IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v\. )

)

MISSISSIPPI DEPARTMENT OF ) CIVIL ACTION NO. 3:00CV377BN

PUBLIC SAFETY )

A Department of the )

State of Mississippi, )

)

Defendant. )

)

**[MEMORANDUM IN REBUTTAL TO DEFENDANT'S RESPONSE TO UNITED STATES'
MOTION TO ALTER OR AMEND JUDGMENT]{.underline}**

Defendant asserts that the Attorney General, in bringing the present
action "on behalf of the United States," Complaint, ¶ 1, is actually
only "represent\[ing\] the interests of one individual," in this case
Ronnie Collins. In so doing, Defendant attempts to distinguish
controlling authority holding that (1) states may not assert sovereign
immunity against the federal government, [see]{.underline} [United
States v. West Virginia]{.underline}, 479 U.S. 305, 312 & n.4 (1987);
[cf.]{.underline} [Alden v. Maine]{.underline}, 527 U.S. 706, 755
(1999), and that (2) federal agencies act "to vindicate the public
interest in preventing employment discrimination" when they enforce
federal employment discrimination laws pursuant to § 706 of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-5, incorporated by reference in §
107(a) of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §
12117(a). [See]{.underline} [General Tel. Co. of the N.W. v.
EEOC]{.underline}, 446 U.S. 318, 326 (1980) (citing, *inter alia*,
[Occidental Life Ins. Co. v. EEOC]{.underline}, 432 U.S. 355, 368
(1977)). According to Defendant, the failure of this Court to comport
with the holdings of these cases cannot be the clear error of law
requiring reconsideration of the Court's Judgment

Defendant misapprehends the import of\--and on occasion
misstates\--these cases. First, in urging contravention of the
long-settled rule that "States have no sovereign immunity as against the
Federal Government," [United States v. West Virginia]{.underline}, 479
U.S. at 312, Defendant appears to distinguish between cases in which the
United States has a "direct" interest in litigation, and cases in which
the federal interest is, presumably, somehow indirect or unclear.
Defendant cites no precedent for this distinction and, indeed, no
principle for such categorization reveals itself among the varied
factual circumstances present in the many cases in which courts have
applied the rule.[^1] Even had such a dichotomy been recognized in the
cases, the Supreme Court has held that the public interest in
enforcement of federal employment discrimination laws is distinct from,
and not derivative of, the interests of those individuals filing
discrimination claims with the EEOC. [See]{.underline} [General Tel.
Co.]{.underline}, 446 U.S. at 326 (noting that § 706 regulatory scheme
allows for both public agency enforcement action and private right of
action to enforce federal employment discrimination law, and stating
that "\[a\]lthough the EEOC can secure specific relief . . . on behalf
of discrimination victims, the agency is guided by 'the overriding
public interest in equal employment opportunity . . . asserted through
direct Federal enforcement'").

Defendant also draws an erroneous distinction between the factual
circumstances of the present case and those present in [General
Telephone]{.underline} and [Occidental Life]{.underline}. In the latter
cases, the EEOC did *not* bring lawsuits under its § 707 "pattern or
practice" authority, as Defendant asserts; instead, the agency filed
complaints premised upon individual claims of sex discrimination
pursuant to its § 706 authority. In the present case, similar to
[General Telephone]{.underline} and [Occidental Life]{.underline}, the
Attorney General has filed a complaint pursuant to § 107(a) of the ADA,
which incorporates and is parallel to the remedies of § 706. That the
present Complaint is premised on a single charge of discrimination filed
pursuant to the ADA, rather than multiple individual charges as in
[General Telephone]{.underline}, is immaterial to whether the Attorney
General represents interests distinct from those of Collins, or, for
that matter, whether Defendant may assert sovereign immunity against the
United States.

