                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 97-30104



     JEFF ARMSTRONG,

                                                 Plaintiff-Appellant,

          versus


     TURNER INDUSTRIES, INC.,

                                                 Defendant-Appellee.




      Appeal from the United States District Court for the
            Middle District of Louisiana, Baton Rouge

                              May 14, 1998

Before GARWOOD, DUHÉ and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

     Plaintiff-appellant Jeff Armstrong (Armstrong) appeals the

magistrate judge’s grant of summary judgment in favor of defendant-

appellee Turner Industries, Ltd. (Turner).

                      Facts and Proceedings Below

     Armstrong     filed   this   suit   after     unsuccessfully    seeking

employment as a pipefitter with Turner, alleging that Turner had

discriminated against him on the basis of disability in violation

of Title I of the Americans with Disabilities Act (ADA).            42 U.S.C.

§§ 12101 to 12117.    Armstrong’s suit asserted two distinct claims.

First, he alleged that he was denied employment because he was

perceived as being disabled.         Second, he alleged that he was
subjected    to    a       pre-offer    medical    examination       and    inquiry   in

violation of section 12112(d). The parties consented to proceeding

before a magistrate judge under 28 U.S.C. § 636(c). The magistrate

judge granted summary judgment in favor of Turner on both claims.

Armstrong    timely         brought     this    appeal,     challenging       only    the

dismissal of the second claim.                  Because Armstrong has failed to

demonstrate that he is entitled to relief in the form of damages,

and because he lacks standing to seek injunctive or declaratory

relief, we affirm.

I. Factual Background

     On June 24, 1994, Armstrong applied for a position with Turner

Industries    as       a    pipefitter.1         Upon   presenting         himself    for

consideration       at       Turner’s     personnel       office,     Armstrong       was

administered a written, skill-based qualification examination.                         He

successfully completed the examination,2 and was told to return

after lunch to finish the application process.                  Upon returning, he

was given several pages of paperwork to fill out.                            Among the

application       forms      was   a    "Second    Injury     Fund    Questionnaire"

(Questionnaire). The first page of the Questionnaire contained the

1

As noted by the magistrate judge, there is some ambiguity in the
record as to the precise date on which Armstrong applied.
Armstrong v. Turner Industries, Ltd., 950 F.Supp. 162, 163 n.3
(M.D. La. 1996). Because the dates are not relevant to the issues
on appeal, we assume for convenience that Armstrong applied on the
date that is listed on the "Second Injury Fund Questionnaire" that
Armstrong filled out on the day of the events in question (June 24,
1994).
2

There is no dispute regarding Armstrong’s qualifications as a
pipefitter. Armstrong, 950 F.Supp. at 164 n.4.

                                            2
inquiry:     "Are   you   bothered   with    or    have   you    ever    had   the

following," followed by a list of approximately seventy ailments

ranging from arthritis to vertigo. The applicant was instructed to

answer with respect to each of the illnesses listed.              On the second

page   of   the   Questionnaire   there     were   several      broad,   general

questions regarding the applicant’s medical history, including

whether the applicant had ever been "a patient in a hospital or

clinic," had ever had surgery, or had ever been hospitalized "for

nervous trouble."      It also asked about the applicant’s worker’s

compensation history.      The last question on the form was:              "Have

you ever had any injury or condition not mentioned on this form?"

In filling out the form, Armstrong indicated that he had not

received, nor was there a claim pending for, workers’ compensation,

and that he did not have any "injury or condition not mentioned" on

the form.3

       When he had finished filling out the forms, Armstrong and

several other prospective employees were taken to a different part

of the building for a brief medical examination.                Each applicant

was visually inspected for scars indicating previous surgery or




3

Armstrong also signed an affirmation appearing at the bottom of the
page that read in part:

       "I have read the above and declare that I have had no
       injury, illness, or ailment other than as specifically
       herein noted. I certify that all information is true and
       accurate to the best of my knowledge. I understand that
       any falsification or misrepresentation will be sufficient
       grounds for my release from employment."

                                     3
serious injury and was asked to provide a urine sample.4                    While

these examinations were being conducted, employees of Turner ran

"background   checks"   on   each    applicant        to   verify   the   medical

information provided on the application forms.5

     Armstrong’s   background       check       indicated   that    a   "possible

asbestos exposure" had been reported in 1991.                   His completed

Questionnaire   made    no   mention       of   any   medical   impairment     or

condition having to do with asbestos exposure.               The medic who had

conducted the visual examinations subsequently brought Armstrong

back into the examination room and informed him of the perceived

discrepancy between the answers provided on the Questionnaire and

the results of the background check.             Armstrong was informed that

his failure to list the asbestos exposure on the Questionnaire

constituted a "falsification" of the form and that his application

for employment was being rejected due to the provision of incorrect

and/or incomplete information.


