Case: 22-1822 Document: 56 Page: 1 Filed: 04/11/2024
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LESLIE BOYER,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2022-1822
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:20-cv-00438-ZNS, Judge Zachary N. Somers.
`______________________
`
`SUA SPONTE REQUEST FOR REHEARING EN
`BANC
`______________________
`
`LACHLAN W. SMITH, The Kress Building, Wiggins
`Childs Pantazis Fisher & Goldfarb LLC, Birmingham, AL,
`for plaintiff-appellant. Also represented by JON C.
`GOLDFARB.
`
` KARA WESTERCAMP, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for defendant-appellee. Also represented by
`BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
`MCCARTHY.
`
` DEBRA D'AGOSTINO, The Federal Practice Group, for
`
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`
`
`

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`Case: 22-1822 Document: 56 Page: 2 Filed: 04/11/2024
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`BOYER v. US
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`amici curiae A Better Balance, American Medical Women's
`Association, California Women Lawyers, California Wom-
`en's Law Center, Center for Women's Health & Human
`Rights, Suffolk University, Chicago Foundation
`for
`Women, Clearinghouse on Women's Issues, Desiree Alli-
`ance, Equal Rights Advocates, Faith Action for All, Femi-
`nist Majority Foundation, Hadassah, the Women's Zionist
`Organization of America, Human Rights Campaign,
`If/When/How: Lawyering for Reproductive Justice, In Our
`Own Voice: National Black Women's Reproductive Justice
`Agenda, In the Public Interest, Indiana Community Action
`Poverty Institute, International Action Network for Gen-
`der Equity & Law, Lawyers Club of San Diego, Legal Aid
`at Work, Legal Momentum, the Women's Legal Defense
`and Education Fund, NARAL Pro-Choice America, Na-
`tional Asian Pacific American Women's Forum, National
`Association of Women Lawyers, National Coalition on
`Black Civic Participation, National Consumers League,
`National Crittenton, National Employment Lawyers Asso-
`ciation, National Health Care for the Homeless Council,
`National LGBTQ Task Force, National Women's Law Cen-
`ter, National Womens Political Caucus, Queen's Bench Bar
`Association of the San Francisco Bay Area, Religious Coa-
`lition for Reproductive Choice, Reproaction, Service Em-
`ployees International Union, Shriver Center on Poverty
`Law, SisterReach, Washington Lawyers' Committee for
`Civil Rights and Urban Affairs, Women Employed, Women
`Lawyers On Guard Inc., Women's Bar Association of the
`District of Columbia, Women's Bar Association of the State
`of New York, Women's Institute for Freedom of the Press,
`Women's Law Center of Maryland, Women's Law Project,
`Women's Media Center. Also represented by JANEI AU;
`GAYLYNN BURROUGHS, SUNU CHANDY, PHOEBE WOLFE, Na-
`tional Women's Law Center.
`______________________
`
`
`
`

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`Case: 22-1822 Document: 56 Page: 3 Filed: 04/11/2024
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`BOYER v. US
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` 3
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`Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA,
`TARANTO, CHEN, HUGHES, STOLL, CUNNINGHAM, and
`STARK, Circuit Judges.1
`
`MOORE, Chief Judge, LOURIE, PROST, and TARANTO, Cir-
`cuit Judges, dissent from the denial of the sua sponte re-
`quest for rehearing en banc.
`
`
`PER CURIAM.
`
`O R D E R
` This case was argued before a panel of three judges on
`November 9, 2023, and a precedential opinion issued on
`March 26, 2024. A sua sponte request for a poll on whether
`to consider this case en banc was made. A poll was con-
`ducted, and the poll failed.
`
`Accordingly,
`IT IS ORDERED THAT:
`
`
`The request for rehearing en banc is denied.
`
`
`
`
`
`
`
`
`April 11, 2024
` Date
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`FOR THE COURT
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`
`
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`1 Circuit Judge Newman did not participate.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LESLIE BOYER,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2022-1822
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:20-cv-00438-ZNS, Judge Zachary N. Somers.
` ______________________
`
`MOORE, Chief Judge, LOURIE, PROST, and TARANTO, Cir-
`cuit Judges, dissenting from the denial of the sua sponte
`request for rehearing en banc.
