                                                                                   PUBLISH

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT        FILED
                                _______________    U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                         09/30/99
                                      No. 98-2257
                                                                      THOMAS K. KAHN
                                    _______________                       CLERK

                          D. C. Docket No. 96-371-Civ-Orl-19


ROMANO SALVATORI,
                                                   Plaintiff-Appellee,


       versus

WESTINGHOUSE ELECTRIC CORPORATION,

                                                   Defendant-Appellant.

                          ______________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                        ______________________________
                                (September 30, 1999)


Before TJOFLAT and BIRCH, Circuit Judges, and BRIGHT*, Senior Circuit Judge.

PER CURIAM:




       *
        Honorable Myron H. Bright, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
      Romano Salvatori, a former employee of Westinghouse Electric Corporation

(“Westinghouse”), filed this action pursuant to the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 621-634. Following a jury trial, the jury found that

Westinghouse had discriminated against Salvatori based on his age, but that Salvatori

was not entitled to the damages he sought. The district court entered judgment in

favor of Salvatori and, as part of that judgment, allowed him to apply for attorney’s

fees. Westinghouse filed a motion to alter or amend the judgment. In that motion,

Westinghouse asked the court to enter judgment in favor of Westinghouse, to allow

Westinghouse to recover its costs, and to eliminate that portion of the judgment that

allowed Salvatori to apply for costs. Salvatori subsequently moved for reasonable

attorney’s fees and costs. Westinghouse opposed the motion on the ground, inter alia,

that Salvatori was not a “prevailing party” and, therefore, was not entitled to

attorney’s fees. See R15-138 at 3-5. The district court denied Westinghouse’s motion

to alter or amend the judgment, and concluded that Salvatori was entitled to attorney’s

fees and costs. The court noted that, although other analogous civil rights legislation

required that a plaintiff “prevail” in a lawsuit to give rise to an entitlement to

attorney’s fees, the ADEA did not share identical fee-shifting language to that present

in those statutes identified by Westinghouse. The court further found that the ADEA

mandated an award of attorney’s fees to a plaintiff who had been awarded “any


                                          2
judgment,” see R16-153 at 5, and that term encompassed a judgment based solely on

the merits. Westinghouse appeals the district court’s decision to deny its motion to

alter or amend the judgment and, again, argues that Salvatori is not entitled to

attorney’s fees.

       While this appeal was pending, we addressed and decided precisely the question

at issue in this case – that is, whether a plaintiff who obtains a favorable jury verdict

on the merits of an ADEA claim, but receives no damages, is entitled to attorney’s

fees. In Nance v. Maxwell Fed. Credit Union, ___ F.3d ___ , (11th Cir. 1999), we

determined that a plaintiff who had succeeded on the merits of an ADEA claim

nonetheless had failed to prove injury based on that discriminatory conduct. Based

on this finding, we vacated the district court’s award of back pay and front pay. See

id. at *3. Furthermore, we reasoned that, because the plaintiff had not received an

enforceable judgment and, as a result, had not “prevailed,” as that term has been used

in other civil rights contexts, she also was not entitled to attorney’s fees. See id. at *4.

       We conclude that our decision in Nance directly controls our disposition of the

instant case. Like the plaintiff in Nance, Salvatori has achieved success on the merits

of his claim but has not obtained a judgment, either in the form of damages or

equitable relief, that the court may enforce against Westinghouse. Consistent with our

decision in Nance, therefore, we determine that Salvatori is not entitled to attorney’s


                                             3
fees. We therefore REVERSE the district court’s order denying Westinghouse’s

motion to alter or amend the judgment, and REMAND this case for further

proceedings in light of this opinion.

      REVERSED AND REMANDED.




                                        4
BIRCH, Circuit Judge, concurring:

      I write separately to note that our decision to construe the ADEA as requiring

what is tantamount to a “prevailing party” status for purposes of a litigant’s

entitlement to attorney’s fees is not self-evident from the plain language of the statute.

In fact, notwithstanding the frequent and consistent use of the term “prevailing party”

by our court and other circuit courts to refer to a successful litigant within the context

of the ADEA, the statute contains no such language. The ADEA, which incorporates

selected provisions of the Fair Labor Standards Act (“FLSA”), including those

pertaining to attorney’s fees, see 29 U.S.C. § 626(b), mandates that “[t]he court in

such [an] action [filed pursuant to this section] shall, in addition to any judgment

awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by

the defendant, and costs of the action.” 29 U.S.C. § 216(b).

