### THE HONORABLE RONALD E. LONGSTAFF, United States Distric t 1 

### Judge for the Southern District of Iowa, sitting by designation. ___________ No. 96-1902

___________ Edward Leo Pottgen, * * Appellee, * * v. * * The Missouri State High School * Activities Association, * * Appellant. *

___________ Appeals from the United States No. 96-2017 District Court for the

___________ Eastern District of Missouri.
Edward Leo Pottgen, * * Appellant, * * v. * * The Missouri State High School * Activities Association, * * Appellee. *

__________ Submitted: November 18, 1996 Filed: January 10, 1997

__________ Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, an d LONGSTAFF, District Judge. 1

___________

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MAGILL, Circuit Judge.

Edward Pottgen brought an action against the Missouri State Hig h School Activities Association (MSHSAA) after MSHSAA refused to allow him to participate in interscholastic athletics at t he high school level. The dist rict court granted Pottgen preliminary injunctive relief, but thi s Court reversed. The district court consequently rescinded the injunctive relief and dismissed Pottgen's complaint with prejudice. The distric t court nevertheless granted Pottgen's postdismissal motion for attorney's fee s 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 agains t MSHSAA on March 23, 1994, after MSHSAA refused t o allow him to participate in int erscholastic athletics during the 1993-1994 school year. MSHSAA refused to allow him to participate because its By-Law 232 essentiall y provides that students nineteen years of age or older are ineligible t o participate in inters cholastic sports. Pottgen was nineteen years old at that time.

Po ttgen contended that MSHSAA's decision violated his rights unde r (1) Title II of the Americans with Disabilities Act, 42 U.S.C. § 1213 2 (1994) (the ADA); (2) § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (19 94) (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 Ma rch 23, 1994, the district court granted Pottgen a temporar y restraining order (TRO) permitting him to play for his

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high school baseball team. On March 31, 1994, t he district court extended the TRO until a hearing on the merits of Pottgen's motion for a preliminar y injunction could be held. Following a two-day h earing on April 18 and 19, 1994, the district court denied MSHSAA's motion to dismiss and grante d preliminaryinjunctive 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 fro m competing in any of his high school's baseball g ames; 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 ha d already ended. Pottg en had been able to compete in three games under the TRO and to finish the season under the prelimina ry injunction. This Court nonetheless heard the appeal, concluding that, although "the portion of th e injunction permitting him to play is moot[,] . . . a live controversy stil l exists regarding the portion of the injunction which prohibits MSHSAA from impos ing sanctions upon a high school for whom or against whom Pottge n played." Pottgen v. Missouri State High Sch. Activities Ass'n , 40 F.3 d 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. W e therefore reversed the district court's decision granting a preliminar y injunction and batted the case back to the district court for furthe r proceedings consistent with our holding. Id. at 931.

Pursuant to this Court's decision, the district court entered a n orde r rescinding all injunctive relief. Order at 2 (Feb. 23, 1995) , reprinted in J.A. at 59. The district court subsequently dismisse d Pottgen's complaint with prejudice after concluding that

### Because we decide today that Pottgen is not entitled to any 2 

### attorn ey's fees or litigation costs, Pottgen's cross-appeal i s moot. We accordingly decline to address this issue. -4- "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. Thoug h the district court reduced Pottgen's request by 50%, the court grante d Pottgen's motion, awa rding him attorney's fees in the amount of $8,415.50 plus litigation expenses in the amount of $719.7 9 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 part y because Pottgen had b een 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. Pottge n cross-appeals, arguing that the district court should not hav e 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 part y to qualify for attorney's fees under § 1988). This Court reviews th e district court's determination of prevailing party status de novo. See St
. Louis Fire Fighters Ass'n Int'l Ass'n of Fire Fi ghters Local 73 v. City of St. Louis , 96 F.3d 323, 330 (8th Cir. 1996).

In Farrar , the Supreme Court set for th the framework for determining wheth er 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 hi s suit is a catalyst for the defendant's voluntary compliance and the defendant's compliance was not gratuitous . . . .

-5- The Court held:

[T] o qualify as a prevailing party, a civil rights plaintif f must obt ain at least some relief on the merits of his claim

. The plaintiff must obtain an enforceable judgment against the de fendant from whom fees are sought or comparable relie f through a consent decree or settlement. . . . In short, a pla intiff "prevails" when actual relief on the merits of hi s claimmaterially alters the legal relationship between th e par ties by modifying the defendant's behavior in a way tha t directly benefits the plaintiff.

Id. at 111-12 (citati ons 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 sa me framework applies to determinations of prevailing party statu s unde r 42 U.S.C. § 12205 and 29 U.S.C. § 794a(b). See Pedigo v. P.A.M

. Trans p., Inc. , 98 F.3d 396, 397 (8th Cir. 1996) ("The term 'prevailin g party' appears in a number of other statutes [besides 42 U.S.C. § 12205] that permit the recov ery 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 obtai n some meas ure of success on the merits. He needed to obtain either a n enforc eable judgment or comparable relief through a consent decree o r settlement. Pottgen argues that he achieved success on the merits when th e distric t court granted him preliminary injunctive relief because tha t 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. Pula ski County Special Sch. Dist. #1 , 17

F.3d 260, 262 (8th Cir. 1994) (quotations and citations omitted).
Po ttgen's catalyst argument lacks merit. Pottgen has no t shown, nor can we discern, how his suit was a catalyst fo r voluntary

compliance on the part of MSHSAA. MSHSAA allowed Pottgen to play baseball only because it was enjoined from preventing him fromplaying. Moreover, there is no indication that MSHSAA ha s abandoned, or has any intention of abandoning, its policy un der ByLaw 232. While we recognize that Pottgen was able to play baseball , 4 

### this opportunity was the result of an incorrect ruling by th e distri ct court. Had it not been for the passage of time betwee n the district court's grant of injunctive relief and this Court' s reversal of that relief, MSHSA A could have enforced its By-Law 232 as written against Pottgen. In addition, MSHSAA has in no w ay been barred from future enforcement of By-Law 232 against any othe r student. Thus, Pottgen cannot be considered to be a prevailin g party in any meaningful sense. He got the chance to play baseball onlybecause the district court erred in granting a TRO an d 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. -6- A plain tiff cannot qualify as a prevailing party if the only basi s for his claim of success on the merits is a judgment that has been reverse d
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 , 71 4 F.2d 856, 859 (8th Cir. 1983). A judgment that has bee n reversed on appeal is a nullity. See Pedigo , 98 F.3d at 398 ("[R]eversal of a judg ment nullifies not only that judgment but any order based upo n it."). Here, the only judgment upon which Pottgen can base a claim o f prevail ing party status has been reversed, and hence nullified. Tha t judgment therefore do es not constitute success on the merits for purposes of awarding attorney' s fees, and Pottgen is consequently not a prevailing party. 4

### -7- III.

Th e district court's order awarding attorney's fees and litigatio n costs is reversed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.