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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
Treating the petition for rehearing en banc
REHEARING EN BANC
as a petition for panel rehearing, the petition
for panel rehearing is DENIED. The court
(Opinion August 24, 2001, 261 F.3d 542)
having been polled at the request of one of the
members of the court, and a majority of the
Before POLITZ, DEMOSS, and STEWART,
judges who are in regular active service not
Circuit Judges.
having voted in favor (FED. R. APP. P. 35 and
5TH CIR. R. 35), the petition for rehearing en
PER CURIAM:
banc is DENIED.

JERRY E. SMITH, Circuit Judge, with whom
out of proportion to a supposed remedial or
HAROLD R. DEMOSS, JR., Circuit Judge, joins,
preventive object that it cannot be understood
dissenting from the denial of rehearing en
as responsive to, or designed to prevent, un-
banc:
constitutional behavior." City of Boerne v.
Flores, 521 U.S. 507, 520, 531 (1997).
I respectfully dissent from the court's fail-
Although section 5 does give Congress the
ure to grant en banc reconsideration in this im-
power to enact "prophylactic" legislation that
portant case. As a result of this failure, we
prohibits conduct going beyond that which in
have lost an opportunity to bring our Eleventh
itself violates the Equal Protection Clause, sec-
Amendment jurisprudence into conformity
tion 5 legislation is unconstitutional if it "pro-
with the Supreme Court's recent caselaw.
hibits substantially more state employment de-
cisions and practices than would likely be held
I.
unconstitutional under the applicable equal
In affirming a judgment under the Equal
protection . . . standard." Kimel v. Fla. Bd. of
Pay Act ("EPA"), the panel majority rejected
Regents, 528 U.S. 62, 86 (2000).
Texas's argument that application of the EPA
to a state university violates the Eleventh
If the majority opinion were written on a
Amendment. Siler-Khodr v. Univ. Health Sci.
blank slate, it would be even easier for me to
Ctr., 261 F.3d 542 (5th Cir. 2000).
urge en banc reconsideration followed by re-
Irrespective of whether particular judges like
versal. Appropriately, the majority relied in
it, however, the Supreme Court has been giv-
part on the fact that the constitutionality of the
ing more and more Eleventh Amendment pro-
EPA has been upheld by five other circuits1
tection to the states. The panel majority opin-
and in Ussery v. Louisiana, 150 F.3d 431 (5th
ion takes no account of that trend.
Cir. 1998). It is significant, however, that af-
ter deciding Kimel, the Court vacated and re-
The majority decision is inconsistent with
manded two circuits' opinions upholding the
the Supreme Court's Eleventh Amendment
EPA.2 The Court has not yet granted
jurisprudence in two significant respects.
certiorari in any of the cases upholding the
First, as Judge DeMoss's dissent ably
demonstrates, there is no indication that, when
it enacted the EPA, Congress sought to invoke
1See Varner v. Ill. State Univ., 226 F.3d 927
its powers under section 5 of the Fourteenth
(7th Cir. 2000) ("Varner II"), cert. denied, 533
Amendment. See Siler-Khoder, 261 F.3d at
U.S. 902 (2001); Kovacevich v. Kent State Univ.,
551-58 (DeMoss, J., dissenting in part,
224 F.3d 806, 819-21 (6th Cir. 2000); Hundert-
concurring in part). Because Congress almost
mark v. Fla. Dep't of Transp., 205 F.3d 1272,
certainly relied solely on its powers under the
1274 (11th Cir. 2000); O'Sullivan v. Minnesota,
Commerce Clause, the EPA cannot pierce the
191 F.3d 965, 968 (8th Cir. 1999); Anderson v.
states' sovereign immunity.
State Univ., 169 F.3d 117 (2d Cir. 1999), vacated
and remanded, 528 U.S. 1111 (2000).
Second, even if Congress did properly
2 See Anderson v. State Univ., 169 F.3d 117
invoke its section 5 powers, the EPA fails the
(2d Cir. 1999), vacated and remanded, 528 U.S.
"congruence and proportionality" test, which
1111 (2000); Varner v. Ill. State Univ., 150 F.3d
requires that section 5 legislation not be "so
706 (7th Cir. 1998) ("Varner I"), vacated and
remanded, 528 U.S. 1110 (2000).
2

