                                                                                      PUBLISH

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT        FILED
                                  _______________    U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                            09/30/99
                                        No. 98-4259
                                                                         THOMAS K. KAHN
                                      _______________                        CLERK

                            D. C. Docket No. 95-6530-Cv-JAG


WILLIAM V. BARNES,

                                                      Plaintiff-Appellant,


                                             versus


BROWARD COUNTY SHERIFF’S OFFICE,

                                                      Defendant-Appellee.

                           ______________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                        ______________________________

                                    (September 30, 1999)

Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.

BIRCH, Circuit Judge:


       *
         Honorable Richard Mills, Senior U. S. District Judge for the Central District of Illinois,
sitting by designation.
      This appeal raises the question of whether a plaintiff who seeks and obtains

injunctive relief pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12201, et seq., is entitled to attorney’s fees when that relief does not benefit the

plaintiff directly. William V. Barnes appeals the decision of the district court to

amend its initial decision to award attorney’s fees. For the reasons that follow, we

conclude that the district court properly amended its original judgment, thereby

denying Barnes’ request for attorney’s fees under the ADA.



                                 I. BACKGROUND

      Barnes filed this action against Ron Cochran, Sheriff of Broward County,

Florida (“the County”), alleging that the County had refused to hire him for a position

as detention deputy due to a perceived disability and due to his age, in violation of the

ADA and the Age Discrimination in Employment Act, 29 U.S.C. § 421 (“ADEA”).

Barnes sought compensatory relief with respect to both the ADA and ADEA claims.

In addition, Barnes sought injunctive relief under the ADA to prohibit the County

from maintaining its practice of conducting pre-employment psychological

examinations, to which he had been subjected as part of the job application process.

      The district court granted summary judgment in favor of the County on Barnes’

discrimination claims. Specifically, the court found that Barnes had “barely satisfied


                                           2
the burden of proving his prima facie case” of discrimination under the ADA and,

even assuming he had satisfied this burden, nonetheless had failed to proffer sufficient

evidence to give rise to a reasonable inference that the County’s stated legitimate

reasons for not hiring Barnes were pretextual. See R2-29 at 8. The court further

determined that Barnes had failed to present “even a scintilla of evidence in his favor”

with respect to the ADEA claim. Id. With regard to Barnes’ challenge to the

County’s use of pre-employment psychological testing, however, the court concluded

that the particular examination process employed by the County was impermissible

under the ADA. Consistent with this determination, the court granted summary

judgment in favor of Barnes on this claim and permanently enjoined the County from

continuing the practice of conducting pre-employment psychological or physical

medical evaluations. See id. at 15-16.

      Both the County and Barnes subsequently moved for attorney’s fees. In its

initial order, the district court found that (1) because Barnes’ institution of the ADEA

claim was “without foundation,” R2-50 at 5, the County was entitled to attorney’s fees

on this claim, and (2) because the court had enjoined the County from further use of

pre-employment psychological testing as a result of Barnes’ lawsuit, Barnes had

effectively prevailed on a significant issue and, therefore, also was entitled to

attorney’s fees. See id. at 4.


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       Both parties moved to amend the judgment. In response to these motions, the

district court concluded that it had erred both in characterizing Barnes as a prevailing

party and in awarding him attorney’s fees as a result of the injunctive relief ordered

at the conclusion of the litigation. The court thus vacated its earlier judgment to the

extent that it granted Barnes attorney’s fees, and denied Barnes’ motion to amend the

judgment as to the ADEA claim. See R2-59 at 3.



                                       II. DISCUSSION

       We review the district court’s decision to alter or amend a judgment regarding

attorney’s fees for abuse of discretion. Taylor v. City of Fort Lauderdale, 810 F.2d

1551, 1556 (11th Cir. 1987). To the extent that the district court’s conclusion

implicates a question of law, we review de novo. See Preserve Endangered Areas of

Cobb’s History, Inc. v. United States Army Corps of Engineers, 87 F.3d 1242, 1246

(11th Cir. 1996).

       In Hewitt v. Helms, 482 U.S. 755, 107 S. Ct. 2672, 96 L. Ed. 2d 654 (1987), a

case involving the plaintiff’s entitlement to attorney’s fees under 42 U.S.C. § 19881,

the Supreme Court expressly noted that

       1
          While this case involves the “prevailing party” standard under the ADA, the Court has noted
that its analysis of the “prevailing party” standard under section 1988 is “generally applicable in all
cases in which Congress has authorized an award of fees to a ‘prevailing party.’” Hensley v.
Eckerhart, 461 U.S. 424, 433 n.7, 103 S. Ct. 1933, 1939 n.7, 76 L. Ed. 2d 40 (1983).

