Leslie Boyer v. United States

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
______________________
L ACHLAN W. SMITH , The Kress Building, Wiggins
Childs Pantazis Fisher & Goldfarb LLC, Birmingham, AL,
for plaintiff-appellant. Also represented by J ON C.
G OLDFARB.
K ARA WESTERCAMP , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA B URKE, P ATRICIA M.
MCCARTHY .
D EBRA D'A GOSTINO, The Federal Practice Group, for
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BOYER v. US 2
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 J ANEI AU;
G AYLYNN BURROUGHS , SUNU CHANDY , P HOEBE WOLFE, Na-
tional Women's Law Center.
______________________
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BOYER v. US 3
Before M OORE, Chief Judge, L OURIE, D YK, P ROST , REYNA,
T ARANTO, CHEN, HUGHES , STOLL , CUNNINGHAM , and
STARK, Circuit Judges.1
MOORE, Chief Judge, L OURIE, P ROST , and T ARANTO, Cir-
cuit Judges, dissent from the denial of the sua sponte re-
quest for rehearing en banc.
P ER 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,
I T I S O RDERED T HAT :
The request for rehearing en banc is denied.
April 11, 2024
Date
F OR THE COURT
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, L OURIE, P ROST , and T ARANTO, 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 2
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.
I. CONCERNS WITH THE P ANEL ’S STATUTORY
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 3
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 4
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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BOYER v. US 5
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 6
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 7
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
4 The panel decision, in concluding that prior pay is
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 8
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
5 Amanda Barroso & Anna Brown, Gender Pay Gap
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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BOYER v. US 9
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 10
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.
II. T HE G OVERNMENT ’S N EW I MPOSSIBLE BURDEN
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 11
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 12
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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BOYER v. US 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 I MPACT OF THE P ANEL D ECISION
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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BOYER v. US 14
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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BOYER v. US 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 explains that the “GS system has standardized
pay-setting rules that help promote the equitable treat-
ment among employees . . . Because structured pay sys-
tems minimize discriminatory influence on pay setting,
OPM is not banning consideration of prior Federal pay
when setting pay but is requiring agencies to establish pol-
icies that further promote equity in pay setting.” Id. at
5740.
The panel’s determination that salary setting cannot
be based on prior pay (unless the government proves that
the prior salary was not based on sex) applies equally to
both prior non-Federal (including private and state govern-
ment) pay and prior Federal pay. Under the panel’s inter-
pretation of the EPA, this new rulemaking, and hiring
under it, are subject to challenge for perpetuation of a prac-
tice the panel has determined violates the EPA.
CONCLUSION
This case involves an important legal issue and a
highly consequential resolution by the panel. For at least
the reasons set forth, the resolution raises very serious con-
cerns on the merits. In the circumstances of this case, this
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BOYER v. US 16
request for sua sponte en banc action and its rejection
should not be construed as suggesting that a further re-
quest for en banc consideration by the government accom-
panied by its views on these consequential and important
issues would not receive the court’s full and careful consid-
eration.
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