`This case raises a pure legal issue of statutory inter-
`pretation: Does the Equal Pay Act provision “factor other
`than sex” permit consideration of prior pay when setting
`an employee’s salary—as has been expressly authorized by
`Federal statute and regulation for Federal government em-
`ployment for more than 50 years? There can be no doubt
`that this is an important question worthy of en banc con-
`sideration. It is a purely legal issue, there is a three-way
`circuit split (outside the Federal employee context), and
`there are serious concerns about the merits of the panel
`decision and its practical implications. The Federal gov-
`ernment is the nation’s largest employer, with over 1.5
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`BOYER v. US
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`million General Schedule (GS) employees. The panel deci-
`sion creates an immediate claim for a large number of Fed-
`eral employees, enormous liability for the government, and
`an unworkable investigative standard, and it calls into
`question the validity of OPM’s new regulations addressing
`the use of prior pay in salary setting. We look forward to
`briefing at the en banc stage to help flesh out these issues.
`CONCERNS WITH THE PANEL’S STATUTORY
`I.
`CONSTRUCTION
`This case is about whether the Equal Pay Act (EPA)
`enacted in 1963, 29 U.S.C. § 206(d)(1), which permits dif-
`ferential same-job pay among the sexes if it is “based on
`any other factor other than sex,” makes the current and
`past Federal hiring practice of basing salary decisions on
`past salary illegal. The EPA itself says nothing explicitly
`about prior pay. But the language and governing prece-
`dents provide a structure for analysis of such a basis for
`setting individual employees’ pay—a structure under
`which the longstanding Federal practices are lawful.
`The EPA generally prohibits covered employers from
`paying different wages to opposite-sex employees for “equal
`work on jobs the performance of which requires equal skill,
`effort, and responsibility, and which are performed under
`similar working conditions.” 29 U.S.C. § 206(d)(1). We will
`call this the prohibitory clause and use the phrase “same-
`job” as a shorthand for the longer phrase just quoted. But
`the statute contains an exception clause—the prohibition
`applies “except where such payment is made pursuant to
`“(i) a seniority system; (ii) a merit system; (iii) a system
`which measures earnings by quantity or quality of produc-
`tion; or (iv) a differential based on any other factor other
`than sex.” 29 U.S.C. § 206(d)(1).
`To bring a case under the EPA, a plaintiff makes out a
`prima facie case by “show[ing] that an employer pays dif-
`ferent wages to employees of opposite sexes for equal work
`on jobs the performance of which requires equal skill,
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`BOYER v. US
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`effort, and responsibility, and which are performed under
`similar working conditions.” Moore v. United States, 66
`F.4th 991, 997 (Fed. Cir. 2023) (en banc in relevant part)
`(internal quotation marks omitted). It is then the em-
`ployer’s burden to prove—as an affirmative defense—one
`of the EPA’s four permissible non-sex-based justifications
`for paying different sexes differently for equal work. See
`id. at 996; Corning Glass Works v. Brennan, 417 U.S. 188,
`195–96 (1974). In this case, the dispute is about what has
`been called the “broad catch-all factor” in the exception
`clause—permitting a pay differential “based on any other
`factor other than sex.” Taylor v. White, 321 F.3d 710, 717–
`18 (8th Cir. 2003); see County of Washington v. Gunther,
`452 U.S. 161, 170 & n.11 (1981) (describing intended
`breadth of this exception).
`The inquiry under the prohibitory clause turns on an
`objective comparison of employees’ pay once the same-job
`standard is met, without further inquiry into the basis of
`the disparity in pay between the sexes. Moore, 66 F.4th at
`996; see Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.
`618, 640 (2007) (mentioning EPA in case involving Title VII
`of the Civil Rights Act of 1964).1 The prohibitory clause
`gives a specific test for declaring certain pay differences to
`be presumptively based on sex discrimination. The last of
`the four exceptions in the exception-clause defense is dif-
`ferent. It turns on the reason for the employer’s pay prac-
`tices, as “based on” language often does. See Moore, 66
`F.4th at 996 (rejecting “based on” standard for the prohib-
`itory clause, explaining: “Having to prove—on top of a pay
`differential across sexes for equal work—that the different
`is ‘based on’ sex is tantamount to having to prove that it’s
`
`
`1 The Ledbetter ruling regarding Title VII was super-
`seded by the Lilly Ledbetter Fair Pay Act of 2009, Pub. L.
