                                 ___________

                              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 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
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.




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