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Revised March 4, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-60048
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
February 5, 2003
Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.
KING, Chief Judge:
Plaintiff-Appellant United States of America appeals the
order entered by the District Court for the Southern District of
Mississippi dismissing the United States' civil action against
Defendant-Appellee Mississippi Department of Public Safety for
alleged violations of the Americans with Disabilities Act on the
grounds that the suit was barred by the Eleventh Amendment. We

reverse the district court's decision and remand for further
proceedings.
I.
FACTS AND PROCEDURAL BACKGROUND
On May 17, 2000, the United States filed suit alleging that
the Mississippi Department of Public Safety ("MDPS" or "the
Department") had violated the Americans with Disabilities Act
("ADA") by dismissing Ronnie Collins from the training academy of
the Mississippi Highway Safety Patrol on account of his
disability.1 Specifically, the United States alleged that the
MDPS admitted Collins to the training academy and then dismissed
him because of his disability even though he would have been able
to perform the essential functions of the job if the MDPS had
been willing to make reasonable accommodations for his
disability. The United States sought an injunction prohibiting
the MDPS from engaging in unlawful employment practices against
individuals with disabilities and monetary damages and other
compensatory relief for the losses personally suffered by
Collins, including an offer of a position as a law enforcement
officer with retroactive seniority, back pay, and pension and
other employment benefits.
The MDPS moved to dismiss the suit pursuant to FED. R. CIV.
P. 12(b)(6), arguing (among other things) that the Eleventh
Amendment barred the suit. On September 14, 2001, the district
1
Mr. Collins suffers from Type II diabetes.
2

court granted the Department's motion to dismiss, finding that
the United States' claims against the MDPS for monetary damages
and injunctive relief were barred by the Eleventh Amendment. The
district court characterized the United States' action as
essentially an action "on behalf of Ronnie Collins." United
States v. Miss. Dept. of Pub. Safety, 159 F. Supp. 2d 374, 376
(S.D. Miss. 2001). The court acknowledged that the ADA "`can be
enforced by the United States in actions for money damages.'"
Id. at 377 (quoting Bd. of Trs. of the Univ. of Ala. v. Garrett,
531 U.S. 356, 374 n.9 (2001)). However, according to the court,
the United States may do so only by bringing an action to remedy
a "pattern" of intentional discrimination pursuant to Section 707
of the Civil Rights Act, 42 U.S.C. � 2000e-6(a) (2000). Where,
as here, the United States brings an action pursuant to Section
706 of the Civil Rights Act, 42 U.S.C. � 2000e-5(f) (2000), to
remedy an individual instance of discrimination, the court viewed
the action as merely "stepp[ing] into the shoes of a private
individual."2 Id. at 377. "In this capacity, the United States
has no more power to sue a state than the individual it
represents." Id. Accordingly, the court dismissed the United
States' claims for monetary damages and other compensatory relief
as barred by the Eleventh Amendment; it also dismissed the
2
The ADA expressly adopts the power, remedies, and
procedures set forth in the Civil Rights Act of 1964 for
enforcement of its statutory mandates. 42 U.S.C. � 12117(a)
(2000).
3

request for injunctive relief on the grounds that it was brought
against the MDPS itself rather than against a public official as
required by Ex parte Young, 209 U.S. 123 (1908). Id. at 378.
The United States appeals this decision, arguing that the
district court misapplied clearly established Eleventh Amendment
precedent. The MDPS replies that dismissal on sovereign immunity
grounds was appropriate; alternatively, the MDPS argues that the
ADA, as applied to the states, is an unconstitutional exercise of
Congressional power.
II.
WHETHER THE MDPS IS ENTITLED TO ELEVENTH AMENDMENT
IMMUNITY ON THESE CLAIMS
This court reviews de novo a district court order dismissing
a case for failure to state a claim upon which relief could be
granted. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
The Eleventh Amendment states: "The Judicial power of the
United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects
of any Foreign State." U.S. CONST. amend. XI. While the Eleventh
Amendment bars suits by individuals against a state, the Supreme
Court has long recognized that, "[i]n ratifying the Constitution,
the States consented to suits brought by other States or by the
Federal Government." Alden v. Maine, 527 U.S. 706, 755-56 (1999)
(citing Principality of Monaco v. Mississippi, 292 U.S. 313, 329
4

