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 defendantappellee 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 was1

As noted by the magistrate judge, there is some ambiguity in the

reco rd 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 subjected to a pre-offer medical examinatio n 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 becaus e 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 pipefit ter. 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 sev eral pages of paperwork to fill out. Among the

application forms was a "Second Injury Fund Questionnaire"

(Questionnaire). The first page of the Questionnaire contained the3

Armstrong also signed an affirmation appearing at the bottom of the

page that read in part:

"I have read the a bove and declare that I have had no

i njury, 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 inquir y: "Are you bothered with or have you ever had the

following," followed by a lis t 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 ther e 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 indica ting previous surgery or4

The visual insp ection 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.

, measureme nt of

heart rate, blood pressure, body weight, etc.) were conducted.

5

The precise nature of the background check perfo rmed 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 ser ious injury and was asked to provide a urine sample. 4 While

these examinations were being conducted, employees of Turner ran

"backgr ound 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 m ade 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.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 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 h im as disabled. Second, he

alleged that he had been subjected to a preemploymen t 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 informa tion in filling

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

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

ha d a record of disability. 7 In moving for summary judgment onprovided in the application process and the information generated

through the "background checks" and limited medical examination was

discove red, 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 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 preemploym ent medical

examinations and inquiries.

Properly viewing the evidence b efore 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]." A rmstrong

, 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 o r 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 the9

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 al ternative definitions of disability may

maintain a claim for violation of the ADA’s standards regarding

medical inquiries during the job application process." A rmstrong

, 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 me dical 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 "absence of any controlling or persuasive a uthority" 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 examina t ion 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, purpo se, 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." I d. 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 Tu rner’s alleged violation of section10

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. S ee, e.g., Grif fin 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 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 urge s 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 st atutory

interpretation. We are not unmindful either of the significance of

this issue or of the inevitability and necessity of its resolution9

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 ret icence 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 lac ks 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 di sability. 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 s eek injunctive or

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

Court as to whether Armstrong has , in the abstract, a cause of11

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. Un ited States , 106 F.3d 661, 664 n.2 (5th Cir. 1997) ("For

purposes of today’s disposition, we assume, without deciding, that

the plain tiffs have standing."); C ole 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 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, with out considering what relief

may (or m ay 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 a ppeal). 1 1 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 that12

Id. at 2276. Discussing this "analytical distinction" set out in

Davis v. Passman

, Justi ce 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.’" U nited States v. Stanley

, 107 S.Ct.

3054, 3069 n.7 (Brennan, J., dissenting in part).

11 may, as a mat ter of law, appropriately invoke the power of the

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

court may make available." I d. at 2274 n.18. The D avis 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 stat ed, "[a]lthough petitioner has a cause of action, her

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

unless it can be determined that judic ial relief is available." 1 2

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 Arms trong 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).13

See Robert Belton, Remedies in Employment Discrimination Law § 3.9

(1992) ("Although [ Albemarle ] and F ranks [ 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 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. B uchanan

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

deals with employment dis crimination, allows a private right of

action to "any person alleging disc rimination 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." I d. at 2 372. This is described as the "make whole"

p urpose of Title VII. I d. Although A lbemarle 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 Injuries14

The original complaint also alleged damages flowing from the

allegedly discriminatory refusal to hire, including "substantial

loss of income," "emotional distress," "pain and suff ering."

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 emplo yment 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 truthful ly answer the questions on the

13 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 t h e 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

w rongful discharge), allegedly caused by or "because of"

discrimination on the basis of a prohibited characteristic or trait

such as gender, race, religion, n ational origin, age, or

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

presented on appeal, presents an atypical and uncommon suit.

