United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT



                                  No. 97-3145


Jock Orville Autio,        *
                           *
        Plaintiff-Appellee,*
                           *
United States of America, *
                           *
    Intervenor-Appellee,   * Appeal from the United
States
                           * District Court for the
         v.                * District of Minnesota.
                           *
AFSCME, Local 3139,        *
                           *
              Defendant,   *
                           *
State of Minnesota,        *
                           *
         Defendant-Appellant.
                           *


                       Submitted:         March 9, 1998


Filed:       April 9, 1998


Before BEAM and HEANEY, Circuit Judges, and WATERS1,
District Judge.




      1
        The Honorable H. Franklin Waters, United States District Judge for the Western
District of Arkansas, sitting by designation.
HEANEY, Circuit Judge.

    The State of Minnesota appeals the district court’s
denial of its motion to dismiss Jock Orville Autio’s
claims under the Americans with Disabilities Act (ADA)
and other supplemental state law claims.       Minnesota
contends that Autio’s claims should have been dismissed
because   the  district   court   lacked   jurisdiction.
Specifically,  Minnesota   argues   that  the   Eleventh
Amendment acts as a bar to an ADA claim against a state
in federal court.     We conclude that the state was
properly sued in federal court and affirm the district
court.

                           I.

    Plaintiff/appellee, Autio, worked as a store clerk in
the Minnesota State Department of Administration’s
Central Store for Materials Management.        On several
occasions, Autio requested accommodations for various
physical disabilities.    According to Autio, Minnesota
denied his requests. Autio also claims that his union,
AFSCME, Local 3139, did not provide him any assistance in
pursuing his claim.        Autio argues that without
accommodations his employment responsibilities aggravated
his physical condition and caused him injury.       Autio
filed a claim alleging unlawful employment practices in
violation of the ADA, 42 U.S.C. §§ 12101-12213; the
Minnesota Human Rights Act, Minn. Stat. §§ 363.01-363.20;
and the Minnesota Workers’ Compensation Act, Minn. Stat.
§§ 176.001-176.861.




                            2
    Minnesota moved to dismiss on the grounds that the
Eleventh Amendment barred Autio’s ADA claims from being
heard in federal court. Minnesota argued that once the
ADA claims were dismissed, the court lacked subject
matter jurisdiction to hear the remaining state law
claims.    The district court held that Minnesota’s
Eleventh Amendment immunity was lawfully abrogated by
Congress and it could properly be sued in federal court.
Minnesota appeals.




                           3
                                         II.

    Whether a complaint sufficiently states a cause of
action is a legal question subject to de novo review.
Westcott v. Omaha, 

, 1488 (8th Cir. 1990)
(citing Morton v. Becker, 

, 187 (8th Cir.
1986)). In reviewing a motion to dismiss, we assume all
facts alleged by a plaintiff are true. 

only proper if it appears that a plaintiff is unable to
prove any set of facts entitling the plaintiff to relief.

793 F.2d at 187).

     Minnesota argues that the Eleventh Amendment to the
United   States  Constitution   bars   Autio’s  claims.2
Specifically, Minnesota contends that the ADA does not
represent an appropriate congressional exercise of its
enforcement power so as to override its Eleventh
Amendment immunity.

    Under the Eleventh Amendment, a state is not subject
to suit in federal court by its own citizens. Edelman v.
Jordan, 

, 662-63 (1974).        A state can,
however, expressly waive its immunity to suit or Congress
can abrogate a state’s Eleventh Amendment immunity.
Atascadero State Hosp. v. Scanlon, 

, 239-41
(1985) (citations omitted). In this case, both parties
agree that Minnesota has not waived its immunity to suit.



      2
       The Eleventh Amendment provides that “[t]he 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.
                                           4
Therefore, we must determine whether Congress properly
abrogated Minnesota’s Eleventh Amendment immunity.3




      3
        Although Minnesota did not specifically raise Eleventh Amendment immunity
as a defense to Autio’s state law claims in the district court, it has properly raised this
defense on appeal. See Bueford v. Resolution Trust Corp., 

, 485 (8th Cir.
1993) (subject matter jurisdiction may be raised at any time by a party to an action).
Because Minnesota has not consented to suit in federal court based on Autio’s state
law claims, we lack jurisdiction to decide the supplemental state claims. See Pennhurst
State Sch. & Hosp. v. Halderman, 

, 121 (1984) (under the Eleventh
Amendment, a federal court lacks jurisdiction to hear supplemental state law claims
against a state even if the court has jurisidction to hear the federal claims). Therefore,
we only determine whether Congress properly abrogated Minnesota’s Eleventh
Amendment immunity under the ADA.
                                            5
    In Seminole Tribe of Florida v. Florida, 

, 1123 (1996), the Supreme Court set forth a two-part
test to determine whether Congress has properly abrogated
a state’s Eleventh Amendment immunity.         The first
question is whether Congress unequivocally expressed an
intent to abrogate Eleventh Amendment immunity.       

v. Mansour, 

, 68 (1985)). The
second question is whether Congress acted pursuant to a
valid exercise of power. 