(1934)). Accordingly, "States retain no sovereign immunity as
against the Federal Government." West Virginia v. United States,
479 U.S. 305, 312 n.4 (1987). Recently, in cases invalidating
Congressional attempts to abrogate States' sovereign immunity
from suit by private individuals, the Court has repeatedly
reaffirmed this principle. See Garrett, 531 U.S. at 374 n.9
(noting that the Court's holding that "Congress did not validly
abrogate the States' sovereign immunity from suit by private
individuals for money damages" under the ADA had no impact on the
ability of the United States to enforce the ADA in suits for
money damages); Alden, 527 U.S. at 755-56 (remarking how a "suit
which is commenced and prosecuted against a State in the name of
the United States . . . differs in kind from the suit of an
individual"); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 71
n.14 (1996) (noting that "[t]he Federal Government can bring suit
in federal court against a State" as a method of "ensuring the
States' compliance with federal law").
In spite of these statements, the MDPS argues that it is an
open question whether sovereign immunity should be recognized to
protect states from cases, like this one, in which the federal
government seeks to circumvent the safeguards of the Eleventh
Amendment and obtain personal relief for private individuals. In
support of this argument, the MDPS relies on a host of cases
which have held that a state or federal government, when acting
merely as an agent for one or more citizens rather than as the
5

real party in interest, may not invoke the original jurisdiction
of the Supreme Court. See, e.g., Kansas v. Colorado, 533 U.S. 1
(2001); Pennsylvania v. New Jersey, 426 U.S. 660 (1976); United
States v. Minnesota, 270 U.S. 181, 192 (1924) (affirming the
authority of the United States to bring the suit in question but
conceding that, "if the Indians [were] the real parties in
interest and the United States only a nominal party, the suit
[would not be] within this court's original jurisdiction").
However, none of these cases supports the proposition that
the doctrine of sovereign immunity protects a state entity from
suit in federal court by the federal government to enforce
federal law. The Constitution specifically gives the executive
branch the power to "take Care that the Laws be faithfully
executed." U.S. CONST. art. II, � 3. Therefore, the federal
government always has a real and substantial federal interest in
ensuring the states' compliance with federal law.
Furthermore, the Supreme Court has specifically held that,
in the context of the ADA, the federal government has the
responsibility to determine when it is in the public interest to
sue to vindicate federal law via victim-specific relief. EEOC v.
Waffle House, 534 U.S. 754 (2002):
The [ADA as enforced by Section 706 of the Civil Rights
Act] clearly makes the [federal government] the master of
its own case and confers on the agency the authority to
evaluate the strength of the public interest at stake.
Absent textual support for a contrary view, it is the
public agency's province�not that of the court�to
determine whether public resources should be committed to
6

the recovery of victim-specific relief. And if the
agency makes that determination, the statutory text
unambiguously authorizes it to proceed in a judicial
forum.
Id. at 763. The fact that Collins could not sue the MDPS for the
alleged violation of the law in no way diminishes the United
States' interest in the action or the authority of the United
States to bring suit against the MDPS for the benefit of the
public generally and for Collins' benefit specifically. Nor does
it transform the United States into a mere proxy for Collins.
Collins has no right to compel the United States to bring suit or
to dictate its complaint or prayer for relief in any way.
See Arizona v. California, 460 U.S. 605, 613-14 (1983). In
short, the United States' interest in and control over this case
is entirely real.
The United States is not barred by the Eleventh Amendment
from suing a state to enforce federal law and obtain the relief
authorized by the ADA. The district court erred in granting the
Department's motion to dismiss based on Eleventh Amendment
immunity.3
III.
WHETHER THE ADA AS APPLIED TO THE STATES IS AN
UNCONSTITUTIONAL EXERCISE OF CONGRESSIONAL POWER
3
The Sixth and Seventh Circuits have rejected nearly
identical sovereign immunity challenges to suits brought by the
EEOC pursuant to the Age Discrimination in Employment Act
("ADEA"). EEOC v. Bd. of Regents of the Univ. of Wisc., 288 F.3d
296 (7th Cir. 2002); EEOC v. Ky. Ret. Sys., 16 Fed. Appx. 443
(6th Cir. 2001) (unpublished op.).
7

As we have held that the Eleventh Amendment does not bar
this suit, we will address the Department's alternative argument:
that, as applied to the states, the ADA is an unconstitutional
exercise of Congressional authority. MDPS argues that Congress,
in enacting the ADA, relied exclusively on Section 5 of the
Fourteenth Amendment to apply the ADA to the states; as such, the
ADA as applied to the states is an unconstitutional exercise of
Congressional power.
This argument is flatly contradicted by the statutory
language of the ADA. One of the express purposes of the ADA is
"to invoke the sweep of congressional authority, including the
power to enforce the fourteenth amendment and to regulate
commerce, in order to address the major areas of discrimination
faced day-to-day by people with disabilities." 42 U.S.C.
� 12101(b)(4) (2000) (emphasis added). Thus, Congress' intent in
enacting the ADA was to use both the Fourteenth Amendment and the
Commerce Clause to remedy discrimination. The simple fact that
the ADA applies to the states and aims to eliminate
discrimination does not mean that the ADA can apply to the states
only through an exercise of federal power under the Fourteenth
Amendment. Cf. EEOC v. Wyoming, 460 U.S. 226 (1983) (upholding
extension of the ADEA to the States as a valid exercise of
Congressional power under the Commerce Clause); Katzenbach v.
McClung, 379 U.S. 294 (1964) (finding public accommodations
portion of Civil Rights Act of 1964 to be valid exercise of
8