`No. 111-2, 123 Stat. 5 (2009), which did not alter the EPA
`or the Court’s description of the EPA in Ledbetter.
`
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`BOYER v. US
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`because of sex, which is tantamount to having to prove in-
`tentional discrimination.”) (last emphasis added).
`If the employer expressly uses sex as a pay determi-
`nant, the EPA’s fourth exception has been held to be inap-
`plicable, because the express policy establishes sex as the
`reason, even if there is some real-world correlation between
`sex and a non-sex fact (such as life expectancy). See City of
`Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S.
`702, 711–14 (1978) (finding EPA exception—incorporated
`into § 703(h) of Title VII of the Civil Rights Act of 1964, 42
`U.S.C. § 2000e-2(h)—inapplicable where employer re-
`quired female employees to make larger contributions to
`the pension fund than male employees, based on group dif-
`ference in life expectancy); Ariz. Governing Comm. for Tax
`Deferred Annuity & Deferred Comp. Plans v. Norris, 463
`U.S. 1073, 1079–86 (1983) (applying Manhart to differen-
`tial payout from retirement plans).
`In contrast, where an employer’s policy on its face
`makes no reference to sex, but uses a fact other than sex to
`make the pay decision, the required inquiry is an inquiry
`into the employer’s intent. This is a common meaning of
`“based on” language, as reflected in the quote from Moore
`above, and it is the meaning Supreme Court case law has
`used for this exception in the EPA. The Supreme Court in
`Corning Glass, faced with a policy of paying more for night-
`shift inspection work, and noting that night work may
`carry special burdens, said the question was whether the
`higher pay “was in fact intended to serve as compensation
`for night work, or rather constituted an added payment
`based upon sex.” 417 U.S. at 204.2 The Court in Manhart
`
`2 The Court affirmed the trial court’s finding that the
`Corning Glass policy originated from sex discrimination,
`which became illegal upon the enactment of the EPA in
`1963, and had not been adequately remedied afterwards.
`Id. at 205–10.
`
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`discussed whether the exception applied in terms of
`whether “any factor other than the employee’s sex was
`taken into account” by the employer. 435 U.S. at 712. And
`the usual alternative to a facial-content-or-intent stand-
`ard—a “disparate impact” standard—the Supreme Court
`has said does not apply to this EPA exception. See Smith
`v. City of Jackson, 544 U.S. 228, 239 n.11 (2005) (in ad-
`dressing Age Discrimination in Employment Act, stating:
`“if Congress intended to prohibit all disparate-impact
`claims, it certainly could have done so. For instance, in the
`Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1), Congress
`barred recovery if a pay differential was based ‘on any
`other factor’—reasonable or unreasonable—‘other than
`sex.’”).
`That this intent standard, rather than a standard look-
`ing to differential impact (due, e.g., to past practices), is ap-
`propriate for the last exception in the exception clause of
`the EPA is confirmed by the rest of the clause. The first of
`the exceptions is for “a seniority system.” Congress must
`have recognized, in 1963, that such a system would, for
`many employers, have a highly disparate impact on the
`sexes. See Equal Pay for Equal Work: Hearings on H.R.
`8898 and H.R. 10226 Before the Select Subcomm. on Lab.
`of the H. Comm. on Educ. and Lab., 87th Cong. 165 (1962);
`see also Equal Pay Act of 1962: Hearing on S. 2494 and
`H.R. 11677 Before the Subcomm. on Lab. of the S. Comm.
`on Lab. and Pub. Welfare, 87th Cong. 65 (1962). Yet Con-
`gress provided expressly that seniority was a basis for pay
`differentials that was exempt from the EPA prohibition.
