                         United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT

                                      ___________

                                      No. 97-1698
                                      ___________

Richard Ray Layton;       Billy R. Penny,           *
                                            *
            Appellants,                                     *
                                            *           Appeal from the United
States
      v.                                    *           District Court for the
                                            *           Western District of
                                                        Arkansas
Ted Elder, as County Judge                  *
of Montgomery County, Arkansas,             *
                                            *
                 Appellee.                                  *
                                      ___________

                         Submitted:     November 20, 1997

                             Filed:     May 6, 1998
                                      ___________

Before RICHARD S. ARNOLD,1 Chief Judge, McMILLIAN, Circuit Judge, and
      STEVENS,2 District Judge.
                                ___________

STEVENS, District Judge.




      1
        The Hon. Richard S. Arnold stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on April 17,
1998. He has been succeeded by the Hon. Pasco M. Bowman II.
      2
       The Hon. Joseph E. Stevens, Jr., United States District Judge for the
Western District of Missouri, sitting by designation.
      Richard Ray Layton and Billy R. Penny brought this action against Ted
Elder, as County Judge of Montgomery County, Arkansas, alleging that the
county discriminated against them in violation of Title II of the Americans
with Disabilities Act, 42 U.S.C. § 12131-12134 (“ADA”) and section 504 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (“section
504").3    Appellants sought declaratory and injunctive relief to remedy
alleged ADA and section 504 violations at the Montgomery County Courthouse.
Following a bench trial, the district court denied appellants’ request for
relief as well as their application for attorneys’ fees. Layton and Penny
appeal and we reverse.

I.   BACKGROUND

      Appellants are disabled veterans.       Richard Ray Layton is a
quadriplegic and confined to a wheelchair. Billy R. Penny suffers from the
conditions of ankylosing spondylitis, psoriatic arthritis, and psoriasis;
due to his conditions, Penny frequently uses crutches and occasionally
uses a wheelchair. Appellants allege that the county discriminates against
them by offering programs and services which are inaccessible to the
disabled in violation of the ADA and section 504.          In particular,
appellants complain that the programs and services offered in the county
courthouse are inaccessible.

      The district court held a bench trial and thereafter made findings
of fact. We recount those findings necessary to our review here. The
court found: On occasion, non-authorized vehicles are parked in the
Montgomery County Courthouse handicapped parking spaces.     At the time
appellants’ lawsuit was filed, the two flights




      3
         Appellants sue Ted Elder, as County Judge of Montgomery County,
Arkansas. The district court construed this as an action against the county pursuant
to Kentucky v. Graham, 473 U.S. 159 (1985). We find no error in the court’s ruling
on this issue.
                                        -2-
of steps leading up to the courthouse were narrow, the wheelchair ramp was
too steep, and the courthouse restrooms were not adequate to accommodate
a wheelchair.4 On August 14, 1995, appellant Layton wished to attend a
meeting of the Montgomery County Quorum Court conducted at the county
courthouse in order to request that the county pave the road in front of
his house. Judith Layton, appellant’s wife, had difficulty locating a
handicapped parking space prior to the meeting, and Layton was physically
unable to attend the meeting because it was held on the second floor of the
building, to which there is no access for the mobility impaired.         In
December of 1995, Layton was required to attend court at the county
courthouse on a hunting violation citation. Because there is no wheelchair
access to the courtroom on the second floor of the building, the presiding
judge conducted court in the first floor hallway to accommodate appellant.
Appellant Penny was not denied access to the courthouse. Neither Layton
nor Penny requested accommodation or suggested an alternative site for any
Montgomery County services, activities, or programs for which they were
eligible.

      After reviewing the evidence presented in this case, the district
court concluded that entry of a mandatory injunction was not appropriate.
It found that the circumstances surrounding Layton’s single exclusion from
the Quorum Court meeting were not sufficiently compelling to warrant
equitable relief. The court noted that there was no evidence that Layton
alerted the county that he intended to attend the Quorum Court meeting or
ever requested accommodation for his attendance. Furthermore, the court
found that there was no evidence that the accommodation provided to Layton
when he appeared in court on his hunting violation was inadequate. Lastly,
the court noted that the county had made dutiful progress to remedy the
asserted violations by: 1) adopting a written policy expressing its intent
to comply with the ADA; 2) forming




       4
         The district court failed to specify in its opinion the basis of its conclusion
that the wheelchair ramp was too steep and the courthouse restrooms were not
adequate to accommodate a wheelchair.
                                            -3-
the requisite oversight Board; 3) developing a grievance procedure; and 4)
initiating the removal and/or modification of barriers limiting access to
the county facilities and services provided therein.        Therefore, the
district court concluded that under the totality of the circumstances a
mandatory injunction was not required.

      The district court also denied appellants’ motion for attorneys’ fees
on the grounds that they could not be considered the “prevailing parties”
because they had not obtained a consent decree, a settlement, or an
enforceable judgment against the county.
II. DISCUSSION

      As a preliminary matter the court will address appellee’s contention
that this appeal is moot in light of the improvements made by Montgomery
County    to upgrade the accessibility of its government services and
programs. In order to demonstrate that this appeal is moot by virtue of
its voluntary actions, the county must prove that it is “absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to
recur.” See Comfort Lake Ass’n, Inc. v. Dresel Contracting, Inc., Nos. 96-
3654, 96-3919, 96-4220, 1998 WL 92213, at * 3 (8th Cir. Mar. 5, 1998)
(citing United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199,
203 (1968); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)).

