1 * District Judge of the Eastern District of Texas, sitting by designation.

2 Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

-1- UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50583

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES, LOCAL 59, DARIA

BAEZA, DELORES ESTORGA, JUANITA ANAYA,

GUADALUPE VALDEZ and PEDRO ARAUJO, JR.,

Plaintiffs-Appellants,

versus

THE EL PASO CITY/COUNTY HEALTH DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

(EP-96-CV-249-F)

September 29, 1999

Before EMILIO M. GARZA and PARKER, Circuit Judges, and COBB, 1 * District Judge.

COBB, District Judge. 2

Appellants, six employees of the El Paso City/County Health District [Health District],

brought suit under the Americans with Disabilit ies Act against their employer. In addition their union,

the American Federation of State, County and Municipal Empl o yees, Local 59 [American

Federation], sought a declaratory judgment against the Health District. The individual claims were

tried to a jury which found that none of the employees were disabled or subjected to discrimination.

The district cour t denied appellants’ timely submitted motion for judgment as a matter of law and

their motion for a new trial. The district court also denied the union’s action for a declaratory

judgment that the Health District’s employment policies violated the ADA. The court held that since3 In describing the “full duty” rule, Donna Seward, the Chief of Health District’s Women, Infant and

Children (W.I. C.) Division, stated that “when a District employee returns to work from an injury-related

leave, but is medically restricted in his essential job functions, the District must require a full medical

release.” The Health District’s “full-duty” policy is further described in a Memorandum from the Health

District’s Personnel Officer to all Division Chiefs. This memorandum explains that an employee can only

work outside of his or her job description for a maximum of 30 days. The memo further directs that

employees “who are released to duty with restrictions . . . may be allowed to return to work only if they can

perform the essential duties of their job, or if/when the Division Chief determines that the employee can

reasonably be expected to be released . . . to full duty within 30 days.” If an employee does not obtain a

-2- the Health District had recently adopted a policy which complied with the ADA, a declaratory

judgment was no longer necessary. All plaintiffs then timely appealed. With a single exception, we

affirm the district court on all issues. We reverse only the district court’s holding that appellants were

not pr evailing parties and remand for determination of reasonable attorney’s fees to compensate

counsel, to the extent they have succeeded in one of the main objectives of their suit.

I.

Appellants Guadalupe Valdez, Delores Estorga, Daria Baeza and Juanita Anaya b rought

claims of disabilit

y discrimination alleging that the Health District ha d a po licy of automatically

excluding any impaired empl o yee fro m wo rk in violation of the Americans with Disabilities Act

[ADA] 42 U.S.C. § 12101, et seq

. Appellant Pedro Ar aujo brought sui t under 42 U.S.C. §1983

claiming violations of the grievance and hearing requirements of Title II of the ADA as defined in 28

C.F.R. § 35.107(b).

Araujo’s §1983 claim was dismissed and the remaining claims were tried to the jury. The jury

found in the special interrogatories that all individual plaint iffs were qualified for their jobs, and that

none were disabled or suffered from discrimination on the basis of disability.

After the verdict was ent ered, appellants moved to renew their motion for judgment as a

matter of law made at trial. They also moved for a new trial alleging that the verdict was against the

great weight of the evidence and that new evidence had been discovered which would affect the

outcom e of the case. In their motion, the appellants also contended that the court had failed to find

that appellants were prevailing parties despite appellee’s apparent change of policy discussed below.

Pursuant to 28 U.S.C. § 2201, American Federation, in its representational capacity, sought

declaratory judgment that the appellee’s policy of prohibiting injured and disabled employees from

working unless they had full-d ut y medical releases violated the ADA. American Federation also

sought declaratory judgment that appellee has a legal obligation to provide employees a grievance

hearing by which employees may address conduct of the Health District which violates the ADA.

Under the Health District’s past policy, employees with impairments were prohibited from working

in the absence of a “full duty” medical release. The existence of the full duty plan w as admitted in

defendant’s first amended answer and this stipulation was int r oduced at trial. 3 The district courtfull-duty release within 29 days of returning to work he or she “will be released to workers compensation

status on the 30 th day.”

4 The new policy was articulated in an affidavit submitted in response to the court’s July 15, 1997

Show Cause order.

-3- subsequently found that appellee adopted a new ADA compliant policy while this lit igat ion was

pending. 4 Prospective relief through a declaratory judgment no longer being necessary, was denied.

II.

Individual appellants, Daria Baeza, Delores Estorga, Juanita Anaya and Guadalupe Valdez

seek review of the district court’s denial of their Renewed Moti on for Judgment as a Matter of Law

and, in the Alternative, New Trial, in which they contend that the full duty policy violated the ADA

by failing to provide for the individual assessment and accommo dation of disabled employees.