`The kind of impact standard on which the majority here
`relies is out of keeping with that congressional choice. In-
`deed, the last exception’s language, “any other factor other
`than sex” (emphasis added), implies that Congress consid-
`ered seniority itself, despite its disparate impact on the
`
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`BOYER v. US
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`sexes, to be a “factor other than sex.” That judgment, em-
`bodied in the text, should govern the last exception.3
`The government’s position in this case is that its
`longstanding statutory and regulatory policy of basing a
`salary decision on prior pay—giving a higher-than-mini-
`mal “step” within a grade, based on an applicant’s prior
`pay—falls within the last exception of the exception clause
`of the EPA. Under the approach just described, once the
`government asserted the affirmative defense of prior pay
`as a “factor other than sex,” a plaintiff was free to assert
`that the government policy was a pretext—that the use of
`prior pay, despite its facial neutrality, actually rested on
`an intent to discriminate between the sexes. See, e.g.,
`
`
`3 An analogy to the constitutional equal protection
`standard may be apt. The Supreme Court long ago held
`that discriminatory purpose, which is the constitutional
`standard, “implies more than intent as volition or intent as
`awareness of consequences. It implies that the deci-
`sionmaker . . . selected or reaffirmed a particular course of
`action at least in part ‘because of,’ not merely ‘in spite of,’
`its adverse effects upon an identifiable group.” Pers. Adm’r
`of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (internal cita-
`tion omitted). And based on that standard, the Court, in
`agreement with the United States, rejected an equal pro-
`tection challenge to a State’s granting of hiring preferences
`to veterans (whether they were men or women)—a policy
`that is neutral on its face and has a legitimate sex-neutral
`basis, and was found not to have had “the purpose of giving
`an advantage to males as such,” id. at 277—notwithstand-
`ing the evident disparate impact on the sexes and the
`recognition that “[t]he enlistment policies of the Armed
`Services may well have discriminat[ed] on the basis of sex.”
`Id. at 278; see Brief for the United States as Amicus Curiae,
`Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979)
`(No. 78-233), 1978 WL 207300.
`
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`BOYER v. US
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`7
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`Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135,
`142 (2d Cir. 2000) (citing Belfi v. Prendergast, 191 F.3d 129,
`136 (2d Cir. 1999)). If, in response, the government was
`able to show that its real reason was actually the sex-neu-
`tral reason for considering the prior pay of the applicant,
`such as being able to match that prior pay in order to in-
`crease the chance that an applicant who is offered a job
`would take it, the inquiry would end.
`The panel decision instead declares that prior pay is
`often a “proxy” for sex discrimination. Op. at 13. This
`“proxy” notion seems to be a disparate-impact concept that
`is contrary to the case law set forth above. To the extent it
`means pretext, in the proper intent sense, it does not focus
`on the right question—why the Federal government has
`chosen to use prior pay (for 50+ years)—but instead focuses
`on general societal practices.
`In any event, the panel’s citations offered to support its
`presumption of sex discrimination do not provide such sup-
`port. The panel’s statutory construction begins, and ends,
`with its conclusion that “empirical premises recognize the
`simple fact that prior pay can be—and frequently is—a
`proxy for the sex of the worker.”4 Op. at 13. The empirical
`studies relied upon by the panel were not discussed by the
`parties and are not tailored to the EPA question at issue.
`The EPA addresses “the principle of equal pay for equal
`
`
`
`The panel decision, in concluding that prior pay is
`4
`a proxy for sex and the product of sex discrimination, goes
`further than OPM’s study of the question. In its new rule-
`making, OPM concluded that it was eliminating consider-
`ation of prior nonfederal pay because it “may contain or
`exacerbate biases inconsistent with merit system princi-
`ples.” Advancing Pay Equity in Governmentwide Pay Sys-
`tems, 89 Fed. Reg. 5737 (Jan. 30, 2024) (this “may contain
`or exacerbate” finding is repeated throughout).
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`BOYER v. US
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`work regardless of sex,” Corning Glass, 417 U.S. at 190, i.e.,
`equal pay under the same-job limitations specified in the
`statute. But the studies do not. The studies compare all
`working women to all working men without controlling for
`occupation or job type.5 These generalizations are not suf-
`ficient to justify the panel’s conclusion that more than half
`a century of government hiring practices have been in vio-
`lation of the EPA.
`In concluding that pay disparities are a proxy for sex
`discrimination, the panel never meaningfully wrestles with
`the statutory and regulatory evolution of the use of prior
`pay in salary setting. This is the analysis which ought to
`govern the statutory construction inquiry. The EPA was
`enacted in 1963. Just three years later, Congress enacted
`5 U.S.C. § 5333, which authorized OPM (the Civil Service
`Commission at the time) to prescribe regulations and ex-
`pressly permitted OPM to use existing pay as a basis for
`assessing salary when hiring Federal employees. 5 U.S.C.