                                                  4
               [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.

Id. at 761, 107 S. Ct. at 2676 (emphasis in original). Hewitt concerned a claim

brought by a prison inmate pursuant to 42 U.S.C. § 1983. The inmate, Helms, alleged

that his administrative segregation and subsequent conviction for participating in a

prison riot violated his right to due process. Although the Court of Appeals

determined that Helms’ conviction constituted a violation of due process, the district

court, on remand, found that the defendants were entitled to qualified immunity. The

Supreme Court concluded that, notwithstanding the earlier finding that Helms’

constitutional right had been violated, this “moral satisfaction,”2 id. at 762, 107 S. Ct.

at 2676, without more, was not sufficient to confer on the plaintiff prevailing party

status. Noting that, during the pendency of Helms’ lawsuit, Helms was released from

prison and, at the same time, the state Bureau of Corrections revised its inmate

disciplinary proceedings, the Court observed:

               When [the Bureau of Prison’s regulation] was amended,
               Helms had long since been released from prison. Although

       2
         We recognize that, unlike the plaintiff in Hewitt, the court in this case granted a portion of
the relief Barnes’ sought in his complaint – that is, an injunction barring the County from continuing
its use of psychological examinations. As we discuss further below, however, the Supreme Court
has suggested in broad terms that a plaintiff’s “success” in a lawsuit may not, in all instances, render
him a prevailing party for purposes of an attorney’s fee award.

                                                   5
             he has subsequently been returned to prison, and is
             presumably now benefitting from the new procedures . . .,
             that fortuity can hardly render him, retroactively, a
             “prevailing party” in this lawsuit, even though he was not
             such when the final judgment entered.

Id. at 763-64, 107 S. Ct. at 2677.

      In Rhodes v. Stewart, 488 U.S. 1, 109 S. Ct. 202, 102 L. Ed. 2d 1 (1988), the

Supreme Court applied the reasoning of Hewitt in the context of prison inmates suing

under section 1983 for prison officials’ refusal to allow them to subscribe to certain

magazines. The Court acknowledged that, subsequent to the inmates’ initiation of

their lawsuit, judgment was entered for the inmates and the prison modified its

magazine-subscription policy, but concluded that the plaintiffs nonetheless were not

entitled to attorney’s fees. In reaching this determination, the Court observed that “[a]

modification of prison policies on magazine subscriptions could not in any way have

benefitted either plaintiff, one of whom was dead and the other released before the

District Court entered its order.” Id. at 488, 109 S. Ct. at 203.

      More recently, in Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d

494 (1992), the Court synthesized its jurisprudence regarding a prevailing plaintiff’s

entitlement to attorney’s fees under the fee-shifting provisions of civil rights

legislation and stated:

             Whatever relief the plaintiff secures must directly benefit
             him at the time of the judgment or settlement. Otherwise

                                           6
              the judgment or settlement cannot be said to affect the
              behavior of the defendant toward the plaintiff. Only under
              these circumstances can civil rights litigation effect “the
              material alteration of the legal relationship of the parties”
              and thereby transform the plaintiff into a prevailing party.
              In short, 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.

Farrar, 506 U.S. at 111, 113 S. Ct. at 573 (citations and internal quotation marks

omitted).

       Our review of the foregoing decisional law convinces us that we are bound, in

this instance, to conclude that Barnes is not entitled to attorney’s fees. Despite the fact

that the court granted injunctive relief with respect to the County’s use of pre-

employment psychological testing, there is neither evidence that this change in policy

affected the relationship between Barnes and the County at the time judgment was

rendered, nor any indication that Barnes directly benefitted from the injunction. As

alluded to by the Supreme Court in Hewitt, the fact that Barnes conceivably could

benefit from the court’s order prohibiting the referenced examinations if he ever chose

in the future to re-apply to the Sheriff’s office for a job is not adequate to render him




                                            7
a prevailing party with respect to this litigation.3 See Hewitt, 482 at 763-64, 107 S.

Ct. at 2677.