4

The visual inspection required the removal of most or all of the
applicant’s clothing and was conducted in a private examination
room. The record seems to indicate that the applicants’ saliva may
also have been tested for signs of recent alcohol use.       This,
however, appears to be the extent of the "examination." There is
no indication in the record that any other tests or procedures
often associated with medical examinations (e.g., measurement of
heart rate, blood pressure, body weight, etc.) were conducted.
5

The precise nature of the background check performed is unclear
from the record and briefs. It appears that employees of Turner
submitted the name and social security number of each applicant to
a company that had access to an informational database containing
either medical background or worker’s compensation information (or
both). Each applicant apparently signed a consent form authorizing
the background check.

                                       4
II.   Proceedings Below

      On July 11, 1994, Armstrong filed a charge of discrimination

with the Equal Employment Opportunity Commission (EEOC).       After

receiving a "right-to-sue" letter from the EEOC, he filed the

instant suit on November 23, 1995, alleging two separate violations

of the ADA.   First, Armstrong claimed that Turner had denied him

employment because it perceived him as disabled.          Second, he

alleged that he had been subjected to a preemployment medical

inquiry and examination in violation of 42 U.S.C. § 12112(d)(2) of

the ADA.6   Armstrong characterized his second claim as alleging an

independently-actionable "facial violation" of the ADA.

      After limited discovery and pre-trial activity, Turner moved

for summary judgment.     With respect to Armstrong’s failure-to-hire

claim, Turner asserted that Armstrong was denied employment solely

because he had failed to provide accurate information in filling

out the Questionnaire, and not, as Armstrong alleged, because

Turner had in any way perceived him as being disabled or because he

had a record of disability.7      In moving for summary judgment on

6

Section 12112(d)(2) provides that until a conditional offer of
employment has been extended to an applicant, "a covered entity
shall not conduct a medical examination or make inquiries of a job
applicant as to whether such applicant is an individual with a
disability or as to the nature or severity of such disability."
Section 12112(d)(1) provides that the general prohibition against
discrimination on the basis of disability, contained in section
12112(a), "shall include medical inquiries and examinations."
7

In addition to the summary judgment motion itself, Turner provided
a legal memorandum in support of the motion and both testimonial
(in affidavit and deposition form) and documentary evidence tending
to demonstrate that whenever a discrepancy between the information

                                   5
Armstrong’s second claim, Turner argued that because Armstrong was

not "disabled"         within   the   meaning    of    the   statute,   he    lacked

standing to maintain a cause of action based on Turner’s alleged

violation   of    the     ADA’s    prohibition     of    preemployment       medical

examinations and inquiries.

      Properly viewing the evidence before him in the light most

favorable to Armstrong, the magistrate judge determined that "[t]he

summary judgment evidence shows that the defendant did not form any

attitudes or beliefs about the plaintiff’s ability to function at

work once the possible asbestos exposure was discovered.                 The only

belief formed was the belief that the plaintiff did not truthfully

answer the questions on the [Questionnaire]."                     Armstrong, 950

F.Supp. at 165.        The magistrate judge further concluded that there

was   simply     "no    evidence      that   the      defendant   perceived      the

plaintiff’s exposure to asbestos as substantially limiting him in

his ability to work or engage in any other major life activity."

Id. at 166.       Accordingly, the magistrate judge granted summary

judgment in favor of Turner on the refusal-to-hire claim.8

      In ruling on the second claim, the magistrate judge noted the



provided in the application process and the information generated
through the "background checks" and limited medical examination was
discovered, the applicant or employee who had provided the
incomplete or erroneous information was denied employment or
discharged from employment.

8

There was no assertion, nor any evidence, that Armstrong had (or
that Turner believed he had) a record of an impairment that
substantially limited one or more major life activities so as to
come within the section 12102(2)(B) definition of disability.

                                         6
"absence    of    any   controlling       or    persuasive       authority"    on   the

question of whether the ADA provides a private right of action to

a nondisabled individual who had been subjected to a preemployment

medical     examination      or        inquiry    in     violation        of   section

12112(d)(2).9      Lacking apposite caselaw, the court proceeded to

construe    the    provision      in    light    of     its   text,   purpose,      and

legislative       history,   concluding          that     "the     most    reasonable

interpretation of [§ 12112(d)(2)] is that if a separate claim can

be brought for violation of this section, it must be brought by a

qualified individual with a disability as that term is defined by

the ADA."     Id. at 167.      As the court had already determined that

Armstrong was not disabled within the meaning of the ADA, it

granted summary judgment in favor of Turner on Armstrong’s second

claim and dismissed the case.

