                                                                       [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                MAR 07 2000
                         ________________________
                                                             THOMAS K. KAHN
                                                                  CLERK
                                No. 98-4924
                         ________________________

                      D. C. Docket No. 98-0002-CIV-ASG

JANE MARIE HUNDERTMARK,
                                                                 Plaintiff-Appellee,

                                     versus

STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION,
The Honorable Ben G. Watts, Secretary,
                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                               (March 7, 2000)

Before COX and BARKETT, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM:

      Plaintiff, Jane Marie Hundertmark, filed a complaint against the Florida

Department of Transportation (“FDOT”) and its secretary Ben G. Watts, alleging,
inter alia, a violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (“EPA”).1 The

defendants moved to dismiss, claiming that the Eleventh Amendment bars suit against

the State of Florida for claims under the Equal Pay Act. The district court denied the

motion to dismiss, ruling that Congress had amended the Equal Pay Act and abrogated

the States’ sovereign immunity pursuant to § 5 of the Fourteenth Amendment and

therefore the Eleventh Amendment did not bar an action against the State in Federal

Court. We AFFIRM.

        We review the district court’s order denying the State’s motion to dismiss based

on the Eleventh Amendment’s grant of sovereign immunity de novo. See Kimel v.

State of Florida Board of Regents, 139 F.3d 1426, 1428 (11th Cir. 1998).

        We must apply a two-part test to determine whether Congress has

constitutionally abrogated the States’ sovereign immunity under the Equal Pay Act.

First, we determine whether Congress has unequivocally expressed its intent to

abrogate the States’ sovereign immunity; and second, we determine whether Congress

has acted pursuant to a valid exercise of power. See Kimel v. Florida Board of

Regents, 528 U.S. ___, ___, 120 S.Ct. 631, 640 (2000), citing Seminole Tribe v.

Florida, 517 U.S. 44, 55 (1996). The State concedes that Congress sufficiently

    1
     The plaintiff also alleged discrimination under Title VII of the Civil Rights Act of 1991, 42
U.S.C. § 2000e and the Florida Human Rights Act, Fla. Stat. § 760.01. The district court dismissed
the plaintiff’s Florida Human Rights Act claim on Eleventh Amendment grounds and dismissed the
Title VII claim against Secretary Watts. None of these issues was appealed.

                                                2
expressed its intent to subject the States to suit under the Equal Pay Act. Therefore,

we turn to the sole issue raised in this appeal – whether Congress enacted the Equal

Pay Act pursuant to a valid exercise of its § 5 remedial power under the Fourteenth

Amendment.

      The determination of whether Congress acted pursuant to a valid exercise of its

§ 5 power under the Fourteenth Amendment requires us to consider two questions;

first, whether Congress exercised its § 5 power when it applied the Equal Pay Act to

the States despite the failure of Congress to explicitly state the basis of its power, and

second, whether extension of the Equal Pay Act to the States is within Congress’s §

5 powers. Congress acts pursuant to a valid exercise of its section five power under

the Fourteenth Amendment if the statute purporting to do so (1) may be regarded as

an enactment to enforce the Equal Protection Clause, (2) is plainly adapted to that end,

and (3) is consistent with and not prohibited by the letter of the constitution. See

Katzenbach v. Morgan, 384 U.S. 641, 651(1966).

      Congress may not subject the States to suit under its Article I, Commerce

Clause powers. See Seminole Tribe v. Florida, 517 U.S. 44, 72-73(1996). However,

“[s]ection 5 of the Fourteenth Amendment does grant Congress the authority to

abrogate the States’ sovereign immunity.” Kimel at 644. The original enactment of

the Equal Pay Act in 1963 applied only to private employers and stated that Congress


                                            3
was legislating pursuant to its powers under the Interstate Commerce Clause. In 1974,

when Congress extended the Equal Pay Act to the States, Congress did not state the

basis for its power to abrogate the States’ sovereign immunity. This lack of language

by Congress stating the basis of its power to legislate is not fatal because the Supreme

Court has acknowledged the long-recognized rule that “[t]he constitutionality of

action taken by Congress does not depend on recitals of the power which it undertakes

to exercise.” Equal Employment Opportunity Commission v. Wyoming, 460 U.S.

