___________ Nos. 96-1137/1206

___________ Lawrence L. Pedigo, * * Appeals from the United States Appellant/Cross-Appellee, * District Court for the Western * District of Arkansas. v. * * P.A.M. Transport, Inc., * * Appellee/Cross-Appellant. *

___________ Submitted: September 9, 1996 Filed: October 21, 1996

___________ Before McMILLIAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.
In th is appeal and cross-appeal from an award of attorney's fees , defendant argues that plaintiff was not a "prevailing party" so as to be entitled to attorney's fees. We agree and therefore reverse.

I. Plaint iff complained that he had been discriminated against i n violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101

- 12213, and at trial a jury found in his favor. Defendant appealed and we vacated the judgment because the jury instructions improperly permitte d recovery of compensatory damages in a mixed-moti ve case. Pedigo v. P.A.M. Transport , Inc. , 60 F.3d 1300 (8th Cir. 1995). On remand, the distric t court held that plaintiff was entitled to relief solely in the form of a declaration that

### -2-

defendant had intentionally violated the ADA.

While the judgment was on appeal, the district court awarde d plai ntiff $30,000 in attorney's fees as the prevailing party. Afte r remand, and after the district court granted the declaratory judgment as the sole relief to which plaintiff was entitled, plaintiff asked th e district court to grant additional attorney's fees. The district court, despite entertaining some doubts on the matter, found that the plaintiff
was a prevailing party in the litigation, but concluded that it would gran t no attorney's fees in addition to the $30,000 th at it had already awarded. An a ward of additional fees was unwarranted, in the district court' s opinion , because, since the prior award, the plaintiff had suffered a setback on appeal and had not been substantially benefitted by th e declaratory relief on remand.

Both p arties appeal from the district court's determination o f attorney's fees. Plaintiff contends that the district court should have grante d additional fees for plaintiff's efforts following remand of th e case. Defendant cross-appeals from the same decision to the extent that it confirms the prior award of $30,000 in fees to plaintiff, arguing that plaintiff is not a prevailing party in this lawsuit and deserves no fees whatsoever.

II. The ADA provides that a court, in its discretion, may allow th e prevailing party a reasonable attorney's fee. 42 U.S.C. § 12205. The ter m "prevailing party" appears in a number of other statutes that permit the recovery of attorney's fees, see, e.g. , 42 U.S.C. § 1988, and case s analyzing those statutes therefore provide us wi th guidance in the present
case. To qualify as a prevailing party under section 1988, a plaintif f must obtain relief on the merits that directly b enefits him or her through
an enf orceable judgment, or a plaintiff must obtain comparable relie f through a consent decree or settlement. Farrar v. Hobby , 506 U.S. 103, 11 1

### -3-

(1992). A plaintiff prevails "when actual relief on the merits of hi s claim materially alters the legal relationship between the parties b y modifying the defendant's behavior in a way that directly benefits th e plaintiff." 506 U.S. at 111-112. But "a judicial pronouncement that the defendant has violated the Constitution, unaccompanied by an enforceable judgment on the merits, does not render the plai ntiff a prevailing party." Id. at 112.

The distr ict court erred in finding that plaintiff was a prevailing party, because a judicial pronouncement that the defendant has violated th e law, like the one that Mr. Pedigo received in this case, without a n enforceable judgment on the merits, cannot render him a prevailing party. Plaintiff has no enforceable judgment, even of a nominal character, that af fects the behavior of the defendant toward the plaintiff. Th e declaratory judgment, in this case, moreover, af forded plaintiff no relief because h e had already left the defendant's employ by the time that th e district court declar ed that the defendant had discriminated against him. See Rhodes v. Stewart , 488 U.S. 1 (1988) (per curiam).
Although plaintiff had been awarded $30,000 in fees before we v acated the jury verdict, the prior award cannot stand in light of our holding tha t plaintiff is not a prevailing party. In general, reversal of a judgment nullifies not only that judgment but any order based upon it. Harris v. Pirch , 677 F.2d 681, 689 (8th Cir. 1982). In particular, an order awardin g attorney's fees based on a party having prevailed in a trial court cannot survive the reversal of that party's judgment on appeal. See id. ; see als o Cl ark v. Township of Falls , 890 F.2d 625, 626-27 (3d Cir. 1989) ; Swietlowich v. County of Bucks , 620 F.2d 33, 34-35 (3d Cir. 1980) (pe r curiam). Mr. Pedigo ceased to be a prevailing p arty when his judgment was vacated and the case was remanded, and he never subsequently prevailed in this suit in such a way as would allow

### -4-

the district court to hold that he was a prevailing party on the merits. Plaintiff is thus not entitled to any recover attorney's fees.

III. For th e foregoing reasons, the district court's order awardin g attorney's fees is reversed.

A true copy.

Attest:

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