Number range CHAPTER 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 OF AUTHORITIES IN SUPPORT OF]{.underline}

[UNITED STATES' MOTION TO ALTER OR AMEND JUDGMENT]{.underline}

The United States respectfully moves the Court, pursuant to Federal Rule
of Civil Procedure 59(e), to alter or amend its Judgment dismissing with
prejudice the United States' Complaint. Because the Court's Opinion and
Order conflicts with Supreme Court and Fifth Circuit authority
supporting the United States' suit against Defendant for money damages
and injunctive relief, the Court's Judgment should be altered or amended
to deny Defendant's Motion to Dismiss, thereby correcting a clear error
of law and preventing manifest injustice.

STATEMENT OF THE CASE

On May 17, 2000, the United States filed a Complaint in this Court
alleging that Defendant violated Title I of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12111-12117, by failing to
make reasonable accommodations for, and then discharging, Ronnie
Collins. The Complaint cites as a basis for the United States'
enforcement authority § 107(a) of the ADA, 42 U.S.C. § 12117(a), which
incorporates by reference § 706 of Title VII of the Civil Rights Act of
1964,[^1] 42 U.S.C. § 2000e-5, which in turn provides that the Attorney
General may bring a civil action against a state government agency
believed to have engaged in unlawful employment discrimination.[^2] The
Complaint seeks injunctive relief prohibiting Defendant from engaging in
unlawful employment practices against individuals with disabilities;
equitable "make-whole" relief for Collins, including reinstatement and
back pay; and money damages compensating Collins for his injuries.[^3]

On July 20, 2000, the Court ordered proceedings on the Complaint stayed
pending the Supreme Court's decision in [Board of Trustees v.
Garrett]{.underline}, 121 S. Ct. 955 (2001). The Supreme Court issued an
opinion in [Garrett]{.underline} on February 21, 2001, holding that
individuals may not sue state government employers for money damages
under Title I of the ADA. Defendant then filed a Supplemental Memorandum
to an earlier Motion to Dismiss the Complaint, arguing that, under the
Supreme Court's rationale in [Garrett]{.underline}, the United States
may not sue Defendant for money damages because "the ADA \[is\]
unconstitutional, as to application to the States, in its entirety or
alternatively that the provisions or regulations relied upon by \[the
United States\] are unconstitutional and unenforceable."

On September 14, 2001, this Court granted Defendant's Motion to Dismiss,
stating, in part, that by filing suit pursuant to its enforcement
authority under § 706 of Title VII, as incorporated in § 107(a) of the
ADA, "the United States seeks only to vindicate the rights of an
individual allegedly discriminated against by an agency of the State of
Mississippi in violation of the ADA. . . . In this capacity, the United
States has no more power to sue a state than the individual it
represents. . . . the claims of the United States for money damages are
barred by the Eleventh Amendment." The Court further held that the
United States' claims for injunctive relief were also barred, because
the Complaint did not name as a defendant any official of the
Mississippi Department of Public Safety, in violation of the pleading
requirements for individuals seeking injunctive relief from state
officials set forth in [Ex Parte Young]{.underline}, 209 U.S. 123
(1908).

STANDARD OF REVIEW

Any motion that challenges the correctness of a court's final judgment
order and that is filed within ten days of the entry of the order is
deemed a motion to alter or amend the judgment pursuant to Federal Rule
59(e). [Bass v. United States Dep't of Agriculture]{.underline}, 211
F.3d 959, 962 (5^th^ Cir. 2000) (citing [Harcon Barge Co., Inc. v. D&G
Boat Rentals]{.underline}, 784 F.2d 665, 667 (5^th^ Cir. 1986) (en
banc)). Such a motion should be granted if there is an intervening
change in controlling law; if new evidence, previously unavailable and
materially affecting the judgment, becomes available; or if it is
necessary to grant the motion to correct a clear error of law or prevent
manifest injustice. [Atkins v. Marathon LeTourneau Co.]{.underline}, 130
F.R.D. 625, 626 (S.D. Miss. 1990); [see also]{.underline} [Waltman v.
International Paper Co.]{.underline}, 875 F.2d 468, 473 (5^th^ Cir.
1989).[^4]

ARGUMENT

THE JUDGMENT SHOULD BE ALTERED OR AMENDED BECAUSE IT CONFLICTS WITH
SUPREME COURT AND FIFTH CIRCUIT AUTHORITY SUPPORTING THE UNITED STATES'
SUIT FOR MONEY DAMAGES AND INJUNCTIVE RELIEF AGAINST DEFENDANT