Nor does the identity of the employer in public enforcement lawsuits,
whether private entity or government agency, affect the nature and
importance of the public interest in federal government enforcement of
federal employment laws. [Compare]{.underline} [Gen. Tel.
Co.]{.underline}, 446 U.S. 318, 331 (stating, in EEOC lawsuit against
private employer, that "\[t\]he EEOC exists to advance the public
interest in preventing and remedying employment discrimination")
[and]{.underline} [Occidental Life]{.underline}, 432 U.S. at 368
(stating, in private-employer case, that "the EEOC does not function
simply as a vehicle for conducting litigation on behalf of private
parties; it is a federal administrative agency charged with the
responsibility of investigating claims of employment discrimination")
[with]{.underline}, [e.g.]{.underline}, [Chao v. Virginia Dep't of
Transp.]{.underline}, 157 F. Supp.2d 681, 693 (E.D. Va. 2001) (stating,
in action by United States Secretary of Labor seeking to enjoin state
agency employer from violating Fair Labor Standards Act, that
restitutionary injunctions sought by Secretary serve "fundamental"
public interests, and citing [Donovan v. Brown Equip. and Serv. Tools,
Inc.]{.underline}, 666 F.2d 148, 156-57 (5^th^ Cir. 1982)).[^2]

Grant of a motion to alter or amend a final judgment pursuant to Rule
59(e) is appropriate "where the Court has overlooked matters or
controlling decisions which might have materially influenced the earlier
decision." [Park South Tenants Corp. v. 200 Central Park South
Assocs.]{.underline}, 754 F. Supp. 352, 354 (S.D.N.Y. 1991);
[accord]{.underline} [Sedrak v. Callahan]{.underline}, 987 F. Supp.
1063, 1069 (N.D. Ill. 1998); [Quarles v. Smith]{.underline}, No. Civ.A.
96-00104-C, 1997 WL 578707, \*4 (W.D. Va. Aug. 25, 1997). In the instant
case, the Court's Judgment cannot co-exist with the rules of law set
forth in [United States v. West Virginia]{.underline},
[Alden]{.underline}, and [General Telephone]{.underline}. Defendant's
Reply Memorandum appears to argue implicitly that higher court authority
cannot control the outcome of this case unless it is both factually and
legally on point with the present case; for example, that the holding in
[General Telephone]{.underline} does not control this case because that
case involved multiple complainants, or that [EEOC v. Cosmair,
Inc.]{.underline}, 821 F.2d 1085 (5^th^ Cir. 1987) and [Harris v. Amoco
Prod. Co.]{.underline}, 768 F.2d 669 (5^th^ Cir. 1986) do not control
here because those cases involved claims of race discrimination instead
of disability discrimination. But no court has ever followed such an
exceedingly exacting standard for determining whether it must be bound
by the holdings of higher courts; more specifically, such a standard is
not the practice in Fifth Circuit courts. [See]{.underline},
[e.g.]{.underline}, [Cedillo-Gonzalez v. Garcia]{.underline}, 55 F.
Supp.2d 653, 655-58 (W.D. Tex. 1999) (granting 59(e) motion based on
admitted misapprehension of Supreme Court retroactivity precedent).
Thus, although Defendant is correct that no court has held that the
Attorney General may bring a lawsuit pursuant to § 706 to enforce the
ADA against a state government employer since the recent decision in
[Board of Trustees v. Garrett]{.underline}, 121 S. Ct. 955 (2001), was
issued, the existence of a prior case with such a complete factual
congruence, rather than a *material* one, is unnecessary to the Court's
grant of this Motion.

Much more important, nothing in [Garrett]{.underline}, nor in any of the
Supreme Court's other recent cases discussing state sovereign immunity,
suggests that Defendant may ever assert immunity from suit against the
federal government,[^3] including on those occasions when the United
States acts, as it has regularly, to enforce federal employment
discrimination laws pursuant to its § 706 authority. [See]{.underline},
[e.g.]{.underline}, [United States v. Board of Trustees]{.underline},
No. 92 733 WLB, 1995 WL 311336 (S.D. Ill. Jan. 13, 1995); [United States
v. California Dep't of Corrections]{.underline}, CIV. No. S-88-0082 LKK,
1990 WL 145599 (E.D. Cal. Feb. 7, 1990); [United States v. University of
Maryland,]{.underline} 438 F. Supp. 742 (D. Md. 1977). This Court's
opinion to the contrary is a clear error of law which should be vacated.

CONCLUSION

For the reasons stated above, and the reasons stated in its earlier
Memorandum of Authorities supporting this Motion, the United States
respectfully moves the Court to alter or amend the Judgment entered
September 14, 2001, and instead deny Defendant's Motion to Dismiss.

DATED this the day of October, 2001.