      Unlike the ADEA, however, both Title VII, 42 U.S.C. § 2000e-5k, and 42

U.S.C. § 1988(b), the primary vehicles for the majority of civil rights litigation,

provide that “the court, in its discretion, may allow the prevailing party . . . a

reasonable attorney’s fee (including expert fees) as part of the costs, and the

Commission and the United States shall be liable for costs the same as a private




                                            5
person.1“ The Supreme Court has held explicitly that “a favorable judicial statement

of law in the course of litigation that results in judgment against the plaintiff does not

suffice to render him a ‘prevailing party’“ under § 1988. Hewitt v. Helms, 482 U.S.

755, 763, 107 S.Ct. 2672, 2677, 96 L. Ed. 2d 654 (1987). Moreover, we have applied

the Supreme Court’s directive in Hewitt to cases brought under Title VII. In Walker

v. Anderson Elec. Connectors, 944 F.2d 841 (11th Cir. 1991), for instance, we found

that, although the plaintiff had won a favorable determination on the ultimate factual

issue in the case -- that is, that she had been sexually harassed -- , the reasoning of

Hewitt mandated that “such a finding, without more, will not ordain a litigant the

prevailing party.” 944 F.2d at 847. We further observed that “to be a prevailing party

for purposes of [Title VII] requires the attainment of something more tangible than a

jury finding of sexual harassment.” Id.

       Although it is critical to note that the procedural framework of Title VII and

section 1988 is not identical to that set forth in the ADEA, it is reasonable to

extrapolate salient aspects of the Supreme Court’s discussion of what constitutes a

“prevailing party” under Title VII and section 1988 for purposes of our analysis of




       1
        Section 1988 does not duplicate Title VII’s provision regarding either expert fees or the
potential liability of the United States or the Commission as tantamount to that of private parties.

                                                 6
what constitutes “any judgment” under the ADEA. In Hewitt, again, the Court

expressly observed that

              [t]he real value of the judicial pronouncement – what makes
              it a proper judicial resolution of a “case or controversy”
              rather than an advisory opinion – is in the settling of some
              dispute which affects the behavior of the defendant towards
              the plaintiff.

Hewitt, 482 U.S. at 761, 96 S. Ct. at 2676. It is fair to say that the Court’s reasoning

in Hewitt, while not conclusively controlling or dispositive of an analogous ADEA

case, necessarily informs our decision relative to the question of whether a litigant

who has succeeded only on the merits of her claim – but has received no “judicial

resolution,” id., is entitled to attorney’s fees.

       Thus, while I do not believe that we may, in essence, import the term

“prevailing party” into the ADEA, I agree that, in light of the Supreme Court’s

directive in Hewitt as applied by our court in the context of both Title VII and section

1988, an ADEA plaintiff is only entitled to attorney’s fees if, in addition to succeeding

on the merits of any part of her claim, the judicial resolution of the action settles some

dispute that affects the behavior of the defendant toward the plaintiff. Because no

such judicial resolution transpired as a result of the jury verdict in this case, I agree

that Salvatori is not entitled to attorney’s fees.




                                             7
BRIGHT, Circuit Judge, separately concurring:

      I agree that this court's recently announced decision in Nance v. Maxwell

Federal Credit Union (11th Cir. (Ala.)), controls the disposition of the case now before

us. It is now the rule, at least in this circuit, that unless there is an "enforceable

judgment" — irrespective of whether a defendant has been found liable for unlawful

discrimination — attorney's fees are not available under the ADEA. I therefore

concur in the result reached by our panel.

      If I were to decide this issue on a clean slate, however, I would not so hold.

Although the Supreme Court's opinion in Hewitt v. Helms, 482 U.S. 755 (1987), and

its progeny generally limit the availability of attorney's fees under both Title VII and

42 U.S.C. § 1988(b), it is not at all clear to me that such limitations should be adopted

wholesale in to the developing law of the ADEA. While it is true that the ADEA joins

the aforementioned statutes under the nominal banner of federal civil rights

legislation, the structure and relevant language of the ADEA are significantly different

than those of the analogous sections of either Title VII or § 1988(b). The substitution

of the phrase "any judgment" for "prevailing party" is an important modification, and

I believe it warrants a different analysis.




                                              8