III.    Question Presented on Appeal

       Armstrong appeals only the magistrate judge’s ruling that the

ADA does not provide him, as a nondisabled plaintiff, a private

right of action to redress Turner’s alleged violation of section


9

The magistrate judge stated that the "parties did not cite and the
court did not find any cases specifically addressing the
question whether an individual [such as Armstrong] who does not
meet any of the three alternative definitions of disability may
maintain a claim for violation of the ADA’s standards regarding
medical inquiries during the job application process." Armstrong,
950 F.Supp. at 166 (footnotes omitted).
     The magistrate judge noted that Armstrong claimed there was “a
genuine dispute . . . whether defendant made a conditional offer of
employment before asking him to provide a medical history and
submit to a medical examination,” id. at 163, but did not
ultimately resolve that issue. However, Turner concedes that the
record does reflect a factual dispute in that one respect.

                                           7
12112(d)(2)(A).     Armstrong has abandoned his failure-to-hire claim

on   appeal   and     does   not    challenge      the    magistrate          judge’s

determination that Turner’s refusal to employ him was not motivated

by disability.      Likewise, he does not dispute the conclusion that

he is not disabled within the meaning of the ADA; nor does he

challenge the determination that he was never "perceived as" or

"regarded as" being disabled by Turner.            And he has never claimed

that he had (or that Turner believed he had) a record of having a

disabling impairment within section 12102(2)(B).

     As a result, on appeal Armstrong raises the single, discrete

legal question whether the ADA provides a private right of action

for nondisabled job applicants who are subjected to preemployment

medical   examinations       and   inquiries     in     violation        of   section

12112(d)(2)(A).     He asserts that the magistrate judge erred in his

statutory construction of this provision and urges this Court to

reverse on that basis.

     This appears to be a question of first impression among the

circuit   courts,10    and   involves       difficult    issues     of    statutory

interpretation. We are not unmindful either of the significance of

this issue or of the inevitability and necessity of its resolution


10

See Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d
1221, 1229 n.5 (10th Cir. 1997) (declining to decide whether the
ADA provides a cause of action to an unsuccessful job applicant
subjected to a prohibited inquiry). The question, however, has now
been decided by a few district courts.      See, e.g., Griffin v.
Steeltek, Inc. 964 F.Supp. 317 (N.D. Okla. 1997) (holding that the
ADA does not provide a right of action for nondisabled job
applicants who are subjected to preemployment medical examinations
and inquiries in violation of section 12112(d)(2)).

                                        8
in an appropriate case.         Nevertheless, we choose to unravel here

only a few of the many strands interwoven in the tangle of issues

that envelops the question presented.

      Our   partial    reticence      is    occasioned      by   the   policies    of

judicial restraint.         See Manning v. Upjohn Co., 862 F.2d 545, 547

(5th Cir. 1989).       As explained below, we find that, in the context

of this case, Armstrong has not demonstrated any injury redressable

by   damages,    and   he    lacks    standing    to     seek    declaratory      and

injunctive relief, so dismissal of his section 12112(d)(2)(A) claim

was proper in any event, whether or not in some other context a

nondisabled individual might be afforded judicial relief in respect

to a section 12112(d)(2)(A) violation.

                                     Discussion

      Armstrong and amicus EEOC both urge us to reverse the lower

court’s grant of summary judgment by construing section 12112(d) as

providing Armstrong, and other potential litigants, a private right

of action irrespective of disability.                 Neither address with any

specificity what injury Armstrong seeks to redress or what remedy

would be appropriate.         At oral argument, the EEOC suggested that

this Court first determine that the ADA grants Armstrong a cause of

action, thereby reversing the lower court, and then remand for the

determination of appropriate remedies.

