                       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
