               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 02-40299
                         Summary Calendar



JOHN HAYES,

                Plaintiff-Appellant,

versus

PETROLEUM HELICOPTERS, INC.

                Defendant-Appellee

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                        USDC No. G-00-CV-62
                       --------------------
                         September 4, 2002
Before EMILIO M. GARZA, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant John Hayes (“Hayes”) appeals from the

district court’s order of dismissal which denied his motion to

reopen the case, denied his motion for leave to file an amended

complaint, and dismissed his claims for failure to state a case

upon which relief can be granted.      For the following reasons, we

affirm the order of dismissal.



     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                 1
     In   February   2000,   Hayes    brought    suit   against    Petroleum

Helicopters, Inc. (“PHI”) alleging violations of the Uniformed

Services Employment and Reemployment Rights Act of 1994 (“USERRA”),

38 U.S.C. § 4311(a), and the Texas Government Code.          In addition,

Hayes asserted a claim for intentional infliction of emotional

distress.

     Hayes claims that PHI terminated him from his job at PHI

because he was called up to military duty to serve in Bosnia in

January 2000. However, the undisputed evidence before the district

court demonstrated that the controversy involving the alleged

termination had been resolved because PHI reemployed Hayes after he

returned from military duty.         Hayes’s counsel conceded during a

status conference that Hayes suffered no loss in pay or benefits as

a result of the alleged termination.1           Therefore, Hayes’s claims

were properly dismissed by the district court as moot.            See Chevron

U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1152 (5th Cir.

1993)(“A controversy becomes moot where, as a result of intervening

circumstances, there are no longer adverse parties with sufficient

legal interests to maintain the litigation.”).

     Hayes also contends that he is entitled to attorney’s fees

under USERRA.   He claims that the filing of this lawsuit led PHI to



     1
       Appellant’s counsel argued below that Hayes’s 401k account
was improperly closed after his alleged termination. However, PHI
retroactively reinstated the 401k plan.     As such, there is no
dispute concerning the restoration of benefits.

                                      2
give him his job back and thus he “prevailed” in the lawsuit.

USERRA does permit a trial court to award “reasonable attorney

fees” and “other litigation expenses” to a “person who prevails” in

a USERRA action.    See 38 U.S.C. § 4323(h)(2).        However, the Supreme

Court has determined that the term “prevailing party” as set forth

under the numerous federal statutes which allow courts to award

attorney’s fees and costs to the “prevailing party” does not

encompass a plaintiff who achieves his desired result because he

files a lawsuit which brings about a voluntary change in the

defendant’s conduct.       See Buckhannon Board and Care Home, Inc. v.

West Virginia Department of Health and Human Resources, 532 U.S.

598, 600 (2001). To qualify as a “prevailing party,” the plaintiff

must secure either a judgment on the merits or a court-ordered

consent decree.     Id.

     The   USERRA   statutory      language   refers    to    a     “person   who

prevails” as opposed to a “prevailing party.”                Nevertheless, we

conclude that     this    slight   variance   does   not     take    the   USERRA

statutory language outside the rule set forth in Buckhannon.

Accordingly, Buckhannon governs our decision and Hayes’s “catalyst

theory” argument fails.

     The district court’s order dismissing the case is AFFIRMED in

all respects.




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