      However, we conclude that Armstrong has failed to allege any

compensable     injury   and    lacks      standing    to   seek   injunctive      or

declaratory relief, and, consequently, that any ruling by this

Court as to whether Armstrong has, in the abstract, a cause of


                                           9
action would ultimately be irrelevant to the disposition of this

lawsuit.    While   the   EEOC   is    correct   in   asserting   that   a

determination as to the availability or existence of a cause of

action may be made in isolation, without considering what relief

may (or may not) be available to the plaintiff in the particular

case under consideration, the converse proposition is also true

(and, in the case at bar, provides the appropriate framework for

the resolution of Armstrong’s appeal).11         As the Supreme Court

recognized in Davis v. Passman, 99 S.Ct. 2264, 2274 (1979), "the

question whether a litigant has a ‘cause of action’ is analytically

distinct and prior to the question of what relief, if any, a

litigant may be entitled to receive." The Court elaborated on this

distinction, stating that "cause of action is a question of whether

a particular plaintiff is a member of the class of litigants that


11

For purposes of deciding a particular case, courts of appeal will
occasionally assume arguendo a variety of questions, including,
inter alia, standing to assert a claim, the existence of a cause of
action, a material disputed fact, etc. And just as a court may
assume the prudential standing of a litigant to assert a particular
claim so that it may dispose of a case on the merits, it may assume
the merits to dispose of the case on the question of remedies.
See, e.g., Omnitech International, Inc. v. Clorox Co., 11 F.3d
1316, 1323 (5th Cir. 1994) (court of appeals assumed litigant’s
standing to assert claim, as well as a fact material to the
controversy, in order to reach and resolve case on grounds other
than those relied on by the trial court); Channer v. Hall, 112 F.3d
214, 217 (5th Cir. 1997) (Court would "assume, arguendo, that the
Thirteenth Amendment directly gives rise to a cause of action for
damages under the analysis articulated in Bivens."); State of Texas
v. United States, 106 F.3d 661, 664 n.2 (5th Cir. 1997) ("For
purposes of today’s disposition, we assume, without deciding, that
the plaintiffs have standing."); Cole v. United States Dep’t of
Agriculture, 133 F.3d 803, 808 n.6 (11th Cir. 1998) ("Because we
readily resolve the merits of the case, we assume arguendo that
Cole has standing" and "has not waived the issue" in question.).

                                  10
may, as a matter of law, appropriately invoke the power of the

court; and relief is a question of the various remedies a federal

court may make available."           Id. at 2274 n.18.        The Davis court also

noted that, precisely because the "cause of action" inquiry is

distinct from the "remedies" question, it is logically consistent

for a litigant to have a cause of action but lack a remedy.                          The

appropriate resolution of such a case is summary dismissal.                    As the

Court stated, "[a]lthough petitioner has a cause of action, her

complaint might nevertheless be dismissed under Rule 12(b)(6)

unless it can be determined that judicial relief is available."12

       Applying this analysis to the appeal before us, we choose to

temporarily sever the "analytically distinct" question of whether

the ADA provides Armstrong a cause of action in the abstract from

the question of what remedies, if any, would be available to

Armstrong assuming there were a cause of action, considering the

issues     in   reverse    order.      In    proceeding       in    this   manner,    we

temporarily      (and     solely     for    purposes    of     discussion)     assume

(arguendo) both that, as Armstrong asserts, the ADA provides him

with   a   private      right   of    action     and   that    he    has   adequately

established a violation of 42 U.S.C. § 12112(d)(2)(A).

12

Id. at 2276. Discussing this "analytical distinction" set out in
Davis v. Passman, Justice Brennan elaborated on the issue of
dismissal, stating that "if the plaintiff fails either to plead a
cause of action or to demonstrate the damages are appropriate as a
matter of law, the complaint is dismissed under Federal Rule of
Civil Procedure 12(b)(6). In the first instance, the complaint is
dismissed for ‘failure to state a claim,’ while in the latter
instance, the complaint is dismissed because it is not one ‘upon
which relief can be granted.’" United States v. Stanley, 107 S.Ct.
3054, 3069 n.7 (Brennan, J., dissenting in part).

                                            11
I.    Remedies

      In enacting the ADA, Congress provided that the remedies and

procedures for ADA claims are those that have been provided under

Title VII.       Buchanan, 85 F.3d at 200.       Title I of the ADA, which

deals with employment discrimination, allows a private right of

action to "any person alleging discrimination on the basis of

disability in violation of any provision of this chapter, or [of]

regulations      promulgated    [by     the   EEOC]   .   .   .   ,   concerning

employment."      Section 12117(a).

      Albemarle Paper Co. v. Moody, 95 S.Ct. 2362 (1975), remains

the seminal case defining the remedies appropriate under Title VII.