In the present case, the Court denies the applicability of the Supreme
Court's statements in [Garrett]{.underline} that "Title I of the ADA . .
. prescribes standards applicable to the States. Those standards can be
enforced by the United States in actions for money damages."
[Garrett]{.underline}, 121 S. Ct. at 968 n.9. In doing so, the Court
distinguishes between the United States' authority to file a civil
complaint premised upon a charge filed with the EEOC, pursuant to § 706
of Title VII as incorporated into § 107(a) of the ADA, and its authority
to file a complaint alleging a pattern or practice of discrimination
pursuant to § 707 of Title VII, also incorporated by reference into §
107(a).[^5] This distinction, not briefed by the parties, is based upon
a misunderstanding of the federal government's authority to enforce the
federal civil rights laws against the states, and

appears to assume that the United State is a representative of an
individual when it brings a § 706 action. The Court, in effect, holds
that states may assert sovereign immunity against the United States
whenever the United States seeks to vindicate the rights of an
individual by a suit against state government employers for money
damages pursuant to its § 706 authority.

This holding conflicts directly with the Supreme Court's "dispositive"
directive that "States have no sovereign immunity as against the Federal
Government." [United States v. West Virginia]{.underline}, 479 U.S. 305,
312 & n.4 (1987) (citing [United States v. Texas]{.underline}, 143 U.S.
621, 646 (1892)); [see also]{.underline} [Mississippi Dep't of Econ. &
Cmty. Dev. v. United States Dep't of Labor]{.underline}, 90 F.3d 110,
113 (5^th^ Cir. 1996). The Supreme Court has long recognized that,
"\[i\]n ratifying the Constitution, the States consented to suits
brought . . . by the Federal Government." [Alden v. Maine]{.underline},
527 U.S. 706, 755 (1999) (citing [Principality of Monaco v.
Mississippi]{.underline}, 292 U.S. 313, 328-29 (1934)), cited in
[Garrett]{.underline}, 121 S. Ct. at 969 (Kennedy, J., concurring).[^6]
The rule against subsequent assertions of immunity by the states against
the United States retains its vitality because "\[s\]uits brought by the
United States . . . require the exercise of political responsibility for
each \[such\] suit." [Alden]{.underline}, 527 U.S. at 755. Nothing in
[Garrett]{.underline} or in the Supreme Court's other cases deciding
state sovereign immunity questions supports the creation of an exception
to this categorical rule, to be applied when the United States seeks
money damages against a state government employer pursuant to its § 706
authority.

Furthermore, the Court's characterization of this § 706 enforcement
action as one in which "the United States seeks only to vindicate the
rights of an individual allegedly discriminated against by an agency of
the State of Mississippi," conflicts with the Supreme Court's holding in
[General Tel. Co. of the N.W. v. EEOC]{.underline}, 446 U.S. 318 (1980),
that federal agencies enforcing federal employment discrimination laws
pursuant to § 706 act, not only for the benefit of specific individuals,
but "to vindicate the public interest in preventing employment
discrimination." [General Tel. Co.]{.underline}, 446 U.S. at 326. In
[General Telephone]{.underline}, the defendant argued that the EEOC's §
706 lawsuit, premised upon complaints of sex discrimination by several
employees, should be considered a "class action," and thus subject to
the requirements of Federal Rule of Civil Procedure 23.
[Id.]{.underline} at 322-23 & n.5. When bringing a § 706 action, the
defendants argued, the EEOC is merely standing in for the private
interests of the individual employees who benefit from the suit.
[Id.]{.underline} at 326. The Supreme Court rejected this argument,
explaining that the EEOC "sue\[s\] in its own name to enforce federal
law" and "is not merely a proxy for the victims of discrimination."
[Id.]{.underline} at 324, 326. In holding that an EEOC enforcement suit
under § 706 should not be subject to the regulation of class actions
contained in Rule 23, the Supreme Court stated that, even when the EEOC
seeks "specific relief, such as hiring or reinstatement, constructive
seniority, or damages for backpay or benefits denied, on behalf of
discrimination victims, the agency is guided by 'the overriding public
interest in equal employment opportunity . . . asserted through direct
Federal enforcement.'"[^7] [Id.]{.underline} (quoting 118 Cong. Rec.
4941 (1972)); [see also]{.underline} [Occidental Life Ins. Co. v.
EEOC]{.underline}, 432 U.S. 355, 368 (1977) (explaining, in holding that
EEOC § 706 enforcement actions are not subject to state statutes of
limitations, 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 and settling disputes").

