the

fundamental principle that “[t]he ultimate burden

of persuading the trier of fact that the defendant

intentionally 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

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

done so only in cases in which the

governmental entity had a long history of

intentional discrimination, or where the

specific 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 have

served astools ofintentionaldiscrimination. It

therefore falls short of the congruence and

proportionality requirement the Supreme

Court has imposed on section 5 legislation.

Our Eleventh Amendment jurisprudence in

this area needs to be squared with recent and

emerging Supreme Court law. Accordingly, I

respectfully dissent from the denial of

rehearing en banc.

7

See, e.g., City of Boerne, 521 U.S. at 533

(surveying and summarizing these cases); City of

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

(upholding preclearance requirements imposed by

the Voting Rights Act because they are limited to

jurisdictions with a “demonstrable history of

intentionalracial discrimination”); South Carolina

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

(upholding Voting Rights Act ban on voting tests

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