Altho ugh the original complaint did allege an adverse employment

acti on

—— T urner’s refusal to hire Armstrong due to perceived

disability

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

ruling has not bee n challenged on appeal. 1 4 The magistrate judge

determined that there was no evidence indicating the e mployment

action in question was tainted by disability discriminati on, and

consequently it does not constit u te a compensable injury. 15[application] form." A rmstrong

, 950 F.Supp. at 165 (emphasis

added). Turner did not perceive or regard Armstrong as disabled or

substantially impaired in any way. I d. 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." I d. In sum, the court below concluded that the

information revealed by the unlawful medical inquiry did not lead

Turner to deny Armstrong employ ment "because of disability," but

rather because of the perception that he "did not truthfully answer

the questions on the form." I d. 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," t he inquiry "caused"

Arm strong not to be hired. In fact, a micus 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. I d. at 200. Under B uchanan

, 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 contemplat ed by the

statute and resulted from the hazard against which the statute was

intended to protect. S ee Restatement (Second) of Torts §§ 286 and

874A (1965). S ee 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 de cision, 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 disabi lity). 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 Armstrong does not challenge this conclusion on appeal. 16sense, 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, incid e nt to a prohibited section

12112(d)(2)(A) inquiry, either learns tha t the applicant has an

embezzlement or murder conviction or believes, cor rectly 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." B ienkowski v. American

Airlines, Inc. , 851 F.2d 1503, 1508 (5th Cir.1988) (ADEA case).

17

The magistrate judge found "not hing 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. " A rmstrong

, 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 Although it is unclear, it appears that Armstrong implicitly

argues (or assumes) that a violation of section 121 12(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

. 1 7 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 at18

The general analysis in B uchanan seems to imply

—— or at least i s susceptible to the reading

—— that a mere vio lation 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 B uchanan

, the plaintiff was a patrolman for

the Bexar County Sheriff’s Department w ho repeatedly applied and

was rejected for a positi on 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). I d. 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. I d. 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). I d

. at 199. We then went on to briefly discuss the predicates of a

damages claim based on a violation of that subsection. I d. 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 establi shed, c aused by a premature medical

examination." Id. at 199-200 (emphasis added). We observed that

"co mpensatory 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." I d. at 200 (footnote omitted). In discussing the

possible injuries for which Buchanan might receive compensation, we

mentioned only thos e 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 h e 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 issue here. 18 We find this approach to be consonant with the

structure of the ADA as well as the principles embo died in the19

W e 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. S ee 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

(i n the hypothetical) precisely the same position that he would

have occupied absent the unlawful employment practice. Similarly,

where a plaintiff cannot demonstrate ac tual injury, providing a

dam ages 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 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 and22

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 reemphasized the "case or controversy " requirement that is at the

root of the standing d octrine in P lumley 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 compensable injury arising out of the medical examination and

inquiry, or alleged any corre sponding 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) a nd that

Armstrong is entitled to an injunction or dering Turner to "cease

and desist from usi ng this employment practice." However,

Armstrong has failed to meet the prerequisites for as serting

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

equ itable relief. 2 2 The Supreme Court articulated the

constitutional "preconditions for asserting an injunctive claim in23

Id. at 1665 (citations omitted). Additionally, "the injury or

threat of injury must be both real and immediate, not [merely]

conjectural or hypothetical." I d. (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.’" I d. at 2138 (quoting

O’Shea v. Littleton , 94 S.Ct. 669, 676 (1974)).

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

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

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

injunctive relief mus t "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 wron gs 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 th is limitation of standing to seek

injunctive relief in the Title VII context is illustrated by Fair

Employment Council of Greater Wa shington, Inc. v. BMC Marketing

Corp.

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

relevant respects, analogous to the one s ub 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 testers20

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

intended to be comparable," and instructed to seek employment

referrals from the agency. I d. 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 L yons

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

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

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

future effects from past violations." I d. at 127 3. 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. I d. 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 alle ged 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 to25

The requirement articulated in L yons 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, 1 446-47 (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, I nc. , 124 F.3d

1221 (10th Cir. 1 997), in which the Tenth Circuit held that an

employee had standing to challenge her current employe r’s

imposition of a drug disclosure and testing policy. The plaintiff

a sserted 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 dec ision of the court

— — in particular an injunction

prohibiting enforcement of the drug disclosure policy

—— would clearly

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

discrimination from Turner. Consequently, Armstrong’s allegations

are clearly insufficient un der well-established law to support

standing to seek an inj unction. 2 5 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. S ee, e.g., Brown v. Edwards

, 721 F.2d

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

F.3d at 1272-1274; Plumle y 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). 26serve to prevent this injury. Id. at 1229.

22 Conclusion

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

Armstrong’s suit is

AFFIRMED.