to the first question, it is clear that
in enacting the ADA, Congress unequivocally abrogated a
state’s Eleventh Amendment immunity from suit in federal
court. See 42 U.S.C. § 12202 (under the ADA, “[a] State
shall not be immune under the eleventh amendment”).
Second, in determining whether Congress acted pursuant to
a valid grant of power, we look to the Fourteenth
Amendment because the ADA was explicitly enacted to
provide equal protection to those with disabilities. 42
U.S.C. 12101(b)(4).       Section 1 of the Fourteenth
Amendment provides that a state may not “deny . . . any
person within its jurisdiction the equal protection of
the laws.” U.S. Const. amend. XIV, § 1. Section 5 of
the Fourteenth Amendment provides that “Congress shall
have power to enforce, by appropriate legislation, the
provisions of this article.” 

    We now turn to whether Congress properly enacted the
ADA under Section 5 of the Fourteenth Amendment.      In
Katzenbach v. Morgan, 

, 651 (1966), the
Supreme Court set forth a three-part test to determine
whether Congress properly enacted legislation under
Section 5 of the Fourteenth Amendment: (1) whether the

                            6
statute may be regarded as an enactment to enforce the
Equal Protection Clause; (2)




                          7
whether it is plainly adapted in furthering that end; and
(3) whether it is consistent, and not prohibited by, the
letter and the spirit of the Constitution.

    First, the ADA was clearly enacted to enforce the
Equal Protection Clause. 42 U.S.C. § 12101(b)(4) (one
purpose of the ADA was “to invoke the sweep of
congressional authority, including the power to enforce
the fourteenth amendment . . . in order to address the
major areas of discrimination faced day to day by people
with disabilities”). Second, we believe that the ADA was
plainly adapted to enforcing the Equal Protection Clause.
 Relying heavily on City of Boerne v. Flores, 

(1997), Minnesota contends that the ADA is not
“plainly adapted” to enforcing the Equal Protection
Clause because it prohibits more than what a court might
find unconstitutional. In Flores, the Court struck down
the Religious Freedom Restoration Act (RFRA) under
Section 5 of the Fourteenth Amendment because, in part,
the “legislative record lack[ed] examples of modern
instances of generally applicable laws passed because of
religious bigotry. The history of persecution in this
country detailed in the hearings mentions no episodes
occurring in the past 40 years.” 

(citations
omitted).   In this respect, the Court found that, in
passing the RFRA, Congress was attempting to a make a
substantive constitutional change, rather than enforcing
a recognized Fourteenth Amendment right. 

    “While preventative rules are sometimes appropriate
remedial measures, there must be a congruence between the
means used and the ends to be achieved.               The
appropriateness of remedial measures must be considered

                            8
in light of the evil presented.” 

Unlike the RFRA, the ADA clearly chronicles and directly
addresses the discrimination people with disabilities
have experienced and the “evils” those with disabilities
continue to experience in modern day America.        For
example, the ADA and its legislative record illuminate
the fact that approximately 43 million Americans have
disabilities, that disability discrimination is still a
pervasive problem in our society, that people with
disabilities face isolation and segregation in all
aspects of life, including employment, and that such
discrimination costs the United




                           9
States billions of dollars in lost productivity and
dependency each year.     See, e.g., 42 U.S.C. §
                 4
12101(a)(1)-(9).

    In passing the ADA, Congress was not attempting to a
make a substantive constitutional change. Rather, it was
attempting to enforce a recognized Fourteenth Amendment
right: equal protection. In Flores, the Court restated
its long-held view that “[l]egislation which deters or
remedies constitutional violations can fall within the
sweep of Congress’ enforcement power even if in the
process it prohibits conduct which is not itself
unconstitutional and intrudes into ‘legislative spheres
of autonomy previously reserved to the states.’” 

(quoting Fitzpatrick v. Bitzer, 

, 455 (1976)).      Congress is prohibited from
determining    “what    constitutes   a    constitutional
violation,” 

but it may enact legislation
prohibiting conduct which a court itself may not deem


       4
        Before enacting the ADA, Congress conducted exhaustive fact finding as to the
level of disability discrimination in the United States. See, e.g., S. Rep. No. 101-116,
at 6 (1989) (quoting testimony of Timothy Cook of the National Disability Action
Center, concerning the adverse and pervasive effects of disability discrimination); 

(quoting the testimony of Judith Heumann (currently the head of the Office of
Special Education and Rehabilitative Services for the United States Department of
Education), detailing the significant discrimination she faced because of her
disabilities); 

(citing the testimony of a Kentucky parent who was fired from her
job because the son with whom she lived had AIDS); 

(citing testimony
regarding inaccessibility issues faced by those with disabilities). In total, in addition
to conducting numerous hearings, both the House and Senate cited seven reports or
studies that clearly detailed the pervasive and serious effects of disability discrimination
in modern day America. See 

H.R. Rep. No. 101-485, pt. 2, at 28, U.S. Code
Cong. & Admin. News 1990, 267, 309-10 (1990).
                                            10
unconstitutional. We must afford congressional findings
significant deference. Turner Broad. Sys., Inc. v. FCC,

, 1189 (1997) (citation omitted).