In Albemarle, the Court established the general rule that in

crafting remedies for employment discrimination individuals injured

by such discrimination are "to be placed, as near as may be, in the

situation [they] would have occupied if the wrong had not been

committed."      Id. at 2372.        This is described as the "make whole"

purpose of Title VII.          Id.     Although Albemarle was a Title VII

case, the principles stated therein provide a useful starting point

for consideration of the remedial aspects of all federal employment

discrimination laws.13

II.    Cognizable Injuries


13

See Robert Belton, Remedies in Employment Discrimination Law § 3.9
(1992) ("Although [Albemarle] and Franks [v.Bowman Transp. Co.]
were decided in the context of Title VII, their substantive
principles are, as a general rule, equally applicable as a useful
starting points in resolving remedial issues in cases brought under
section 1981, the ADEA, and the Equal Pay Act cases.") (footnotes
omitted).

                                         12
       Under the "make whole" remedial theory, a court’s first task

is to determine the injuries caused by discrimination that require

judicial relief.       In other words, the court must ascertain in what

way the plaintiff is not “whole.”                  In the vast majority of

employment discrimination cases, the asserted injury is an adverse

employment decision (e.g., refusal to hire, denial of promotion, or

wrongful     discharge),      allegedly       caused    by   or    "because    of"

discrimination on the basis of a prohibited characteristic or trait

such    as   gender,    race,    religion,      national     origin,    age,   or

disability.     In this sense, the case sub judice, at least as

presented on appeal, presents an atypical and uncommon suit.

Although the original complaint did allege an adverse employment

action——Turner’s       refusal   to    hire    Armstrong     due   to   perceived

disability——this claim was rejected by the court below and that

ruling has not been challenged on appeal.14              The magistrate judge

determined that there was no evidence indicating the employment

action in question was tainted by disability discrimination, and

consequently    it     does   not     constitute    a   compensable     injury.15

14

The original complaint also alleged damages flowing from the
allegedly discriminatory refusal to hire, including "substantial
loss of income," "emotional distress," "pain and suffering."
Because Armstrong chose not to appeal the magistrate judge’s ruling
that Turner’s refusal to hire him was not, in any part, "because
of" unlawful discrimination, he has waived this claim and neither
the adverse employment decision, nor the consequential injuries,
alleged below can constitute a compensable injury unless they were
proximately "caused" by the specific ADA violation asserted on
appeal.
15

The court below concluded that the "only belief [Turner] formed was
that [Armstrong] did not truthfully answer the questions on the

                                        13
Armstrong does not challenge this conclusion on appeal.16


[application] form."    Armstrong, 950 F.Supp. at 165 (emphasis
added). Turner did not perceive or regard Armstrong as disabled or
substantially impaired in any way.        Id.   Further the court
determined that the "summary judgment evidence shows that [Turner]
did not form any attitudes or beliefs about the plaintiff’s ability
to function at work once the possible asbestos exposure was
discovered."   Id.   In sum, the court below concluded that the
information revealed by the unlawful medical inquiry did not lead
Turner to deny Armstrong employment "because of disability," but
rather because of the perception that he "did not truthfully answer
the questions on the form."      Id. at 165.     Armstrong has not
asserted that these conclusions are incorrect or that the record
reflects a genuine dispute of material fact as to them.
16

It might be argued that because the medical inquiry revealed the
discrepancy between the information provided by Armstrong and the
information in the "background check," the inquiry "caused"
Armstrong not to be hired.      In fact, amicus EEOC does make a
related argument in their brief, asserting that "Turner’s failure
to hire Armstrong was caused by its adverse reaction to Armstrong’s
medical information." This assertion is not consistent with the
unchallenged determination of the court below regarding Turner’s
motivation, but even if the EEOC’s contention were correct, it
would not alter the outcome of this appeal. As we made clear in
Buchanan v. City of San Antonio, 85 F.3d 196 (5th Cir. 1996), a
"causal link" must be established "between the specific ADA
violations [alleged] . . . and the injuries sustained," for which
a plaintiff seeks damages. Id. at 200. Under Buchanan, if section
12112(d)(2)(A) were to give rise to a private right of action, any
concomitant liability would be limited by familiar tort principles
such as "proximate cause." It is a well-established principle of
tort law that violation of a statute will not give rise to
liability for resulting injuries unless, inter alia, the plaintiff
was a member of the class of individuals the statute was intended
to protect, and the injury was of the type contemplated by the
statute and resulted from the hazard against which the statute was
intended to protect. See Restatement (Second) of Torts §§ 286 and
874A (1965). See also Gavagan v. United States, 955 F.2d 1016 at
1020-21 (5th Cir. 1992).
     In the case at bar, the harm caused, i.e., an adverse
employment decision, clearly falls within the class of harms
covered by Title I of the ADA. However, this harm did not result
from one of the particular "hazards" against which the ADA was
intended to protect (i.e., employment discrimination on the basis
of disability). The magistrate judge determined, and Armstrong
does not assert otherwise, that Turner’s decision was not caused by
an unlawful discriminatory motive.     Thus, although the medical
inquiry may be construed as having been, in a purely mechanistic