Individual appellant Pedro Araujo seeks review of the trial court’s dismissal of his claim under 42

U.S.C. § 1983 which sought damages for the intentional deprivation of procedural rights secured by

the ADA. American Federation seeks review of the trial court’s denial of declaratory judgment.

A.

In evaluating the denial of a motion for judgment as a matter of law, the standard of review

is de novo

. T

ravis v. Board of Regents of Univ. of Texas

, 122 F.3d 259, 263 (5th Cir. 1997). Such

a motion should only be granted when, after considering all the evidence in the light most favorable

to the non-moving party, the evidence is so overwhelming that reasonable men could arrive at only

one verdict. Boeing Co. v. Shipman , 411 F.2d 365 (5th Cir. 1969) (en banc) (overruled in part on

other grounds by Gautreaux v. Scurlock Marine, Inc. , 107 F.3d 331 (5th Cir. 1997) (en banc)). A

denial of a motion for new trial is reviewable for abuse of discretion. M arcel v. Placid Oil Co. , 11

F.3d 563 (5th Cir. 1994).

Under this standard of review, the issue before us is whether a reasonable jury co uld have

concluded that appellants were not disabled. To prevail on appeal, appellant must show that the jury’s

verdict was against the great weight and preponderance of the evidence.

Appellants argue that the evidence at trial established that appellee had a policy amounting

to a per se violation of the ADA. They further assert that th ey were protected under the ADA

because their employer treated or regarded them as having disabilities. Appellants cla im t heir

employer treated them as disabled in that they were impaired in their abilit y to work

-- a major life

activity.

The Supreme Court addressed the definition of disabilit y in two cases this past term . In

Sutton v. United Airlines

, 119 S.Ct. 2139 (1999), the Court construed major life activity to include

working only in narrow circumstances: “one must be precluded from more than one type of job, a-4-

specialized job, or a particular job of choice.” Id. at 2155. In M urphy v. UPS

, 119 S.Ct. 2133 (1999),

the Court held that “a person is ‘regarded as’ disabled within the meaning of the ADA if a covered

entity mistakenly believes that the person's actual, no nlimit ing impairment substantially limit s one or

more major life activities.” Id. at 2135.

Under these standards of disabilit y there was ample evidence on which the jury might base its

verdict that the impairments described by appellants did not rise to th e standard of protected

disability. The district court did not err in denying the motion for judgment as a matter of law. Nor

did the court abuse its discretion in holding that the affidavit submitted pursuant to the show cause

order was not newly discovered evidence sufficient to justify a new trial.

Appellants argue in the alternative that they need not be disabled to bring their claims. They

urge us to cre at e a cause o f action for nondisabled individuals to bring suit under the ADA citing

Armstrong v. Turner Industries, Inc

., 141 F.3d 554 (5th Cir. 1998) and Griffin v. Steeltek

, 160 F.3d

591 (10th Cir. 1998). We do not address today whether non-disabled plaintiffs are generally

permitted or prohibited from bringing suits under the ADA. Rather, we note that the claims actually

brought by individual plaintiffs in this suit require a showing of disability to establish a prima facie

case and that the jury had sufficient evidence to find that plaint iffs were not disabled. S ee Rogers v.

International Marine Terminals, Inc. , 87 F.3d 755 (5th Cir. 1996).

The individual appellants could not demonstrate disabilit y and therefore could not sustain their

claims. Similarly, since appellant Araujo was unable to establish a prima facie case under §1983, the

court did not err in dismissing his claim.

B.

Appellant also requests reversal of the district court’s denial of his m oti on for decl

aratory

judgment. The statute authorizing declaratory judgments uses permissive, not mandatory, language.

28 U.S.C. § 2201. Whet her and when to issue a declaratory judgment is at the discretion of the

district court. Winton v. Seven Falls Co., 41 F.3d 934 (5th Cir. 1994), aff’d , 515 U.S. 277 (1995).

The standard of review for motions for declaratory judgment is abuse of discretion. Id.

The district court did not abuse its discretion since the request for relief was mooted by

appellees’ voluntary compliance with the requirements of the ADA. Whatever the legal implications

of the Health District employment practice may have been, the policy submitted by affidavit to the

court fully complies with the requirements of the A DA. Declaratory judgments offer strictly

prospe ct ive relief, and, in light of the amended policy, there is no danger of future harm. The

requirement of immediate or threatened injury cannot now be met.

C.

Although the district court did not err in denying claims for damages and declaratory relief,

it did err in refusing to hold that appellants were prevailing parties. In Pembroke v. Wood County

,5 The Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988, was modeled after the attorney's fee

provisions of the 1964 Civil Rights Act, including 42 U.S.C. § 2000e-5(k). See S. Rep. No. 94-1011, 94th

Cong. 2d Sess. 5, reprinted in (1976) U.S. Code Cong. & Admin. News, pp. 5908, 5912. The two

provisions are thus treated identically. Shipes v. Trinity Industries , 883 F.2d 339 n. 3 (5th Cir. 1989).

