EDWARD LEO POTTGEN v MO STATE HIGH SCHOOL
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No. 96-1902
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Edward Leo Pottgen, *
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Appellee, *
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v. *
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The Missouri State High School *
Activities Association, *
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Appellant. *
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Appeals from the United States
No. 96-2017 District Court for the
___________ Eastern District of Missouri.
Edward Leo Pottgen, *
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Appellant, *
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v. *
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The Missouri State High School *
Activities Association, *
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Appellee. *
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Submitted: November 18, 1996
Filed: January 10, 1997
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Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and
LONGSTAFF,(1) District Judge.
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(1)THE HONORABLE RONALD E. LONGSTAFF, United States District
Judge for the Southern District of Iowa, sitting by designation.
MAGILL, Circuit Judge.
Edward Pottgen brought an action against the Missouri State
High School Activities Association (MSHSAA) after MSHSAA refused to
allow him to participate in interscholastic athletics at the high
school level. The district court granted Pottgen preliminary
injunctive relief, but this Court reversed. The district court
consequently rescinded the injunctive relief and dismissed
Pottgen's complaint with prejudice. The district court
nevertheless granted Pottgen's postdismissal motion for attorney's
fees and expenses under 42 U.S.C. SS 12205 (1994), 29 U.S.C.
SS 794a(b) (1994), and 42 U.S.C. SS 1988 (1994). MSHSAA appeals,
and Pottgen cross-appeals. Because Pottgen is not a prevailing
party, we reverse.
I.
Edward Pottgen, a high school senior, brought an action
against MSHSAA on March 23, 1994, after MSHSAA refused to allow him
to participate in interscholastic athletics during the 1993-1994
school year. MSHSAA refused to allow him to participate because
its By-Law 232 essentially provides that students nineteen years of
age or older are ineligible to participate in interscholastic
sports. Pottgen was nineteen years old at that time.
Pottgen contended that MSHSAA's decision violated his rights
under (1) Title II of the Americans with Disabilities Act, 42
U.S.C. SS 12132 (1994) (the ADA); (2) SS 504 of the Rehabilitation
Act of 1973, 29 U.S.C. SS 794 (1994) (the Rehabilitation Act); and
(3) 42 U.S.C. SS 1983 (1994). Pottgen had been held back for two
years because of a learning disability; as a result, he was too old
to play baseball under MSHSAA's By-Law 232.
On March 23, 1994, the district court granted Pottgen a
temporary restraining order (TRO) permitting him to play for his
high school baseball team. On March 31, 1994, the district court
extended the TRO until a hearing on the merits of Pottgen's motion
for a preliminary injunction could be held. Following a two-day
hearing on April 18 and 19, 1994, the district court denied
MSHSAA's motion to dismiss and granted preliminary injunctive
relief to Pottgen on the merits. See Pottgen v. Missouri State
High Sch. Activities Ass'n, 857 F. Supp. 654, 665 (E.D. Mo. 1994).
The district court enjoined MSHSAA from (1) preventing Pottgen from
competing in any of his high school's baseball games; and (2)
imposing any penalty, discipline, or sanction on any school for
which or against which Pottgen competed. Id. at 666.
MSHSAA appealed the district court's decision. However, by
the time the case was heard on appeal, Pottgen's senior-year
baseball season had already ended. Pottgen had been able to
compete in three games under the TRO and to finish the season under
the preliminary injunction. This Court nonetheless heard the
appeal, concluding that, although "the portion of the injunction
permitting him to play is moot[,] . . . a live controversy still
exists regarding the portion of the injunction which prohibits
MSHSAA from imposing sanctions upon a high school for whom or
against whom Pottgen played." Pottgen v. Missouri State High Sch.
Activities Ass'n, 40 F.3d 926, 928 (8th Cir. 1994).
On appeal, this Court found that Pottgen was not an aggrieved
party under the ADA, the Rehabilitation Act, or SS 1983. Id. at
929. We therefore reversed the district court's decision granting
a preliminary injunction and batted the case back to the district
court for further proceedings consistent with our holding. Id. at
931.
Pursuant to this Court's decision, the district court entered
an order rescinding all injunctive relief. Order at 2 (Feb. 23,
1995), reprinted in J.A. at 59. The district court subsequently
dismissed Pottgen's complaint with prejudice after concluding that
"it appears beyond doubt plaintiff can prove no set of facts which
would entitle him to relief . . . ." Mem. & Order at 4 (May 3,
1995). Pottgen then filed a postdismissal motion for attorney's
fees and expenses. Though the district court reduced Pottgen's
request by 50%, the court granted Pottgen's motion, awarding him
attorney's fees in the amount of $8,415.50 plus litigation expenses
in the amount of $719.79 under 42 U.S.C. SS 12205, 29 U.S.C.
SS 794a(b), and 42 U.S.C. SS 1988. Mem. Op. at 11 (Mar. 1, 1996).
The district court awarded attorney's fees to Pottgen as a
prevailing party because Pottgen had been able to play baseball
under the district court's grant of a TRO and a preliminary
injunction. Id. at 5-6.