                                14
      Although it is unclear, it appears that Armstrong implicitly

argues (or assumes) that a violation of section 12112(d)(2)(A)

constitutes a compensable injury in fact.         We reject this reading

of   the   provision.   This   Court   has    been   unable   to   find   any

indication either in the text of the ADA or in its legislative

history that a violation of the prohibition against preemployment

medical examinations and inquiries, in and of itself, was intended

to give rise to damages liability.17         This is consistent with the

general analysis and reasoning of our decision in Buchanan, which

dealt with an alleged violation of the same provision that is at




sense, a cause of Turner’s refusal to employ Armstrong, it was not,
in the general tort sense, a legal or proximate cause of Turner’s
decision and thus does not constitute a compensable injury. The
ADA simply cannot be reasonably construed as having been intended
to protect a nondisabled job applicant from not being hired because
a   potential   employer,   incident   to  a   prohibited   section
12112(d)(2)(A) inquiry, either learns that the applicant has an
embezzlement or murder conviction or believes, correctly or
incorrectly, that the applicant has not been completely honest and
forthcoming during the job application process. Moreover, in such
cases, including this one, it is obviously irrelevant to the
resulting failure to employ that the inquiry was not preceded by a
conditional employment offer under section 12112(d)(3).
     As we stated in the context of a similar federal
antidiscrimination statute, the ADA "cannot protect . . . employees
from erroneous or even arbitrary personnel decisions, but only from
decisions which are unlawfully motivated." Bienkowski v. American
Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir.1988) (ADEA case).
17

The magistrate judge found "nothing in the legislative history
which supports the conclusion that Congress intended any job
applicant to have a cause of action for violation of the ADA rules
on preemployment examinations and inquiries."      Armstrong, 950
F.Supp. at 167. Likewise, we are unable to find any support for
the proposition that a violation of the section 12112(d), standing
alone, was intended to give rise to damages liability.

                                  15
issue here.18   We find this approach to be consonant with the

structure of the ADA as well as the principles embodied in the




18

The general analysis in Buchanan seems to imply——or at least is
susceptible to the reading——that a mere violation of section
12112(d)(2)(A) is insufficient to give rise to liability absent the
existence of an actual injury of which the violation is a legal and
proximate cause. In Buchanan, the plaintiff was a patrolman for
the Bexar County Sheriff’s Department who repeatedly applied and
was rejected for a position on the San Antonio police force. 85
F.3d at 197. Eventually Buchanan filed suit alleging that he had
been discriminated against on the basis of disability. The case
went to trial, and, at the end of plaintiff’s evidence, Buchanan
moved for and was granted judgment as a matter of law based on two
specific violations of section 12112(d). Id. at 198. The court
submitted two special interrogatories to the jury on the issues of
causation and amount of damages. Id. The jury answered "yes" to
the first interrogatory, which asked whether Buchanan had
"sustained damages from [the defendant’s] violation of the [ADA],"
and granted $300,000 in compensatory damages. Id. In addition to
the $300,000 in compensatory damages, the district court awarded
back pay, attorneys’ fees, and post-judgment interest. Id.
     On appeal, this Court concluded that Armstrong had, as a
matter of law, established a violation of section 12112(d)(2). Id.
at 199. We then went on to briefly discuss the predicates of a
damages claim based on a violation of that subsection. Id. at 199-
200.      We began by stating that "[a] further gap in support of
[the] judgment is the absence of proof of damage, even if the other
predicates had been established, caused by a premature medical
examination." Id. at 199-200 (emphasis added). We observed that
"compensatory damages, like other damages, are not recoverable
under Title VII (and derivatively under the ADA) unless the
prohibited employment practice was the cause of the applicant’s
rejection."   Id. at 200 (footnote omitted).     In discussing the
possible injuries for which Buchanan might receive compensation, we
mentioned only those associated with the adverse employment
decision alleged.    We made no mention of any possibility that
Buchanan might receive relief in the form of damages absent proof
of actual injury, and we plainly assumed precisely the opposite.
     In the case at bar, Armstrong has not alleged any actual
injury flowing from the alleged section 12112(d)(2)(A) violation,
nor has he directed this Court’s attention to any basis for any
damages relief.    In fact, at oral argument before this Court,
Armstrong’s counsel seemed to admit that, for this very reason,
Armstrong was not entitled to damages relief.