        It is worth adding that we do not share Barnes’ interpretation of decisional law

from this and other circuits, cited for the proposition that courts frequently do not

consider as significant or dispositive, for purposes of assessing a plaintiff’s entitlement

to attorney’s fees, whether that plaintiff has received a direct legal or equitable benefit

as a result of the litigation. Although Barnes is correct that these decisions do not

expressly describe or discuss the plaintiff’s legal relationship to the defendant at the

conclusion of the litigation, the facts in each case indicate that such a discussion was

unnecessary because the applicable court-ordered relief unambiguously and personally

affected the plaintiff. See, e.g., LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 759 (2nd

Cir. 1998), (where injunctive relief prevented defendants from implementing zoning


        3
         We do not foreclose the possibility that an employment discrimination plaintiff who receives
only injunctive relief may be entitled to attorney’s fees where the plaintiff establishes that he
continues to have or is reasonably likely to have some legal relationship to the defendant. We
acknowledge that Hewitt and Rhodes cannot be applied wholesale and without limitation to every
civil rights case where attorney’s fees are at issue. Indeed, conferring prevailing party status on the
prisoner-plaintiffs in Hewitt and Rhodes would require that the court inappropriately speculate that
the plaintiffs were likely, at some point in the future, to return to the particular prison whose policy
was modified by virtue of the injunctive relief and, thereby, “benefit” from the fruits of the litigation.
In an employment case, however, it may be possible to allege and show -- without requiring any
speculation by the court -- that the plaintiff retains a sufficient connection to the defendant that he
likely will be affected by the court’s judgment. For example, a plaintiff could demonstrate that he
remains eligible and is likely to reapply to the employer after challenging an employment practice.
In this case, there is no evidence that Barnes was eligible to re-apply for the deputy position, nor
does he allege that he intended to re-apply or would re-apply if the court were to bar the continued
use of the psychological examinations.

                                                    8
regulations that would impair the plaintiffs’ ability to conduct religious services,

plaintiffs – members of the affected religious community – were direct beneficiaries

of the defendants’ change in conduct.); Layton v. Elder, 143 F.3d 469, 470-73 (8th Cir.

1998), (injunction mandating that the defendant-county make its services and programs

accessible to disabled individuals effected a material change in the relationship

between the county and the private plaintiffs, two disabled members of the

community.); Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548 (11th Cir. 1994)

(class of plaintiffs comprised of current City employees entitled to attorney’s fees

based on partial success in eliminating race and gender-conscious personnel decisions

regarding City’s affirmative action policies.); Ruffin v. Great Dane Trailers, 969 F.2d

989 (11th Cir. 1992) (where court ordered defendant-employer to correct racist conduct

at its job-site, fact that plaintiff could “now protect his rights through a civil contempt

proceeding in the event that [the defendant’s] compliance with the court’s injunction

is not forthcoming,” id. at 993, indicates (in the absence of any language to the

contrary) that, at the time court rendered judgment, plaintiff was still employed by

defendant.). Contrary to Barnes’ suggestion, we believe that in each of these cited

cases, the plaintiff or plaintiffs were at least the partial direct beneficiaries of any

injunctive relief obtained.




                                            9
      Our determination that, under the circumstances presented in this case, Barnes

is not entitled to attorney’s fees is not intended to ignore or eviscerate the continuing

viability of the “private attorney general” cause of action, whereby a plaintiff – or class

of plaintiffs – vindicates a constitutional or statutorily-prescribed right by bringing a

civil rights lawsuit and, as a result of that lawsuit, causes a modification of the

defendant’s behavior or policies. Indeed, the Supreme Court has expressly noted the

importance of this particular means of enforcing civil rights legislation. See, e.g.,

Texas State Teachers v. Garland Indep. School Dist., 489 U.S. 782, 793 109 S. Ct.

1486, 1494, 103 L. Ed. 2d 866 (1989) (“Petitioners here obtained a judgment

vindicating the First Amendment rights of public employees in the workplace. . . .

Petitioners have thus served the ‘private attorney general’ role which Congress meant

to promote in enacting § 1988.”). As previously stated, however, the Court’s

application of its general guiding principles regarding the outer limits of prevailing

party status consistently has evinced a requirement that, to be considered a prevailing

party, a plaintiff must obtain some benefit from the defendant at the time the litigation

ceases.



                                 III. CONCLUSION




                                            10
      In this appeal, Barnes asks that we set aside the district court’s judgment

amending its original decision to grant Barnes’ request for attorney’s fees. Based on

our review of binding Supreme Court precedent, we conclude that an ADA plaintiff

who obtains injunctive relief that does not directly benefit him at the time court-

ordered relief is imposed does not constitute a prevailing party for purposes of the

applicable fee-shifting provision. We therefore determine that the district court

properly altered its initial order awarding Barnes’ attorney’s fees. Accordingly, we

AFFIRM.




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