MSHSAA appeals the award of attorney's fees and litigation
expenses. Pottgen cross-appeals, arguing that the district court
should not have reduced its attorney's fees award by 50%.(2)
II.
To be entitled to attorney's fees and litigation costs under
SS 12205, SS 794a(b), and SS 1988, Pottgen must be a "prevailing
party." See, e.g., Farrar v. Hobby,
506 U.S. 103, 109
(1992)
(party must be a prevailing party to qualify for attorney's fees
under SS 1988). This Court reviews the district court's
determination of prevailing party status de novo. See St. Louis
Fire Fighters Ass'n Int'l Ass'n of Fire Fighters Local 73 v. City
of St. Louis, 96 F.3d 323, 330 (8th Cir. 1996).
In Farrar, the Supreme Court set forth the framework for
determining whether a civil rights plaintiff is a prevailing party
under 42 U.S.C. SS 1988 for purposes of awarding attorney's fees.
The Court held:
[T]o qualify as a prevailing party, a civil rights
plaintiff must obtain at least some relief on the merits
of his claim. The plaintiff must obtain an enforceable
judgment against the defendant from whom fees are sought
or comparable relief through a consent decree or
settlement. . . . 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.
Id. at 111-12 (citations omitted); see also Texas State Teachers
Ass'n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 791-92
(1989);
Hewitt v. Helms,
482 U.S. 755, 759-60
(1987); Kentucky v. Graham,
473 U.S. 159, 165
(1985); Hanrahan v. Hampton,
446 U.S. 754, 758
(1980) (per curiam). We hold that the same framework applies to
determinations of prevailing party status under 42 U.S.C. SS 12205
and 29 U.S.C. SS 794a(b). See Pedigo v. P.A.M. Transp., Inc., 98
F.3d 396, 397 (8th Cir. 1996) ("The term 'prevailing party' appears
in a number of other statutes [besides 42 U.S.C. SS 12205] that
permit the recovery of attorney's fees, see, e.g., 42 U.S.C.
SS 1988, and cases analyzing those statutes therefore provide us
with guidance in the present case.").
Thus, to be entitled to attorney's fees, Pottgen needed to
obtain some measure of success on the merits. He needed to obtain
either an enforceable judgment or comparable relief through a
consent decree or settlement. Pottgen argues that he achieved
success on the merits when the district court granted him
preliminary injunctive relief because that judgment allowed him to
obtain the primary benefit that he sought--namely the opportunity
to play baseball.(3) We disagree.
A plaintiff cannot qualify as a prevailing party if the only
basis for his claim of success on the merits is a judgment that has
been reversed on appeal. See Pedigo, 98 F.3d at 398 ("[A]n order
awarding attorney's fees based on a party's having prevailed in a
trial court cannot survive the reversal of that party's judgment on
appeal."); see also Zephier v. Pierce, 714 F.2d 856, 859 (8th Cir.
1983). A judgment that has been reversed on appeal is a nullity.
See Pedigo, 98 F.3d at 398 ("[R]eversal of a judgment nullifies not
only that judgment but any order based upon it."). Here, the only
judgment upon which Pottgen can base a claim of prevailing party
status has been reversed, and hence nullified. That judgment
therefore does not constitute success on the merits for purposes of
awarding attorney's fees, and Pottgen is consequently not a
prevailing party.(4)
III.
The district court's order awarding attorney's fees and
litigation costs is reversed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(2)
Because we decide today that Pottgen is not entitled to any
attorney's fees or litigation costs, Pottgen's cross-appeal is
moot. We accordingly decline to address this issue.
(3)
Pottgen also argues that he is a prevailing party under the
catalyst theory. This Court has recognized that:
Where a defendant voluntarily complies with a plaintiff's
requested relief, thereby rendering the plaintiff's
lawsuit moot, the plaintiff is a "prevailing party" under
section 1988 if his suit is a catalyst for the
defendant's voluntary compliance and the defendant's
compliance was not gratuitous ... .
Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. #1, 17
F.3d 260, 262 (8th Cir. 1994) (quotations and citations omitted).
Pottgen's catalyst argument lacks merit. Pottgen has not
shown, nor can we discern, how his suit was a catalyst for
voluntary compliance on the part of MSHSAA. MSHSAA allowed Pottgen
to play baseball only because it was enjoined from preventing him
from playing. Moreover, there is no indication that MSHSAA has
abandoned, or has any intention of abandoning, its policy under By-
Law 232.
(4)
While we recognize that Pottgen was able to play baseball,
this opportunity was the result of an incorrect ruling by the
district court. Had it not been for the passage of time between
the district court's grant of injunctive relief and this Court's
reversal of that relief, MSHSAA could have enforced its By-Law 232
as written against Pottgen. In addition, MSHSAA has in no way been
barred from future enforcement of By-Law 232 against any other
student. Thus, Pottgen cannot be considered to be a prevailing
party in any meaningful sense. He got the chance to play baseball
only because the district court erred in granting a TRO and
preliminary injunctive relief. A victory of this sort--one due to
an incorrect ruling by the district court--is not sufficient to
support a finding of prevailing party status.