                                16
statute.19     Consequently, we hold that damages liability under

section 12112(d)(2)(A) must be based on something more than a mere

violation of that provision.      There must be some cognizable injury

in fact of which the violation is a legal and proximate cause for

damages to arise from a single violation.20

     This    exhausts   the   various    bases   for   a   damages   claim   by

Armstrong.21   Because Armstrong has not identified a cognizable and


19

We note that in what appears to be the only reported case
construing the Rehabilitation Act regulations on which section
12112(d) is based the court came to a similar conclusion. See Doe
v. Syracuse School Dist., 508 F.Supp. 333 (N.D.N.Y. 1981)
(violative preemployment inquiry held to be "persuasive evidence"
of alleged employment discrimination, but medical inquiry did not,
in and of itself, constitute discriminatory conduct so as to be
compensable under the Rehabilitation Act).
20

This holding can also be explained as an application of the "make
whole" purpose of Title VII remedies. Armstrong is entitled to no
remedy because he has not been injured and has no need of being
made "whole." Suppose Armstrong had been hired and then
brought a suit based on the premature medical examination. To what
relief would he be entitled? A "make whole" remedial scheme would
not provide him with a damages remedy because he already occupies
(in the hypothetical) precisely the same position that he would
have occupied absent the unlawful employment practice. Similarly,
where a plaintiff cannot demonstrate actual injury, providing a
damages remedy for a violation of section 12112(d)(2)(A) would
appear to be inconsistent with the "make whole" theory of equitable
relief espoused in Albemarle. Accordingly, we hold that a mere
violation of section 12112(d)(2)(A) does not automatically, or per
se, give rise to damages liability. We do not, however, foreclose
the possibility of liability based on any injuries legally and
proximately caused by such a violation.
21

He did not allege (or present summary judgment evidence of) any
injury, other than discussed above, arising out of the alleged
section 12112(d)(2)(A) violation, and he has not alleged (or
presented summary judgment evidence of) actions exhibiting "malice
or reckless indifference" even remotely sufficient to approach the
type of conduct required to support punitive damages.

                                    17
compensable injury arising out of the medical examination and

inquiry, or alleged any corresponding damages, he has completely

failed to demonstrate any entitlement to a damages remedy.

IV.   Availability of Injunctive Relief

      The lack of an available damages remedy does not dispose

entirely of Armstrong’s appeal, for he seeks equitable relief as

well.   In his complaint, Armstrong requested "[i]njunctive relief

ordering Turner Industries to cease requiring prospective employees

to complete medical data in their applications."        In oral argument

to this Court, Armstrong’s counsel reiterated this request, arguing

that Armstrong is entitled "as a job applicant" to have employers

abide by the proscription of section 12112(d)(2)(A) and that

Armstrong is entitled to an injunction ordering Turner to "cease

and   desist    from   using   this   employment   practice."   However,

Armstrong has failed to meet the prerequisites for asserting

injunctive relief, and we hold that he lacks the requisite standing

to seek either injunctive or declaratory relief.

      We consider as a threshold matter Armstrong’s standing to seek

equitable      relief.22       The    Supreme   Court   articulated   the

constitutional "preconditions for asserting an injunctive claim in

22

Brown v. Edwards, 721 F.2d 1442, 1446 (5th Cir. 1984). As stated
in Warth v. Seldin, 95 S.Ct. 2197, 2205 (1975), the federal
"judicial power exists only to redress or otherwise to protect
against injury to the complaining party."         We recently re-
emphasized the "case or controversy" requirement that is at the
root of the standing doctrine in Plumley v. Landmark Chevrolet,
Inc., 122 F.3d 308, 312 (5th Cir. 1997), where we stated that to
maintain suit, including one for declaratory or injunctive relief,
a plaintiff "must show that an actual case or controversy under the
ADA exists."

                                      18
a federal forum" in City of Los Angeles v. Lyons, 103 S.Ct. 1660,

1669 (1983), holding that to "satisfy the threshold requirement

imposed by Art. III of the Constitution,” a plaintiff seeking

injunctive    relief    must      "show    that     he    ‘has      sustained    or    is

immediately in danger of sustaining some direct injury’ as the

result of the challenged . . . conduct."23 The Court also clarified

that "[p]ast wrongs do not in themselves amount to that real and

immediate    threat    of    injury     necessary        to   make    out   a   case    or

controversy."24

     The    application      of   this    limitation          of    standing    to   seek

injunctive relief in the Title VII context is illustrated by Fair

Employment Council of Greater Washington, Inc. v. BMC Marketing

Corp., 28 F.3d 1268 (D.C. Cir. 1994), a case that is, in several

relevant    respects,       analogous     to    the   one      sub    judice.        Fair