      One of appellants’ primary complaints in this lawsuit is that the
services, programs, and activities, including court proceedings, held on
the second floor of the county courthouse are not accessible to citizens
with mobility impairments.     The steps taken by the county towards ADA
compliance, while commendable, have not addressed this problem. Therefore,
this appeal clearly cannot be considered moot.

      Turning now to the merits of the appeal, we review the district
court’s decision to deny appellants’ request for mandatory injunctive
relief for an abuse of discretion. Smith v. Arkansas Dep’t of Correction,
103 F.3d 637, 644 (8th Cir. 1996). “An abuse




                                    -4-
of discretion occurs if the district court rests its conclusion on clearly
erroneous factual findings or if its decision relies on erroneous legal
conclusions.” International Ass’n of Machinists & Aerospace Workers v. Soo
Line R.R., 850 F.2d 368, 374 (8th Cir. 1988) (en banc). Appellants contend
that the district court abused its discretion by not ordering mandatory
injunctive relief after finding ADA and section 504 violations at the
county courthouse.

      Title II of the ADA states in pertinent part: “[N]o qualified
individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by such entity.     42 U.S.C. § 12132 (1994).      Similarly
section 504 provides: “No otherwise qualified individual with a disability
. . . shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.”   29 U.S.C. § 794(a) (1994).     The rights, procedures, and
enforcement remedies under Title II are the same as under section 504.
Pottgen v. Missouri State High Sch. Activities Ass’n, 40 F.3d 926, 930 (8th
Cir. 1994). To establish a violation of the Acts, one or more of the
appellants must demonstrate: 1) he is a qualified individual with a
disability; 2) he was excluded from participation in or denied the benefits
of a public entity’s services, programs, or activities, or was otherwise
discriminated against by the entity; and 3) that such exclusion, denial of
benefits, or other discrimination, was by reason of his disability. See
Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 428 (5th Cir. 1997);
Tyler v. City of Manhattan, 857 F. Supp. 800, 817 (D. Kan. 1994).

      The district court found that appellants are qualified individuals
with a disability as defined in 42 U.S.C. § 12131(2), that Montgomery
County is a public entity as defined in 42 U.S.C. § 12131(1), and that
Layton had been excluded from a session of the Montgomery County Quorum
Court because of his disability.     Therefore, the court concluded that
plaintiffs had established a statutory violation. We find no error in the




                                    -5-
court’s ruling on this issue. However, the court went on to hold that
under the circumstances mandatory injunctive relief was not warranted and,
in our view, this is a clearly erroneous legal conclusion.

      Once a party has demonstrated actual success on the merits, the court
must balance three factors to determine whether injunctive relief is
appropriate: (1) the threat of irreparable harm to the movant; (2) the harm
to be suffered by the nonmoving party if the injunction is granted; and (3)
the public interest at stake. See Fogie v. Thorn Americas, Inc., 95 F.3d
645, 654 (8th Cir. 1996) (citing Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531, 546 n.12 (1987)).

      Appellants have succeeded on the merits of their claim, and they will
suffer substantial irreparable harm if the programs, services, and
activities held in the Montgomery County Courthouse are not made accessible
as required under the statutes. Furthermore, public interest strongly
favors mandating accessibility. When these factors are balanced against
the harm to the county of making its programs, services, and activities
accessible the balance tips heavily in favor of granting appellants the
relief they request.5 Therefore, it was an abuse of discretion for the
court to deny appellants mandatory injunctive relief.

      In accordance with this opinion, this case is remanded to the
district court for entry of an injunction mandating that the county make
each county service, program, and activity, when viewed in its entirety,
readily accessible and usable by individuals with disabilities in
accordance with 28 C.F.R. § 35.150. The regulations give public entities
substantial latitude in determining how they will comply with the Acts.
We emphasize, however, that if the county intends to continue using the
county courthouse




      5
        We note that the county does not argue that compliance with 28 C.F.R. §
35.150 would fundamentally alter the nature of a service, program, or activity of the
county or would result in undue financial and administrative burdens.
                                         -6-
to provide services, programs, and activities, it must make the parking
accommodations and the building accessible to individuals with disabilities
in accordance with 28 C.F.R. § 35.151.

      Because appellants have succeeded on the merits of their
discrimination claim they are the prevailing parties and are entitled to
an award of attorneys’ fees. See Pedigo v. P.A.M. Transp., Inc., 98 F.3d
396, 397-98 (8th Cir. 1996). On remand the district court shall determine
the amount of fees to which appellants are entitled and enter an order
awarding them the same.

III. CONCLUSION

      For the foregoing reasons, the decision of the district court is
reversed and the case remanded for further proceedings consistent with this
opinion.


     A true copy.

           ATTEST:

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




                                    -7-