226, 244, n.18 (1983), quoting Woods v. Miller, 333 U.S. 138, 144 (1948). Therefore,

we conclude that Congress need not explicitly state the basis of its power to legislate

in order to validly exercise its § 5 enforcement powers.2




   2
     Every other Circuit to consider this issue has reached the same conclusion. See O’Sullivan v.
Minnesota, 191 F.3d 965, 967-68 (8th Cir. 1998); Anderson v. State Univ. of N.Y., 169 F.3d 117,
120 (2d Cir. 1999) (per curiam), judgment vacated and remanded for further consideration in light
of Kimel, 528 U.S. ___, 120 S.Ct. 929 (Jan. 18, 2000) (Mem.); Ussery v. Louisiana, 150 F.3d 431,
436-37 (5th Cir. 1998), cert. dismissed, ___ U.S. ___, 119 S.Ct. 1161 (1999) (No. 98-739); Varner
v. Illinois State Univ., 150 F.3d 706, 712-14 (7th Cir. 1998) judgment vacated and remanded for
further consideration in light of Kimel, 528 U.S. ___, 120 S.Ct. 928 (Jan. 18, 2000) (Mem.);
Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 838 (6th Cir. 1997); Usery v. Charleston
County Sch. Dist., 558 F.2d 1169, 1171 (4th Cir. 1977); Usery v. Allegheny County Inst. Dist., 544
F.2d 148, 155 (3d Cir. 1976).
         Additionally, the Supreme Court’s most recent decision in this area, Kimel v. State of Florida
Board of Regents, 528 U.S. __, 120 S.Ct. 631 (2000), assumes without analysis that the ADEA was
amended pursuant to Congress’s § 5 enforcement powers. Because the ADEA, like the Equal Pay
Act, was amended without specific language stating the basis of Congress’s power, that assumption
by the Supreme Court supports the notion that Congress need not specifically address the basis of
its power to legislate.

                                                  4
      The plain language of the statute indicates that its purpose is to prevent and

combat gender discrimination in the provision of wages. 29 U.S.C. § 206(d)(1) (“No

employer having employees subject to any provisions of this section shall discriminate

... between employees on the basis of sex by paying wages to employees in such

establishment at a rate less than the rate at which he pays wages to employees of the

opposite sex in such establishment for equal work ... .”). The Supreme Court has

repeatedly found that combating gender discrimination is a valid goal of the

Fourteenth Amendment. See, e.g., United States v. Virginia, 518 U.S. 515 (1996).

Regardless of whether one finds that the EPA was appropriately enacted, it is

indisputable that it was enacted to enforce the protections of the Equal Protection

Clause.

      Because we have determined that Congress exercised its § 5 powers when it

amended the Equal Pay Act, we must now determine whether the application of the

Equal Pay Act to the States is within Congress’s § 5 enforcement powers. We hold

that the extension of the Equal Pay Act to the States is within Congress’s § 5

enforcement powers. Congress is vested with the power to enforce the Fourteenth

Amendment, but not the power to determine the substance of the Fourteenth

Amendment’s restrictions. See City of Boerne, 521 U.S. at 519. The “ultimate

interpretation and determination of the Fourteenth Amendment’s substantive meaning


                                          5
remains the province of Judicial Branch.” Kimel, at 644. However, “‘Congress must

have wide latitude in determining where [the line between remedial and substantive

legislation] lies.’” Id., quoting City of Boerne at 519-20, 536. With that in mind, the

Supreme Court elucidated the “congruence and proportionality test,” holding that

“[t]here must be a congruence and proportionality between the injury to be prevented

or remedied and the means adopted to that end.” Id.

      The Court has applied the “congruence and proportionality” test three times,

each time holding that Congress had exceeded the scope of its enforcement power

under § 5 of the Fourteenth Amendment. See Kimel, 528 U.S. ___, ___, 120 S.Ct.

631, 645(2000) (holding that the application of the Age Discrimination in

Employment Act of 1967 to the States is beyond Congress’s power to enforce under

§ 5 of the Fourteenth Amendment); Florida Prepaid Postsecondary Ed. Expense Bd.

v. College Savings Bank, 527 U.S. 627 (1999) (holding that the Patent Remedy Act

in so far as it subject the States to patent infringement suits is beyond Congress’s § 5

power to enforce under the Fourteenth Amendment); City of Boerne v. Flores, 521

U.S. 507(1997) (holding that the Religious Restoration Freedom Act of 1993 is

beyond Congress’s § 5 power to enforce under the Fourteenth Amendment). In each

case, the Court held that the legislative record of the Acts failed to identify

“widespread and persisting deprivation of constitutional rights” of the sort Congress


                                           6
has faced in enacting proper prophylactic § 5 legislation. Florida Prepaid, at ___ ,

citing City of Boerne, at 526; see also Kimel, at 647-49. Additionally, the Court held

that each Act at issue was “so out of proportion to a supposed remedial or preventive

objective that it cannot be understood as responsive to, or designed to prevent,

unconstitutional behavior.” Kimel, at 647; Florida Prepaid, at ___; City of Boerne,

at 531-32. The means used by Congress in RFRA, the ADEA, and the Patent Remedy

Act, were not congruent and proportional to the injuries Congress attempted to

remedy.

