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Nos. 96-1137/1206

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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. *

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 Submitted: September 9, 1996

 Filed: October 21, 1996

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

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

In this 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.

Plaintiff complained that he had been discriminated against in

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 permitted

recovery of compensatory damages in a mixed-motive case. Pedigo v. P.A.M.

Transport, Inc., 60 F.3d 1300 (8th Cir. 1995). On remand, the district

court held that plaintiff was entitled to relief solely in the form of a

declaration that
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defendant had intentionally violated the ADA.

While the judgment was on appeal, the district court awarded

plaintiff $30,000 in attorney's fees as the prevailing party. After

remand, and after the district court granted the declaratory judgment as

the sole relief to which plaintiff was entitled, plaintiff asked the

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 grant

no attorney's fees in addition to the $30,000 that it had already awarded.

An award 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 the

declaratory relief on remand.

Both parties appeal from the district court's determination of

attorney's fees. Plaintiff contends that the district court should have

granted additional fees for plaintiff's efforts following remand of the

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 the

prevailing party a reasonable attorney's fee. 42 U.S.C. § 12205. The term

"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 cases

analyzing those statutes therefore provide us with guidance in the present

case. To qualify as a prevailing party under section 1988, a plaintiff

must obtain relief on the merits that directly benefits him or her through

an enforceable judgment, or a plaintiff must obtain comparable relief

through a consent decree or settlement. Farrar v. Hobby, 506 U.S. 103, 111
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(1992). A plaintiff prevails "when actual relief on the merits of his

claim materially alters the legal relationship between the parties by

modifying the defendant's behavior in a way that directly benefits the

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 plaintiff a prevailing party."

Id. at 112.

The district court erred in finding that plaintiff was a prevailing

party, because a judicial pronouncement that the defendant has violated the

law, like the one that Mr. Pedigo received in this case, without an

enforceable judgment on the merits, cannot render him a prevailing party.

Plaintiff has no enforceable judgment, even of a nominal character, that

affects the behavior of the defendant toward the plaintiff. The

declaratory judgment, in this case, moreover, afforded plaintiff no relief

because he had already left the defendant's employ by the time that the

district court declared 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 vacated

the jury verdict, the prior award cannot stand in light of our holding that

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 awarding

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 also

Clark 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) (per

curiam). Mr. Pedigo ceased to be a prevailing party 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
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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 the foregoing reasons, the district court's order awarding

attorney's fees is reversed.

A true copy.

Attest:

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