Whether a state is immune from suit under the Eleventh Amendment in an action under the Rehabilitation Act when the cause of action is based on the standards of the Americans with Disabilities Act

QUESTIONS PRESENTED Pertinent to this petition, the petitioner’s complaint against the Wyoming State Department of Health alleged as follows: This is a civil action arising under the laws of the United States and is brought pursuant to the Rehabilitation Act of 1973, 29 U.S.C. §793 and 29 U.S.C. §794, the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §§12101 et seq.), the Civil Rights Act of 1964 codified at 42 U.S.C. §§2000e et seq. This court has jurisdiction of the claims pursuant to 28 U.S.C. §§1331 and 1343. The defendant answered the complaint by asserting Eleventh Amendment Immunity as an affirmative defense under Rule 8 of the F-R.Civ.P. but offered no evidence that it was not a recipient of Federal Funds. The District Court Ruled that the State was immune which was affirmed by the Tenth Circuit Court of Appeals. The questions presented are: 1. In an action against a State under the Rehabilitation Act of 1973 as amended, is the State immune from suit under the Eleventh Amendment when the cause of action is couched under the “standards” of the Americans with Disabilities Act pursuant to 29 U.S.C. §794(d)? 2. Did the defendant State of Wyoming waive its immunity defense by litigating the merits of the matter while failing to present evidence that it did not receive federal funds? li QUESTIONS PRESENTED — Continued 3. Is Eleventh Amendment Immunity a question of subject matter jurisdiction or is it an affirmative defense which may be waived? iii STATEMENT OF RELATED CASES The related cases in this matter are: JANA GARCIA, Plaintiff v. WYOMING DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant; Case No. 2:19-CV-159 SWS, United States District Court for the District of Wyoming. JANA GARCIA, Plaintiff v. WYOMING DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant; Case No. 20-8052, United States Court of Appeals for the Tenth Circuit (D.C. No. 2:19-CV000159 SWS (D. Wyo.).