THE HONORABLE RONALD E. LONGSTAFF, United States District

1

Judge for the Southern District of Iowa, sitting by designation.

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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, *

*

Appellant, *

*

v. *

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The Missouri State High School *

Activities Association, *

*

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, District Judge. 1

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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 The district court consequently rescinded the injunctive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. § 12205 (1994), 29 U.S.C. § 794a(b)

(1994), and 42 U.S.C. § 1988 (1994). MSHSAA appeals, and Pottgen crossappeals. 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. § 12132

(1994) (the ADA); (2) § 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794 (1994) (the Rehabilitation Act); and (3) 42 U.S.C. § 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
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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 § 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
 Because we decide today that Pottgen is not entitled to any 2

attorney's fees or litigation costs, Pottgen's cross-appeal is

moot. We accordingly decline to address this issue.

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"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. § 12205,

29 U.S.C. § 794a(b), and 42 U.S.C. § 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 § 12205,

§ 794a(b), and § 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 § 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.

§ 1988 for purposes of awarding attorney's fees. 
 Pottgen also argues that he is a prevailing party under the 3

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 . . . .

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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. § 12205 and 29 U.S.C. § 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. § 12205]

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.").

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. We disagree. 3
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 ByLaw 232.

 While we recognize that Pottgen was able to play baseball,

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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.

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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
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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.