`§ 5333 (“under regulations prescribed by [OPM] which
`
`
`Amanda Barroso & Anna Brown, Gender Pay Gap
`5
`in U.S. Held Steady in 2020, Pew Research Ctr. (May 25,
`2021),
`https://www.pewresearch.org/fact-
`tank/2021/05/25/gender-pay-gap-facts/) (discussing the dif-
`ference in median hourly earnings between men and
`women who work full or part time in the United States);
`Nat’l Women’s L. Ctr., NWLC Resources on Poverty, In-
`come, and Health Insurance in 2021 (Sept. 13, 2022),
`https://nwlc.org/resource/nwlc-resources-on-poverty-in-
`come-and-health-insurance/ (discussing difference in earn-
`ings from men and women working full time); Jessica
`Semega & Melissa Kollar, Income in the United States:
`2021, U.S. Census Bureau, Current Population Reports, at
`Table A-7
`(Sept. 2022), https://www.census.gov/con-
`tent/dam/Census/library/publications/2022/demo/p60-
`276.pdf (same).
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`provide for such considerations as the existing pay . . . the
`head of an agency may appoint. . . an individual to a posi-
`tion at such a rate above the minimum rate of the appro-
`priate grade as the Office may authorize for this purpose.”)
`(emphasis added). OPM regulations have since that time
`expressly permitted prior pay alone to be the basis for a
`salary determination: “An agency may consider one or more
`of the following factors . . . (2) The candidate’s existing sal-
`ary, recent salary history, or salary documented in a com-
`peting job offer . . .” 5 C.F.R. § 531.212(c) (emphasis
`added).6
`Although the EPA was not extended to cover Federal
`employees until 1974, as the trial court observed, “one
`would be hard-pressed to argue that in the immediate
`wake of its passage of the EPA, Congress via § 5333, en-
`shrined in the primary federal pay statute a policy that
`would be facially discriminatory under the EPA if it had
`applied to federal employees at the time.”7 Boyer v. United
`States, 159 Fed. Cl. 387, 408 (2022). The panel suggests
`that the statutes and implementing regulations do not con-
`flict with its interpretation of the EPA because they do not
`require the use of prior pay alone. Op. at 22. This reading
`of § 5333, however, fails to appreciate that the provision
`doesn’t just say that prior pay may be considered; it clearly
`says that prior pay may be considered alone through the
`
`
`6 See also 38 U.S.C. § 7408; Dep’t of Def., Instruction
`1400.25, Volume 531, DoD Civilian Personnel Manage-
`ment System: Pay Under the General Schedule, at § 3.1
`(Jan. 31, 2020); Veterans Admin., VA Handbook 5007, Pay
`Administration, at ch. 3 § 3(b) (July 6, 2011).
`7 The panel correctly notes that there is a three-way
`circuit split on this legal issue. None of the circuits consid-
`ered the significance of § 5333 for a proper statutory con-
`struction of the EPA because those cases did not involve
`Federal government employers.
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`BOYER v. US
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`use of the disjunctive “or.” OPM’s regulation implementing
`§ 5333 is just as explicit in allowing the use of prior pay
`alone. OPM, exercising the authority expressly delegated
`by Congress for sixty years, allowed salary setting on the
`basis of prior pay alone. 5 C.F.R. § 531.212(c). Notably,
`even after Congress extended the EPA to Federal employ-
`ees, it made no changes to the pay language in § 5333. This
`history should defeat any argument for pretext as a matter
`of law: a Congress adopting the prior pay policy (with its
`evident, legitimate non-sex-based justification), having
`condemned the sex discrimination covered by the EPA,
`cannot plausibly be found to have been really seeking to
`produce that very discrimination in government offices.
`The panel’s statutory analysis fails to meaningfully
`reconcile how the nearly simultaneous enactment of the
`EPA and § 5333 and the longtime OPM rules permitting
`consideration of prior pay alone nonetheless led to the con-
`clusion that Congress intended to preclude consideration of
`prior pay in salary setting and thereby call into question
`both past and future Federal hiring. The panel’s interpre-
`tation, as the government put it, requires “implicit partial
`repeal of at least two Federal statutes and an OPM prom-
`ulgating regulation (affecting millions of Federal employ-
`ees over decades).” Gov. Br. at 33. “[T]he more natural
`reading, and the one that harmonizes the two statutes, is
`to conclude that existing pay alone—at least for purposes
`of the Federal pay system—is a factor other than sex.”