      Congruence and proportionality require us to balance the injury that Congress

has attempted to remedy against the means Congress has chosen to achieve its

remedial purpose. Under the Equal Pay Act, Congress sought to remedy the injury of

intentional gender-based wage discrimination. Unlike the legislative records in the

ADEA, RFRA, and the Patent Remedy Act, the legislative record of the Equal Pay

Act reflects that Congress did find substantial gender-based wage discrimination in

the workplace. Indeed, the Supreme Court has recognized that

      Congress’ purpose in enacting the Equal Pay Act was to remedy
      what was perceived to be a serious and endemic problem of
      employment discrimination in private industry – the fact that the
      wage structure of ‘many segments of American industry has been
      based on an ancient but outmoded belief that a man, because of his
      role in society, should be paid more than a woman even though
      his duties are the same.’


                                       7
Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974) (citations omitted).

While it is true that Congress has not made similar findings with respect to wage

discrimination in the public sector, such findings are not fatal because gender

discrimination is a problem of national import. See City of Boerne, 521 U.S. at 531-

32. One need look no further than President Clinton’s year 2000 State of the Union

Address to be reminded that in this country, in many areas of the workforce, women

still only receive approximately seventy-five cents for every dollar paid to men. See

also U.S. Bureau of the Census, Current Population Reports, Series P60- 200, Money

Income of Households, Families, and Persons in the United States: 1997 (in 1996,

women in the United States earned only seventy-four cents for every dollar earned by

men).

        Against the substantial injury of gender-based wage discrimination we balance

the means Congress used to remedy the injury. Under the Act, liability for wage

discrimination is only actionable if an employer cannot provide any factor other than

gender to justify the wage disparity. This framework is congruent with the Supreme

Court’s current standard for reviewing cases of gender-based discrimination under the

Equal Protection Clause of the Fourteenth Amendment.3 To protect itself against



   3
     Since 1971, classifications based on gender have been “subject to scrutiny under the Equal
Protection Clause.” Reed v. Reed, 404 U.S. 71, 75 (1971).

                                              8
liability for discrimination under the Equal Protection Clause, a State must show

“exceedingly persuasive justification” for discriminating on the basis of gender.

United States v. Virginia, 518 U.S. 515, 532-34 (1996). At the very least, the State

must show “that the [challenged] classification serves ‘important governmental

objectives and that the discriminatory means employed’ are ‘substantially related to

the achievement of those objectives.’” Mississippi Univ. for Women v. Hogan, 458

U.S. 718, 724 (1982) (citations omitted).       Therefore, the Equal Pay Act validly

enforces and remedies already existent constitutional rights; it does not create any

more substantive rights than those already deemed to exist.

      In contrast, the ADEA, challenged and overturned in Kimel, subjected the

States to suits for classifications based on age, which would only be subject to rational

basis review under the Equal Protection Clause. The State would not run afoul of the

Equal Protection Clause for a classification based on age as long as the State could

portend that the classification was rationally related to a legitimate state interest.

Therefore, the ADEA, which attempted to subject the States to suit for any

classifications on the basis of age, exceeded Congress’s § 5 enforcement powers

because it created additional rights. By prohibiting all discrimination based on an

individual’s age, the ADEA prohibited substantially more state employment decisions

and practices than would be held unconstitutional under a rational basis standard.


                                           9
See id. at 648.4 Conversely, the Equal Pay Act’s prohibition on discrimination in pay

and other employment benefits based on gender is congruent with decisions and

practices that are deemed unconstitutional under a heightened scrutiny analysis.

        Therefore, because the Equal Pay Act, unlike the ADEA, RFRA, and the Patent

Remedy Act, satisfies the congruence and proportionality test expressed by the

Supreme Court, it is a valid exercise of Congress’s enforcement powers under § 5 of

the Fourteenth Amendment. The judgment of the district court is AFFIRMED.




    4
      In Kimel, the Court contrasted age with race and gender, stating that “[a]ge classifications,
unlike governmental conduct based on race or gender, cannot be characterized as ‘so seldom
relevant to the achievement of any legitimate state interest that laws grounded in such considerations
are deemed to reflect prejudice and antipathy.’” Kimel, at 645 (emphasis added) (citations omitted).

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