Siler-Khodr vs. Univ TX Hlth Sci Ctr, (5th Cir. 2002)

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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.

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 courtÂ’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 CourtÂ’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 tÂ’s Eleventh Amendment jurisprudence in two significant respects.

First , as Judge DeMossÂ’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 statesÂ’ 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 circuitsÂ’ 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).

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 § 5 powers, Congress need not “anywhere recite the words ‘section 5Â’' or ‘Fourteenth AmendmentÂ’ 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).

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 CourtÂ’s increasing receptiveness to El eventh Amendment arguments and reinforces my concerns about the panel majorityÂ’s result and reasoning.

Raygor holds, in an Eleventh Amendment sovereign immunit y case, that § 5 of the Fourteenth Amendment .§ 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 urtÂ’s reasoning, however, is also applicable to the question whether Congress sought to invoke section 5. This conclusion i s required by R aygor Â’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 AdmÂ’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 merely ‘in spi t 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 § 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). 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 f or perpetrating evil”).

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