`Boyer, 159 Fed. Cl. at 409.
`THE GOVERNMENT’S NEW IMPOSSIBLE BURDEN
`II.
`The panel concludes that Federal employers cannot
`rely upon prior pay because it is frequently infected by sex
`discrimination and therefore is not a factor other than sex
`in salary setting unless either of two circumstances is
`proven to be present. First, prior pay can be utilized in the
`salary setting process so long as at least one additional fac-
`tor was also considered (the Plus One circumstance).
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`BOYER v. US
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`Second, prior pay can be relied upon if the government
`proves that the prior pay was itself not infected by sex dis-
`crimination (Impossible Burden). Both criteria raise seri-
`ous concerns.
`
`A. Prior Pay Plus One
`After stating that prior pay “frequently is” a proxy for
`sex discrimination, and thus relying on prior pay alone as
`an affirmative defense to the EPA “risks thwarting the
`Act’s most fundamental goal—equal pay for equal work,”
`Op. at 13, the panel pivots and says prior pay can be the
`basis for pay setting as long as at least one additional factor
`was also considered.8 But the panel does not explain how,
`if prior pay is so frequently tainted by sex discrimination,
`combining it with some other consideration transforms it
`into a sex-neutral factor.9 Nor does the panel provide any
`analysis regarding the weight it believes it is appropriate
`for the Federal government to assign to prior pay versus
`the Plus One factor. Since the panel starts with a presump-
`tion about prior pay being a proxy or pretext for sex dis-
`crimination, it is hard to imagine how adding a second
`factor will somehow purge the discrimination. The panel’s
`job is to construe the statute to determine Congressional
`intent, not to make policy determinations about Federal
`hiring practices. We question the legitimacy of the Plus
`One escape valve from the panel’s presumptive EPA
`
`
`8 The panel requires a showing that this other factor
`was “in fact the basis for the decision,” and “evidence that
`the nondiscriminatory reason actually motivated the deci-
`sion to set unequal pay.” Op. at 14–15 (emphasis in origi-
`nal).
`9 Cf. Feeney, 442 U.S. at 277 (“Discriminatory intent
`is simply not amenable to calibration. It either is a factor
`that has influenced the legislative choice or it is not.”).
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`BOYER v. US
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`violation when the government has relied on prior pay in
`pay setting.
`B. Prior Pay Alone (Impossible Burden)
`The panel alternatively holds that prior pay is a factor
`other than sex (and therefore its use does not violate the
`EPA) if the government can prove that an applicant’s prior
`pay was not based on sex.10 For a Federal employee whose
`salary was set on the basis of prior pay alone (and it was
`legal to do so for roughly sixty years), the government must
`now prove that when that employee was hired either from
`a private entity or from another government entity, their
`salary at that separate entity was not based on sex. This
`is quite frankly an impossible task. How can a government
`entity gain access to a prior employer’s pay practices in or-
`der to prove that the prior employer’s salary setting at
`some point in the past was not based on sex? OPM itself
`explains that it cannot acquire third party hiring data in
`order to meet such a burden: “Agencies do not typically
`have access to the information that a previous non-Federal
`employer used to determine a job candidate’s salary.” Ad-
`vancing Pay Equity, 89 Fed. Reg. at 5742.
`The task is not much easier for Federal agency-to-
`agency hires. For example, if the Veterans Administration
`(VA) previously hired an employee from the Department of
`Defense (DOD) and relied upon the DOD salary to set the
`VA salary, as law expressly permitted, the VA has to prove
`that when DOD hired the person and set their salary it was
`not infected somehow by the sex of the individual. This
`
`
`10 The panel requires the employer to “prove” this fact
`as part of their affirmative defense. Op. at 16. The panel
`does not elaborate on what constitutes proof, but “leave[s]
`for future cases to consider what evidentiary showing is
`needed to carry this burden.” Id. at 15.
`
`
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`Case: 22-1822 Document: 56 Page: 16 Filed: 04/11/2024
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`BOYER v. US
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`13
`
`would require the VA to obtain hiring data from DOD re-
`lated to this and similarly situated hires to ascertain
`whether there was a disparity in pay between the sexes in
`the DOD pay setting. How is one Federal agency supposed
`to acquire the salary setting details of a different Federal
`agency from some past time? And since it is likely that the
`Federal employee came from the private (or other non-Fed-
`eral) sector before entering Federal service, and Federal
`pay scales are lock-stepped and structured, how far back
`does the search have to go?