EPA since Kimel, but it seems likely that it
must be at least some significant indicationSSin
does not regard the issue as settled and is only
the text, structure, or legislative historySSthat
awaiting the emergence of a circuit split. Also,
it sought to use its section 5 powers.
importantly, the Court has rejected only one
Congress cannot rely on section 5 without any
relevant certiorari petition since Kimel.3
indication that it intended to do so.
II.
Very recently, the Court specifically refused
A.
to consider section 5 as a justification for the
In enacting the EPA, Congress failed to in-
constitutionality of a statute where "[t]here is
voke its powers under section 5. "Because
no suggestion in the language of the statute
such legislation imposes congressional policy
itself, or in the House or Senate Reports of the
on a state involuntarily, and because it often
bill which became the statute that Congress
intrudes on traditional state authority, we
had in mind" its Fourteenth Amendment
should not quickly attribute to Congress an
powers. Fla. Prepaid Postsecondary Educ.
unstated intent to act under its authority to en-
Expense Bd. v. College Sav. Bank, 527 U.S.
force the Fourteenth Amendment." Pennhurst
627, 642 n.7 (1999).5 Even in EEOC v.
State Sch. & Hosp. v. Halderman, 451 U.S. 1,
Wyoming, 460 U.S. 226, 243 n.18 (1983), a
16 (1981). An intent to invoke section 5 pow-
decision heavily relied on by the plaintiff and
ers cannot be attributed to an act that
by the United States as intervenor, the Court
"nowhere states that is its purpose" and where
noted that "[i]t is in the nature of our review
such a purpose is not evident from the
of congressional legislation defended on the
legislation's "language and structure" or
basis of Congress's powers under Section 5 of
legislative history. Id. at 17. For the reasons
the Fourteenth Amendment that we be able to
well laid out in Judge DeMoss's dissent, there
discern some legislative purpose or factual
is no indication that Congress sought to use its
predicate that supports the exercise of that
section 5 powersSSand there is a great deal of
power."
evidence that it sought to use its powers under
the Commerce ClauseSSwhen it enacted the
Although Supreme Court precedent may be
1974 amendments to the EPA extending it to
equivocal as to how much indication of
cover the states. Siler-Khodr, 261 F.3d at
congressional intent is necessary to invoke sec-
551-55 (DeMoss, J., dissenting).
tion 5 properly, there is little doubt after
Florida Prepaid that at least some such
Although the plaintiff may be right in sup-
indication is required. The EPA does not meet
posing that Congress need not explicitly in-
even this minimal standard.
voke section 5 in the text of the statute,4 there
3 See Varner II.
4(...continued)
protection'").
4 See EEOC v. Wyoming, 460 U.S. 226, 243
n.18 (1983) (holding that to invoke its � 5 powers,
5 See also Chavez v. Arte Publico Press, 204
Congress need not "anywhere recite the words
F.3d 601, 604 (5th Cir. 2000) (acknowledging that
`section 5'' or `Fourteenth Amendment' or `equal
Florida Prepaid has clarified Supreme Court
(continued...)
precedent on this point).
3

B.
Raygor does not resolve the question of
The panel majority did not have the benefit
how strong an indication of congressional in-
of Raygor v. Regents of the Univ. of Minn.,
tent is required; but it certainly holds that at
122 S. Ct. 999 (2002), when it issued its
least some is necessary. Because the
opinion. This new decision is further
regulation of state employees by the Equal Pay
indication of the Supreme Court's increasing
Act undeniably "intrude[s] on state gov-
receptiveness to Eleventh Amendment
ernmental functions" and "alter[s] the usual
arguments and reinforces my concerns about
balance between the States and the Federal
the panel majority's result and reasoning.
Government," Raygor strongly suggests that
Raygor holds, in an Eleventh Amendment sov-
there must be at least minimal indication that
ereign immunity case, that "insofar as statutory
Congress sought to invoke its powers under
intent was ambiguous, we [will] not `attribute
section 5. Id. at 1006, 1007.
to Congress an intent to intrude on state
governmental functions regardless of whether
III.
Congress acted pursuant . . . to � 5 of the
Even if Congress did properly invoke its
Fourteenth Amendment.'" Id. at 1007
powers under section 5, the EPA fails the test
(quoting Gregory v. Ashcroft, 501 U.S. 452,
of congruence and proportionality. "Congress
470 (1991)) (emphasis added). In such cases,
can enact broad prophylactic legislation that
"it is not relevant whether Congress acted
prohibits conduct that is constitutional only
pursuant to � 5." Id. at 1007-08.
when there is a `congruence and propor-
tionality between the injury to be remedied and
The specific context of Raygor was
the means adopted to that end.'" Kazmier v.
statutory ambiguity over whether Congress
Widmann, 225 F.3d 519, 524 (5th Cir. 2000)
had intended to abrogate state sovereign
(quoting Kimel, 528 U.S. at 86). A statute
immunity at all. The Court's reasoning,
cannot be justified under section 5 if it
however, is also applicable to the question
"prohibits substantially more state employment
whether Congress sought to invoke section 5.
decisions and practices" than are themselves
This conclusion is required by Raygor's
unconstitutional. Kimel, 528 U.S. at 86; see
emphatic statement that "[w]hen Congress
also Kazmier, 225 F.3d at 524 (same).
intends to alter the usual balance between the
States and the Federal Government, it must
If the EPA is to be justified at all under
make its intention to so unmistakably clear in
section 5, it must be as a remedial measure
the language of the statute" to ensure that "the
aimed at eradicating unconstitutional sex dis-
legislature has in fact faced, and intended to
crimination. It is well established that the
bring into issue, the critical matters involved in
Equal Prot ection Clause forbids only
the judicial decision" of an important question
intentional sex discrimination. Personnel
of constitutional law. Id. at 1006 (citations
Adm'r v. Feeney, 442 U.S. 256 (1979).
omitted). Obviously, we cannot ensure that
Moreover, unconstitutional "[d]iscriminatory
Congress faced the critical issue of the scope
purpose . . . implies more than intent as voli-
of its section 5 powers in the process of
tion or intent as awareness of consequences .
enacting the EPA if there is no indication that
. . . It implies that the decisionmaker . . .
it sought to invoke those powers at all.
selected or reaffirmed a particular course of
action at least in part `because of,' not merely
4

