In 1995, plaintiffs filed suit under the Americans With Disabilities Act (ADA) and several Puerto Rico statutes, contending that an employee suffered injury from exposure to secondhand tobacco smoke while working for the Tourism Company as a casino inspector.  In 1998, the defendant filed a motion for summary judgment asserting that the complaint was barred by the Eleventh Amendment, which prohibits suits by private parties against a state in federal court, without that state’s consent.  The defendant also contended that the company was an “instrumentality” of the state and is, thus, entitled to Eleventh Amendment protection.  The district court denied the motion as untimely; the company sought reconsideration.  Congress has the power to abrogate the Eleventh Amendment’s immunity if two conditions occur.  The first is a clear legislative statement, which is present in the ADA.  The second is that its attempt to abrogate must have been done under proper constitutional authority.  The First Circuit Court of Appeals ruled that the company failed to adequately make its argument that Congress had not properly abrogated — “because the issue of the constitutionality of the ADA’s statutory abrogation was raised belatedly and inadequately, we hold that it was doubly waived.”  Since the ADA’s language does not cover the claims made under Puerto Rico’s statutes, the Court of Appeals remanded those claims for either dismissal or action establishing their viability.  Thus, the judgment of the district court is affirmed in part and vacated in part.

175 F.3d 1, 1999 U.S. App. LEXIS 6236 (U.S.C.A. 1st Cir. 1999).