     ___________

     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,   and
     LONGSTAFF,1 District Judge.

                                   ___________




      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   The district court consequently rescinded the injunctive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. § 12205 (1994), 29 U.S.C. § 794a(b)
(1994), and 42 U.S.C. § 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. § 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




                                    -2-
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




                                     -3-
"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.




     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.

                                    -4-
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.3    We disagree.


     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 . . . .


                                     -5-
     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




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.

                                    -6-
                                 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.




                                 -7-