`in spite of,' its adverse effects on an
allow the defendant to justify the challenged
identifiable group." Id. at 279 (quotation
earnings disparity if it is a result of "(1) a
omitted).
seniority system; (2) a merit system; (3) a
system which measures earnings by quantity or
Unfortunately, the EPA goes far beyond
quality of production; (4) any other factor
forbidding intentional sex discrimination. One
other than sex." Fallon, 882 F.2d at 1211
circuit has described it as a "strict liability"
(citing 29 U.S.C. � 206(d)(1) (1994)).
statute under which "no intent to discriminate
Although these four categories (and
need be shown." Fallon v. Illinois, 882 F.2d
particularly the catch-all last one) seem
1206, 1213 (7th Cir. 1989). "Unlike the
comprehensive, there are likely to be many
showing required under Title VII's disparate
cases in which none of them applies even in
treatment theory, proof of discriminatory
the absence of intentional, unconstitutional sex
intent is not required to establish a prima facie
discrimination.
case under the Equal Pay Act." Peters v. City
of Shreveport, 818 F.2d 1148, 1153 (5th Cir.
There may be numerous instances in which
1987).6 Thus, there is a strong likelihood that
an employment decision was made as a result
the EPA "prohibits substantially more state
of difficult-to-articulate intuitive factors that
employment decisions and practices than
cannot be affirmatively proven by evidence
would likely be held unconstitutional under the
strong enough to refute a prima facie case un-
applicable equal protection . . . standard."
der the EPA. In practice, the reasoning
Kimel, 528 U.S. at 86.
underlying an employment decision may be
difficult or impossible to document at trial.
The four affirmative defenses to a prima
Moreover, even where sex was the deter-
facie case available under the EPA do not
mining factor in a part icular decision, it may
eliminate the danger that it can be used to pro-
not have been the result of "a . . . course of
hibit an excessively large amount of
action [adopted] at least in part `because of,'
constitutional conduct. Once the plaintiff
not merely `in spite of,' its adverse effects on"
establishes a prima facie case, these defenses
women. Feeney, 442 U.S. at 279.
State agencies may adopt pay scales that
6 In Reeves v. Sanderson Plumbing Prods.,
have the effect of paying women less than men
Inc., 530 U.S. 133 (2000), the Court relaxed some-
without doing so "because of" their "adverse
what the standards for disparate treatment liability
effects" on women. Id. (emphasis added).
under title VII, but it explicitly reaffirmed the
The requirement that the defendant state
fundamental principle that "[t]he ultimate burden
affirmatively prove not only its lack of a dis-
of persuading the trier of fact that the defendant
criminatory intent but also the existence of a
intentionally discriminated against the plaintiff
valid alternative ground for its decision
remains at all times with the plaintiff." Id. at 143
ensures that a substantial amount of
(internal citations omitted). Thus, a decision
constitutional state action will run afoul of the
striking down the EPA as applied to the states does
EPA.
not imply that the application of title VII to state
employers is constitutionally suspect. See
Fitzpatrick v. Blitzer, 427 U.S. 445 (1976) (up-
Previous Supreme Court cases upholding a
holding the constitutionality of the 1972 amend-
burden-shifting provision under section 5 have
ments to title VII that extend it to state employers).
5

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 as tools of intentional discrimination. 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
intentional racial 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 per-
petrating evil").
6