                          11
    Unlike the RFRA struck down in Flores, the ADA is
“plainly adapted” as a remedial measure even though each
individual violation of the ADA may not in and of itself
be unconstitutional. The remedies provided in the ADA
are not so sweeping that they exceed the harms they are
sought to redress. Because of the clear “evil” present
in disability discrimination and the well-documented need
for equal protection in this respect, the ADA is plainly
adapted to the end of providing those with disabilities
equal protection under the law.

    Third, the ADA is consistent with the letter and
spirit of the Constitution. In Seminole Tribe, although
striking down a statute abrogating sovereign immunity
under the Indian Commerce Clause, the Court recognized
that Section “5 of the Fourteenth Amendment [has] allowed
Congress to abrogate . . . immunity from suit guaranteed
by that Amendment.” Seminole 

.


    Minnesota argues that Congress has exceeded its power
in passing legislation that protects rights under Section
5 but is not related to a quasi-suspect or suspect
classification.    Nevertheless, other laws passed by
Congress have been upheld as constitutionally abrogating
Eleventh Amendment immunity even though the rights




                           12
protected are not grounded in a quasi-suspect or suspect
classification.5   In this respect, the Seventh Circuit
stated:

      The Eleventh Amendment does not insulate the
      states from suits in federal courts to enforce
      federal statutes enacted under the authority of
      the Fourteenth Amendment. . . .     Although the
      state argues that the ADA is outside the scope
      of the section 5, that     argument is refuted by
      . . . Congress’s concern that disabled persons
      are victims of discrimination.          Invidious
      discrimination by governmental agencies . . .
      violates the      equal protection clause even if
      the discrimination is not racial, though racial
          discrimination was the original focus of the
      clause.    In creating a remedy against such
      discrimination, Congress was acting well within
      its powers under section 5, as the courts have
      concluded with respect to the Age Discrimination
      in Employment Act, which is similar to the ADA
      in forbidding a form of discrimination remote
      from the contemplation of the framers of the
      Fourteenth Amendment.



      5
        For example, four other circuits have addressed the validity of the Age
Discrimination in Employment Act, 29 U.S.C. § 621, and upheld it as a valid exercise
of Congress’s Section 5 power. See Hurd v. Pittsburgh State Univ., 

,
1546 (10th Cir. 1997); Ramirez v. Puerto Rico Fire Serv., 

, 698-700 (1st
Cir. 1983); EEOC v. County of Calumet, 

, 1251-52 (7th Cir. 1982);
Arritt v. Grisell, 

, 1271 (4th Cir. 1977). This issue is currently before
our court in Humenansky v. Regents of the University of Minnesota, No. 97-2302.
Similarly, the four circuits that have addressed the issue have upheld the Individuals
with Disabilities Education Act, 20 U.S.C. § 1400, on the same grounds. See Mitten
v. Muscogee County Sch. Dist., 

, 937 (11th Cir. 1989); Counsel v. Dow,

, 737 (2d Cir. 1988); David D. v. Dartmouth Sch. Comm., 

,
421 n.7 (1st Cir. 1985); Crawford v. Pittman, 

, 1036-38 (5th Cir. 1983).
                                         13
Crawford v. Indiana Dep’t of Corrections, 

,
487 (7th Cir. 1997) (internal citations omitted)
(citations omitted).6




      6
        In addition to the Seventh Circuit, 

, two of our other
sister circuits that have addressed the issue before us have also held that a state may
be properly sued in federal court under the Americans with Disabilities Act. See
Coolbaugh v. Louisiana, 

, at *6-*7 (5th Cir. Feb. 27, 1998); Clark v.
California, 

, 1270-71 (9th Cir. 1997), petition for cert. filed, 

(Oct. 20, 1997) (No. 97-686).
                                           14
    Additionally, in enforcing a disabled person’s
rights, we believe that the ADA is consistent with the
spirit and letter of the Constitution as evidenced by
Supreme Court precedent.      For example, in City of
Cleburne v. Cleburne Living Ctr., 

, 444
(1985) (plurality opinion), the Court reasoned that
although the disabled are not entitled to heightened
scrutiny, “legislation . . . singling out the [disabled]
for special treatment reflects the real and undeniable
differences between the [disabled] and others,” thereby
allowing the disabled equal protection from “invidious
discrimination.” 

Moreover, in Cleburne
the Court underscored Congress’s principal institutional
competence in making decisions concerning the disabled’s
legal treatment: “How this large and diversified group
is to be treated under the law is a difficult and often
a technical matter, very much a task for legislators
guided by qualified professionals and not by the perhaps
ill-informed opinions of the judiciary.” 

.

    Therefore, we hold that the ADA represents a proper
exercise of Congress’s Section 5 enforcement power under
the Fourteenth Amendment. As a result, Minnesota is not
entitled to Eleventh Amendment immunity from actions
brought pursuant to the ADA.

                         III.

    For the reasons discussed    above,   we   affirm   the
district court’s decision.




                           15
A true copy.

    Attest.

        CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                       16