The Fifth Circuit has similarly recognized that federal agencies taking
enforcement actions based on individual charges of employment
discrimination do so to advance the public interest in enforcement of
federal antidiscrimination laws. [See]{.underline}, [e.g.]{.underline},
[EEOC v. Cosmair, Inc.]{.underline}, 821 F.2d 1085, 1090 (5^th^ Cir.
1987) (holding that employee, in filing EEOC charge, did not breach
benefits contract provision releasing employer from employment-related
legal claims, because "\[a\] charge not only informs the EEOC of
discrimination against the employee who files the charge . . . but also
may identify other unlawful company actions. . . . \[A\]n employer and
an employee cannot agree to deny to the EEOC the information it needs to
advance this public interest. A waiver of the right to file a charge is
void as against public policy"); [Harris v. Amoco Prod.
Co.]{.underline}, 768 F.2d 669, 683 (5^th^ Cir. 1986) (holding that,
because "the EEOC exists to represent the public interest in equal
employment opportunity," EEOC § 706 actions are not subject to Rule 23
class action requirements whether EEOC is original party plaintiff or
intervenes by permission). [Cf. Donovan v. Cunningham]{.underline}, 716
F.2d 1455, 1462 (5^th^ Cir. 1983) (recognizing, in deciding appeal of
Secretary of Labor's ERISA lawsuit, that "the United States has an
interest in enforcing federal law that is independent of any claims of
private citizens").

Nothing in [Garrett]{.underline}, or in any other Supreme Court or Fifth
Circuit case, suggests that the Attorney General, when acting under his
§ 706 authority to enforce Title I of the ADA by filing a civil lawsuit
for money damages against a government agency employer, is somehow only
stepping into the shoes of a private individual--or, perhaps more
precisely, serving as counsel to such individuals.[^8] Public
enforcement actions pursuant to § 706 against such government employers
serve to help *all* employers "develop a better understanding, a more
decent perspective, for accepting persons with impairments or
disabilities into the larger society." [Garrett]{.underline}, 121 S. Ct.
at 968 (Kennedy, J., concurring).[^9] Because the Court's Order and
Opinion dismissing the Complaint's monetary damages claims contravenes
the holdings of these federal appellate courts as to the United States'
role in federal civil rights law enforcement, it is based upon a clear
error of law.

Additionally, because, as the Supreme Court recognized in [General
Telephone]{.underline}, the United States does not step into the shoes
of a private individual when it files a § 706 lawsuit seeking injunctive
relief, reinstatement, back pay, or "any other equitable relief as the
court deems appropriate," 42 U.S.C. § 2000e-5, it need not comply with
the pleading requirements set forth in [Ex Parte Young]{.underline}, 209
U.S. 123 (1908). The Court's holding dismissing the United States' claim
for injunctive relief because the Complaint does not name a state
official is also clearly erroneous.

Because the Court's opinion conflicts with Supreme Court and Fifth
Circuit precedent, the Judgment is clearly erroneous and warrants
reconsideration. Unless the Judgment is altered or amended, this clear
error will work a manifest injustice in its effect upon the United
States' efforts to enforce federal employment discrimination laws. As
the Supreme Court has recognized, remedies for individuals victimized by
illegal employment discrimination are vital to the public--not merely
private--goals of the antidiscrimination statutes. Back pay, for
example, serves both "deterrence and . . . compensation objectives,"
[McKennon v. Nashville Banner Publ'g Co.]{.underline}, 513 U.S. 352, 358
(1995), because it provides the "spur or catalyst which causes employers
. . . to endeavor to eliminate, so far as possible, \[their
discriminatory practices\]." [Albemarle Paper Co. v. Moody]{.underline},
422 U.S. 405, 417-18 (1975) (quoting [United States v. N.L. Indus.,
Inc.]{.underline}, 479 F.2d 354, 379 (8^th^ Cir. 1973)). Similarly, the
reinstatement of a terminated employee may send a powerful message to an
entire industry that discrimination will not be tolerated and that
disfavored individuals cannot be removed from the workplace.
[See]{.underline}, [e.g.]{.underline}, [Phelps Dodge Corp. v.
NLRB]{.underline}, 313 U.S. 177, 195 (1941) (noting, in labor relations
case, that "\[r\]einstatement may be the effective assurance of the
right of self-organization"). Finally, compensatory damages awards,
while perhaps intended less to sanction wrongdoers than to make victims
whole, have a deterrent effect upon all employers, because they
"compensate" by requiring employers to pay for the harms they cause from
their own coffers. [Landgraf v. USI Film Prods.]{.underline}, 511 U.S.
244, 283 & n.35 (1993) (stating that compensatory damages provisions in
Civil Rights Act of 1991 "can be expected to give managers an added
incentive to take preventive measures to ward off discriminatory conduct
by subordinates *before* it occurs"). The Court's Judgment, prohibiting
the United States from seeking such victim-specific remedies in cases
brought pursuant to § 706, seriously compromises the federal
government's ability to advance the public interest in ending disability
discrimination in all employment settings. [Cf.]{.underline} [EEOC v.
Lockheed Martin Corp.]{.underline}, 116 F.3d 110, 112 (4^th^ Cir. 1997)
(upholding district court's grant of Rule 59(e) motion because manifest
injustice would have resulted from court's misapprehension of
controlling authority "'\[i\]n the context of a public agency trying to
fulfill its statutorily mandated purpose'").