`The government has been permitted, by statute and
`regulation, to consider prior pay alone in setting pay for
`over half a century. The panel’s decision, which creates a
`presumption that prior pay is a proxy for sex discrimina-
`tion, likely renders illegal the pay of “millions of Federal
`employees over the decades.” Gov. Br. at 33. Given the
`investigative impossibility the panel has required to over-
`come its findings about prior pay, it is effectively illegal to
`have used prior pay in setting salary in Federal hires.
`III. SERIOUS IMPACT OF THE PANEL DECISION
`A. Enormous Liability
`This decision creates an immediate potential claim for
`an untold number of the 1.5 million current Federal GS
`employees, and it will undermine OPM’s new regulation
`that went into effect on April 1, 2024. From all we can tell
`at this point, this will have a huge impact on the Federal
`workforce—creating enormous liability for past pay setting
`decisions and confusion over future practices. These re-
`sults alone warrant review by the en banc court.
`The panel opinion creates the potential for massive li-
`ability for past wages by the Federal government. The Fed-
`eral government has long used prior pay alone (as the law
`allowed for the last sixty years), to set the salary of incom-
`ing employees within a grade. In holding those pay setting
`decisions to violate the EPA, the panel opinion creates a
`
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`Case: 22-1822 Document: 56 Page: 17 Filed: 04/11/2024
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`14
`
`BOYER v. US
`
`potential claim for a vast swath of Federal employees. For
`example, suppose a man was hired ten years ago and he
`was given an elevated step within a grade on the basis of
`prior pay alone (which the statute and regulations ex-
`pressly permitted).11 Now suppose it is discovered that his
`salary throughout that time and even now is higher than
`his female co-workers. At least after backing out differ-
`ences due simply to seniority, every one of those female co-
`workers could have an immediate claim against the gov-
`ernment. The result would be two years of backpay and a
`right to be moved immediately to a higher step and pay for
`the remainder of their careers. The EPA commands that
`the cure for an unequal-pay violation be the raising, not
`lowering, of pay.12 And it does not stop there. The EPA
`applies to both men and women. Moore, 66 F.4th at 992.
`If there is a woman in an office who is paid more than her
`male counterparts, the male co-workers could bring the
`same lawsuit—and they too would receive back pay and an
`immediate salary raise. The resulting liability for both
`back and future pay is enormous. And again, under the
`panel’s decision, the government will have no realistic
`means by which to justify its longstanding use of prior pay.
`
`
`11 The panel opinion suggests the government could
`show his prior pay was not based on sex, but as discussed,
`this investigative task is so impractical that the bar is all
`but absolute.
`12 29 U.S.C. § 206(d)(1) (“an employer who is paying
`a wage rate differential in violation of this subsection shall
`not, in order to comply with the provisions of this subsec-
`tion, reduce the wage rate of any employee”); Corning
`Glass, 417 U.S. at 207 (“The purpose of this proviso was to
`ensure that to remedy violations of the Act, ‘(t)he lower
`wage rate must be increased to the level of the higher.’”
`(internal citation omitted)).
`
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`Case: 22-1822 Document: 56 Page: 18 Filed: 04/11/2024
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`BOYER v. US
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`15
`
`B. The Panel Decision Renders OPM’s Rulemaking Illegal
`and Unworkable
`Over the last year, OPM, using the discretion given to
`it by Congress, changed its rule regarding whether prior
`pay can be used for salary setting. OPM’s new rule, which
`is prospective only and not a condemnation of OPM’s own
`past hiring practices, is that agencies “cannot consider a
`candidate’s non-Federal pay history.” Advancing Pay Eq-
`uity, 89 Fed. Reg. at 5738. The rule took effect April 1,
`2024. Now, prior non-Federal pay cannot be considered in
`the salary setting of new Federal employees. OPM ex-
`plained, “salary history is not necessarily a good indicator
`of worker value, experience, and expertise, and it also may
`contain or exacerbate biases.” Id. at 5737. However, OPM
`expressly permits the consideration of prior Federal pay.
`Id. OPM