Employment Council involved suspected violations of Title VII by an

employment    referral       service.          In   order      to    demonstrate       the

discrimination, two black college students were hired by the Fair

Employment Council to act as "testers."                  The two minority testers


23

Id. at 1665 (citations omitted).  Additionally, "the injury or
threat of injury must be both real and immediate, not [merely]
conjectural or hypothetical."    Id. (citations and internal
quotation marks omitted).
24

Id. at 1666. This prerequisite to bringing a claim for injunctive
relief was recently reiterated in Luhan v. Defenders of Wildlife,
112 S.Ct. 2130 (1992), where the Court held that "’[p]ast
exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief . . . if unaccompanied
by any continuing, present adverse effects.’" Id. at 2138 (quoting
O’Shea v. Littleton, 94 S.Ct. 669, 676 (1974)).

                                          19
were paired with two white testers, "equipped with fake credentials

intended to be comparable," and instructed to seek employment

referrals from the agency.       Id. at 1270.     Although all four testers

presented similar credentials and qualifications, both of the white

but neither of the black testers received job referrals.             Id.    On

the basis of this disparate treatment, the Fair Employment Council

and the two black testers brought suit in federal district court

under Title VII.

     In determining whether the two testers had standing to pursue

prospective equitable relief enjoining future discrimination by the

defendant employment agency, the court of appeals held the Lyons

rule applicable, stating that "[t]o pursue an injunction or a

declaratory judgment, the [plaintiffs] must allege a likelihood of

future violations of their rights by [the defendant], not simply

future effects from past violations."            Id. at 1273.   Because the

testers did not allege that they personally would again suffer

injury from, or be subjected to, the defendant’s allegedly illegal

behavior,   the   court   held   that     they   lacked   standing   to   seek

prospective equitable relief in the form of an injunction.            Id. at

1272-74.

     Both the reasoning and holding of Fair Employment Council are

directly applicable to the case at bar.               Armstrong, like the

testers, has alleged only a single, past statutory violation and

does not assert any likelihood that he will be subjected to a

similar violation in the future.           He has not indicated that he

plans to seek employment with Turner again, nor does he purport to


                                     20
represent a specific class of individuals that is in danger of

discrimination from Turner.   Consequently, Armstrong’s allegations

are clearly insufficient under well-established law to support

standing to seek an injunction.25     Although Armstrong did ask for

declaratory relief, we note that for the same reason he lacks

standing to procure injunctive relief he likewise has no standing

to seek declaratory relief.   See, e.g., Brown v. Edwards, 721 F.2d

at 1447; Fair Employment Council of Greater Washington, Inc., 28

F.3d at 1272-1274; Plumley v. Landmark Chevrolet, Inc., 122 F.3d

308 at 312 (5th Cir. 1997).    Armstrong has failed to allege any

probability of future injury, and consequently lacks standing to

seek prospective relief precluding Turner from future violations of

section 12112(d)(2).26

25

The requirement articulated in Lyons is cited with relative
frequency in cases denying injunctive relief. See, e.g., Society
of Separationists, Inc. v. Herman, 959 F.2d 1283, 1286 (5th Cir.
1992); Brown v. Edwards, 721 F.2d 1442, 1446-47 (5th Cir.1984).
Cf. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 n.3 (5th Cir.
1996) (“Jurisdiction over a plaintiff’s claims for future relief is
appropriate only if a reasonable likelihood exists that the
plaintiff will again be subjected to the allegedly unconstitutional
actions.”).
26

The lack of any probable future harm distinguishes the case at bar
from Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d
1221 (10th Cir. 1997), in which the Tenth Circuit held that an
employee had standing to challenge her current employer’s
imposition of a drug disclosure and testing policy. The plaintiff
asserted that the drug disclosure policy violated the ADA’s
prohibition of medical inquiries by employers contained in 42
U.S.C. § 12112(d)(4)(A) and sought an injunction enjoining
enforcement of the policy. The court held that the plaintiff in
Roe had standing to challenge the medical inquiry because she faced
imminent injury if she refused to abide by the policy, and a
favorable decision of the court——in particular an injunction
prohibiting enforcement of the drug disclosure policy——would clearly

                                 21
                           Conclusion

     For the foregoing reasons, the district court’s dismissal of

Armstrong’s suit is



                                                  AFFIRMED.




serve to prevent this injury.   Id. at 1229.

                                22