CONCLUSION

For the reasons stated above, 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 September, 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, CYNTHIA L. ELDRIDGE, Assistant United States Attorney, hereby certify
that I have this day mailed, postage prepaid, a true copy of the
foregoing 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 September, 2001.

[                                            ]{.underline}

Cynthia L. Eldridge

Assistant United States Attorney

[^1]: Section 107(a) states:

    > The powers, remedies, and procedures set forth in sections 705,
    > 706, 707, 709, and 710 of the Civil Rights Act of 1964 (42 U.S.C.
    > 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9) shall be the
    > powers, remedies, and procedures this title provides to the
    > \[Equal Employment Opportunity\] Commission, to the Attorney
    > General, or to any person alleging discrimination on the basis of
    > disability in violation of any provision of this Act, or
    > regulations promulgated under section 106, concerning employment.

[^2]: Under § 706, the Attorney General may only bring such an
    enforcement action after a charge is filed with the Equal Employment
    Opportunity Commission (EEOC) by a person alleging that a government
    agency employer has engaged in an unlawful employment practice, and
    after the EEOC, upon investigation and a reasonable cause
    determination, is unable to secure from the employer an acceptable
    conciliation agreement. [See]{.underline} 42 U.S.C. § 2000e-5(f)(1).

[^3]: Section 706(g) authorizes a federal court to award various
    equitable remedies, including injunctive relief, reinstatement, and
    back pay, upon a showing of intentional employment discrimination.
    Additionally, under § 107(a) of the ADA the United States may also
    recover compensatory damages against an employer engaged in
    intentional employment discrimination. [See]{.underline} 42 U.S.C. §
    1981a(a)(2).

[^4]: This Motion may be granted under the third ground stated in
    [Atkins]{.underline} because neither parties' briefing of
    Defendant's Motion to Dismiss discussed whether the United States'
    enforcement authority under § 706 includes the authority to sue
    state government agencies for money damages. [Cf.]{.underline}
    [Atkins]{.underline}, 130 F.R.D. at 625-26 (discussing grounds for
    denial of Rule 59(e) motion).

[^5]: Under § 707,

    > \[w\]henever the Attorney General has reasonable cause to believe
    > that any person or group of persons is engaged in a pattern or
    > practice of resistance to the full enjoyment of any of the rights
    > secured by this subchapter, and that the pattern or practice is of
    > such a nature and is intended to deny the full exercise of the
    > rights herein described, the Attorney General may bring a civil
    > action in the appropriate district court of the United States.

    42 U.S.C. § 2000e-6(a). A § 707 enforcement action, then, is not
    premised upon the filing of a charge with the EEOC.

[^6]: As the Supreme Court stated in [Principality of
    Monaco]{.underline}, "\[t\]he jurisdiction of this Court of a suit
    by the United States against a state . . . . \[w\]hile not conferred
    by the Constitution in express words . . . is inherent in the
    constitutional plan. Without such a provision . . . 'the permanence
    of the Union might be endangered.'" [Principality of
    Monaco]{.underline}, 292 U.S. at 329 (quoting [United States v.
    Texas]{.underline}, 143 U.S. at 645, and citing [United States v.
    North Carolina]{.underline}, 136 U.S. 211 (1890); [United States v.
    Texas]{.underline}, 162 U.S. 1, 90 (1896); [United States v.
    Michigan]{.underline}, 190 U.S. 379, 396 (1903); [Oklahoma v.
    Texas]{.underline}, 258 U.S. 574, 581 (1922); and [United States v.
    Minnesota]{.underline}, 270 U.S. 181, 195 (1926)).