commerce power). Furthermore, the Supreme Court has repeatedly
upheld federal regulation of the national labor market as a valid
exercise of the commerce power. See, e.g., EEOC v. Wyoming, 460
U.S. at 243 (upholding the ADEA); United States v. Darby, 312
U.S. 100, 117-18 (1941) (upholding the Fair Labor Standards Act).
Of course, to say that the ADA is an exercise of Commerce
Clause power does not mean that it is necessarily a
constitutional exercise of that power. While there is a "time-
honored presumption that [a statute] is a `constitutional
exercise of legislative power,'" Reno v. Condon, 528 U.S. 141,
148 (2000) (quoting Close v. Glenwood Cemetery, 107 U.S. 466, 475
(1883)), the Supreme Court has recently invalidated several
attempts by Congress to regulate, through its Commerce Clause
power, activities that did not truly have an effect on interstate
commerce. See, e.g., United States v. Morrison, 529 U.S. 598
(2000) (invalidating the Violence Against Women Act); United
States v. Lopez, 514 U.S. 549 (1995) (invalidating the Gun-Free
School Zones Act). The MDPS argues that its decisions regarding
hiring and firing in the training academy for the Mississippi
Highway Safety Patrol are purely local and, particularly in light
of this recent shift in Supreme Court jurisprudence, do not have
the kind of substantial impact on interstate commerce that would
9

render them subject to attack under a statute grounded in the
commerce power.4
However, the Supreme Court has recognized that effects on
employment affect commerce. See Morrison, 529 U.S. at 615
(reasoning that Congress could "regulate any crime as long as the
nationwide, aggregated impact of that crime has substantial
effects on employment, production, transit, or consumption")
(emphasis added). The United States presents compelling evidence
supporting the proposition that there is a national labor market
and that even local acts of discrimination, when considered in
the aggregate, can have a substantial effect on that market.
Thus, even if the personnel decisions made in the training
academy are largely local, aggregating their effect with the
effect of potential decisions in job training programs around the
country provides a sufficient basis for Congress to regulate the
activity under the Commerce Clause.
Furthermore, the legislative history of the ADA provides the
type of findings that the Lopez Court said would support an
exercise of the commerce power. See Lopez, 514 U.S. at 562-63:
4
The MDPS also argues that the ADA should not apply here
because there was no employer-employee relationship between the
MDPS and Collins (who was only a trainee in its academy).
However, the plain language of the statute demonstrates that the
ADA covers not only traditional employment activities but also
such things as "job training" � which is precisely what Collins
was attending the academy to receive. 42 U.S.C. � 12112(a)
(2000).
10

Congress normally is not required to make formal findings
as to the substantial burdens that an activity has on
interstate commerce. But to the extent that congressional
findings would enable us to evaluate the legislative
judgment that the activity in question substantially
affected interstate commerce, even though no such
substantial effect was visible to the naked eye, they are
lacking here.
Id. Congress found that "some 43,000,000 Americans have one or
more physical or mental disabilities, and this number is
increasing as the population as a whole is growing older." 42
U.S.C. � 12101(a)(1) (2000). Discrimination against people with
disabilities "costs the United States billions of dollars in
unnecessary expenses resulting from dependency and
nonproductivity." Id. � 12101(a)(9). A Senate committee heard
testimony that "the availability of an increased work force and
the greater productivity that can ensue from our economy as a
whole through opening up these kinds of opportunity [to people
with disabilities], provides reason in and of itself to pursue
this."). Americans with Disabilities Act of 1989: Hearings on S.
933 Before the Senate Comm. on Labor and Human Resources and the
Subcomm. on the Handicapped, 101st Cong., 1st Sess. 208-09 (1989)
(statement of Attorney General Thornburgh). Legislators also
heard testimony that ending workplace disability discrimination
would lead to both increased earnings and increased consumer
spending. Id. at 209. These findings ably demonstrate that
Congress realized the effect that disability discrimination was
11

having (and would continue to have) on interstate commerce in the
absence of the ADA.
Congress rationally concluded that regulation of employment
discrimination was necessary to regulate the national market of
employment. It is not necessary to "pile inference upon
inference" to see the effect of such discrimination on interstate
commerce. Lopez, 514 U.S. at 567. Unlike the statutes at issue
in Morrison and Lopez, the ADA's regulation of employment is a
permissible exercise of Congress' powers under the Commerce
Clause.
IV.
CONCLUSION
The district court erred in granting the Department's motion
to dismiss for failure to state a claim upon which relief could
be granted. We REVERSE the district court's decision and REMAND
for further proceedings. Costs shall be borne by MDPS.
12