6 Pembroke concerned a class action challenging jail conditions. Before the suit came to trial, a prison

administrator instituted a total reform of the jail facility which corrected nearly all of the complained of

conditions. Further, the district court found that there was no threat that these types of conditions would

arise in the future and thus they did not pose a continuing threat of harm to the class

members. As a result the court denied as moot appellants claims for declaratory judgment and refused to

award attorney’s fees on the ground that appellants were not a prevailing party. On appeal this court

affirmed the dismissal of the request for declaratory judgment as moot, but reversed on the issue of

prevailing party status and remanded for the determination and award of fees. 981 F.2d 225, 230-31.

-5- 981 F.2d 225 (5th Cir. 1993) this court held in similar circumstances, that attorney’s fees are available

under 42 U.S.C. § 1988 notwithstanding a failu re t o o bt ain any declaratory or monetary relief. 5

Regarding the issue of prevailing party status, we are bound by Judge Wisdom’s opinion. 6

In Pembroke we held that a plaint iff is entitled to prevailing party status if he establishes two

elements: (1) that one of the primary goals of the law suit was achieved, and (2) that the suit itself

caused the defendant to remedy the complained of conditions. 981 F.2d at 230. If the plaintiff can

make this prima facie showing, the burden shifts to t he defendant to show that its conduct was

"wholly g ratui tous." I

d. (citing Associated Builders & Contractors of Louisiana, Inc. v. Orleans

Parish School Board

, 919 F.2d 374 (5th Cir. 1990)). Causation is a question of fact reviewed for

clear error. Id.

In this case, it is clear th at as a result of bringing suit and rigorously pursuing their claims,

appellants achieved one of the goals of their litigation. The district court held as much and erred only

in not recognizing that this achievement entitles appellants to prevailing party status and attorney’s

fees. In its order dated May 15, 1998, the district court noted that the goals of American Federation

had been met completely because t he Health District’s new policy complied with the ADA.

Moreover, the district court held that the Health District must comply with its new policy in order

to fully comply with the terms of the ADA.

It is clear from the record that the polic y change was forcibly extracted from the Health

District by the pressure of the suit. Although appellants did not receive a judgment, they fully

accomplished one of

their main objectives. Appellants are entitled to prevailing party status because

the change in policy and order requiring future compliance with those changes served to “materially

alter the legal relationship between the parties by mo difying the defendant's behavior in a way that

directly benefits the plaintiff.” Estate of Farrar v. Hobby

, 506 U.S. 103, 113 S. Ct. 566, 113 S. Ct.

at 573, 121 L. Ed.2d 494 (1992).7 In Farrar , plaintiff claimed damages of seventeen million dollars and received a total of one dollar

from the jury.

-6- It should be noted that Pembroke distinguished its holding from Farrar

. Farrar held that

technical success on the merits such as an award of nominal damages is sufficient to support

prevailing party status, but where t he quant um of success is negligible, zero dollars may be a

reasonable fee. 7 In finding prevailing party status in P embroke

, Judge Wisdom reasoned that

“[u]nlike Farrar

, changes in the legal relationship between the plaintiffs and defendants in this case

were wrought by the bringing of the litigation itself, not with recovery of monetary damages. Thus,

although the plaintiffs received no monetary award, they are still entitled to an award of reasonable

attorney's fees.” 981 F.2d at 231.

These opinions are harmonious in that they both look to the actual result of the litigation in

the relationship between the parties to assess prevailing party status. The reasoning in P embroke

controls here since appellants prevailed in obtaining prospective relief. Appellants are entitled to

attorney’s fees to the extent they obtained one of the goals of their litigation, but not for the expense

of litigating claims which were ultimately unsuccessful. We REVERSE the district court's denial of

prevailing party status and REMAND for the district court for th e sole purpose to award the

appellants reasonable attorney's fees and costs incurred in obtaining a change of defendant’s policy.

The judgment of the district court is in all other respects AFFIRMED.-7-

EMILIO M. GARZA, dissenting in part:

I respectfully dissent from the majority’s decision to r everse the district court’s ruling on

attorney’s fees. The majority concludes that the district court erred in finding that the plaintiffs were

not “prevailing parties” for purposes of attorneys’ fees under 42 U.S.C. § 1988. However, the

plaint iffs never raised this issue on appeal. Their briefs do not even mention the district court’s

attorney’s fees ruling, must less articulate any grounds for reversal. See FED. R. APP. P. 28(a)(9)

(providing that an appellant’s brief must contain the “appellant’s conten t io ns and the reasons for

them”). Because the appellants failed to properly raise this issue, we should not address it on appeal.

See Trust Co. of La. V. N.N.P., Inc.

, 104 F.3d 1478, 1485 (5 th Cir. 1997)(“[C]ontentions not briefed

are waived and will not be considered on appeal.”). Accordingly, I would affirm the district court

in its entirety.