[^7]: As the Supreme Court noted in [General Telephone]{.underline}, the
    regulatory mechanism described in § 706 makes clear that federal
    agencies enforcing employment discrimination laws represent
    interests distinct from those of individual parties filing
    administrative complaints alleging discrimination. Under § 706, an
    aggrieved individual may bring her own action if, for example, "the
    agency has failed to move the case along to the party's
    satisfaction, has reached a determination not to sue, or has reached
    a conciliation or settlement agreement with the respondent that the
    party finds unsatisfactory." [General Tel. Co.]{.underline}, 446
    U.S. at 326 (citing 42 U.S.C. § 2000e-5(f)(1)). The individual party
    may also intervene in the agency enforcement action.
    [Id.]{.underline} In deciding whether an EEOC § 706 action should be
    circumscribed by Rule 23, the Supreme Court explained the rationale
    for these statutory provisions:

    > In employment discrimination litigation, conflicts might arise,
    > for example, between employees and applicants who were denied
    > employment and who will, if granted relief, compete with employees
    > for fringe benefits or seniority. Under Rule 23, the same
    > plaintiff could not represent these classes. But unlike the Rule
    > 23 class representative, the EEOC is authorized to proceed in a
    > unified action and to obtain the most satisfactory overall relief
    > even though competing interests are involved and particular groups
    > may appear to be disadvantaged. The individual victim is given his
    > right to intervene for this very reason. The EEOC exists to
    > advance the public interest in preventing and remedying employment
    > discrimination, and it does so in part by making the hard choices
    > where conflicts of interest exist. We are reluctant, absent clear
    > congressional guidance, to subject § 706(f)(1) actions to
    > requirements that might disable the enforcement agency from
    > advancing the public interest in the manner and to the extent
    > contemplated by the statute.

    [Id.]{.underline} Although the context here differs somewhat from
    that in [General Telephone]{.underline}, this Court's failure to
    similarly read the provisions of § 706 is clearly erroneous, and its
    Judgment should therefore be altered or amended. [Cf.]{.underline}
    [Alvestad v. Monsanto Co.]{.underline}, 671 F.2d 908, 912 (5^th^
    Cir. 1982) (stating, in discussing generally grounds for granting
    motions for reconsideration, that "district courts . . . should
    honor requests to reform a judgment in obvious conflict with a clear
    statutory mandate").

[^8]: Indeed, the Department of Justice itself has recognized, in other
    civil rights law enforcement contexts, that in litigation the
    Attorney General does *not* represent persons filing administrative
    complaints with appropriate federal agencies. [See]{.underline},
    [e.g.]{.underline}, Relationship Between Department of Justice
    Attorneys and Persons on Whose Behalf the United States Brings Suits
    Under the Fair Housing Act, Op. Off. Legal Counsel (Jan. 20, 1995),
    1995 WL 944020, attached to the United States' Motion to Alter or
    Amend Judgment as Appendix A. The language of § 706 offers even less
    support for any argument that the Attorney General represents such
    individuals when enforcing the ADA than does that of the Fair
    Housing Act (FHA): Under the FHA, if the Secretary of Housing and
    Urban Development (HUD) authorizes a civil action after receiving a
    complaint from an aggrieved individual, the Attorney General
    "*shall* commence and maintain . . . a civil action *on behalf of*
    the aggrieved person." 42 U.S.C. § 3612(o) (emphases added). Under §
    706, however, the Attorney General *may* take a civil action after a
    complaint is referred from the EEOC. 42 U.S.C. § 2000e-5(f)(1).
    Nowhere does § 706 state that such action is taken *on behalf of*
    the individual complainant.

[^9]: To the extent that the dicta in [United States v. City and County
    of Denver]{.underline}, 927 F. Supp. 1396, 1399 n.3 (D. Colo. 1996)
    may suggest that the public interest in these and other ADA
    enforcement objectives is not implicated in this § 706 action, such
    dicta is incorrect.