Respectfully submitted,

JOHN ASHCROFT

Attorney General of the United States

DUNN LAMPTON RALPH F. BOYD, JR.

United States Attorney Assistant Attorney General

Southern District of Mississippi Civil Rights Division

Cynthia L. Eldridge, AUSA John L. Wodatch, Chief

Office of the U.S. Attorney L. Irene Bowen, Deputy Chief

188 East Capitol Street, Suite 500 Alyse S. Bass

Jackson, Mississippi 39201 Lewis Bossing

Attorneys

Disability Rights Section,

Civil Rights Division,

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 616-9511

**[CERTIFICATE OF SERVICE]{.underline}**

I, LEWIS BOSSING, hereby certify that I have this day mailed, postage
prepaid, a true copy of the foregoing Memorandum in Rebuttal to
Defendant's Response to United States' Motion to Alter or Amend Judgment
to the following:

Rickey T. Moore, Esq.

Office of the Attorney General

P.O. Box 220

Jackson, Mississippi 39205

Dated, this the day of October, 2001.

Lewis Bossing

Trial Attorney

Disability Rights Section

[^1]: [See]{.underline}, [e.g.]{.underline}, [United States v. West
    Virginia]{.underline}, 479 U.S. at 312 (holding West Virginia liable
    for prejudgment interest on debt arising from contractual obligation
    to reimburse United States for services rendered by Army Corps of
    Engineers); [United States v. Minnesota]{.underline}, 270 U.S. 181,
    194-95 (1926) (holding that United States may sue state for
    cancellation of land patents and recovery of value of lands sold,
    even though state was immune from suit by Chippewa Tribe for whose
    benefit United States filed suit); [United States v.
    Michigan]{.underline}, 190 U.S. 379, 396 (1903) (deciding that
    United States could sue Michigan for surplus monies associated with
    ship canal); [United States v. Texas]{.underline}, 143 U.S. 621,
    638-648 (1892) (deciding Supreme Court's jurisdiction to hear
    dispute concerning boundary between state and United States
    territory); [United States v. North Carolina]{.underline}, 136 U.S.
    211, 216-22 (1890) (deciding whether North Carolina must pay
    bondholder United States post-maturity interest on bonds);
    [Mississippi Dep't of Econ. & Comm. Dev. v. United States Dep't of
    Labor]{.underline}, 90 F.3d 110, 113 (holding Mississippi liable for
    prejudgment interest on award to federal government of profits
    earned by state agency while providing federally-subsidized job
    training).

[^2]: In holding, post-[Board of Trustees v. Garrett]{.underline}, 121
    S. Ct. 955 (2001), that Virginia may not assert sovereign immunity
    from the Secretary's suit to enforce the Fair Labor Standards Act,
    the court in [Chao]{.underline} also cites [Marshall v. A & M
    Consol. Indep. Sch. Dist.]{.underline}, 605 F.2d 186, 188-89 (5^th^
    Cir. 1979) ("\[T\]he Fifth Circuit has noted that an action brought
    by the Secretary of Labor under the FLSA is one that is brought by
    the United States, and 'can be in the public interest even if the
    money sued for passes to private individuals.'"), and [Bell Atl.
    Md., Inc. v. MCI Worldcom, Inc.]{.underline}, 240 F.3d 279, 289 n.1
    (4^th^ Cir. 2001) ("A State's sovereign immunity does not preclude
    suits brought in federal court by the federal government . . .
    because inherent in the plan of the Constitutional Convention was
    the surrender by the States of immunity as to these suits.").
    [See]{.underline} [Chao]{.underline}, 157 F. Supp.2d at 695.

[^3]: Indeed, the cases consistently state the opposite.
    [See]{.underline} [Garrett]{.underline}, 121 S. Ct. at 968 n.9
    ("Title I of the ADA still prescribes standards applicable to the
    States. Those standards can be enforced by the United States in
    actions for money damages."); [id.]{.underline} at 969 (Kennedy, J.,
    concurring) (noting that states have consented to suit by federal
    government); [Alden]{.underline}, 527 U.S. at 755 ("In ratifying the
    Constitution, the States consented to suits brought by other States
    or by the Federal Government."); [Seminole Tribe of Florida v.
    Florida]{.underline}, 517 U.S. 44, 71 n.14 (1996) ("The Federal
    Government can bring suit in federal court against a State.").