Petition — Marshall v. Doe ex rel. Doe

Office-Supreme Court, U.S.

; : 1654 FILED

2 No. APR § 1983

ALEXANDER C. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

BAILEY MARSHALL, DIRECTOR OF THE

UNIVERSITY INTERSCHOLASTIC LEAGUE,

AND MEMBER OF THE EXECUTIVE

COMMITTEE, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY, ET AL.,

Petitioners

V.

JANE DOE, ON BEHALF OF JOHN DOE,

A MINOR,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JIM MATTOX LOU McCREARY

Attorney General of Texas Chief, State & County Affairs

DAVID R. RICHARDS LAURA S. MARTIN

Execuiive Assistant Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-4481

Attorneys for Petitioners

QUESTION PRESENTED FOR REVIEW

The principle question presented for review is:

Whether the Court of Appeals correctly held that Jane

Doe, as Plaintiff, was a “prevailing party’’ for purposes

of attorney’s fees under 42 U.S.C. §1988 in light of

special circumstances presented by this case.

-ij-

TABLE OF AUTHORITIES

Cases

Board of Public Instructions of Taylor

County v. Finch, 414 F.2d

1068 (5th Cir. 1969)

Doe v. Busbee, 684 F.2d 1375 (5th Cir. 1982) .. .

Doe v. Marshall, 622 F.2d 118 (5th Cir.1980)

cert. denied, 451 U.S.993(1981) ...........

Fortson v. Dorsey, 379 U.S. 433 (1965) ........

Hanrahan v. Hampton, 446 U.S. 754 (1980) .....

Hedberg v. State Farm Mutual Automobile

Insurance Co., 350 F.2d 924 (8th Cir.1965) .... .

Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980)

Monell v. Soc. Serv. of New York,

PTET cece sets cesececsesesceees

Morrow v. Dillard, 580 F.2d 1284

8 ASS

Newman v. Piggie Park Enterprises,

390 U.S. 400(1967) ............ cee eee ee

North Haven Board of Education, et al. v.

Terrel H. Bell, Secretary, Department of

Education, et al., U.S. (1982) .....

Oshiver v. Philadelphia Court of Common

Pleas, 497 F.Supp. 416 (E.D.Pa. 1980) .......

Planned Parenthood of Minnesota, Inc. v.

Citizens for Community Action, 558

ER MUG BOTED crs vst varcdcensens

Smith v. Universty of North Carolina,

632 F.2d 316 (4th Cir. 1980) ................

Page

er 9,10

hii-

Williams v. Alioto, 625 F.2d 845

(9th Cir. 1980), cert. denied, 450

5. MELON bs icv oe Peeve teed estar tr soe ey |

Younger v. Harris, 401 U.S.37(1971) ...... eye eee

INDEX

Page

QUESTION PRESENTED FOR REVIEW ....... ann arate

PARTIES TOTHE PROCEEDINGS .......... ROAR OY

INDEX OF AUTHORITIES ............. aT ate ee

OPINIONS BELOW ......... SEP Mh Aa em ere eee 3

IE OEE eres Ire Roa Pay 3

STATUTE INVOLVED ....... SAPO One een seat

STATEMENT OF THECASE ............. rear 6

REASONS FORGRANTING THE WRIT ..................9

I 5 o's. 0 80695 ed LOC CR Ra Laas Se alee eer 13

eg ge yy dt gy rrr 14

EE rao ees Wk as oak Raia ee ite en Daatecie ee

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

BAILEY MARSHALL, DIRECTOR OF THE

UNIVERSITY INTERSCHOLASTIC LEAGUE,

AND MEMBER OF THE EXECUTIVE

COMMITTEE, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY, ET AL.,

Petitioners

V.

JANE DOE, ON BEHALF OF JOHN DOE,

A MINOR,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, Bailey Marshall, Director of the Universi-

ty Interscholastic League, and member of the Executive

Committee, individually, and in his official capacity, et

al., respectfully pray that a Writ of Certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Fifth Circuit entered on

January 6, 1983.

PARTIES TO THE PROCEEDING

In the District Court below, Jane Doe, on behalf of her

minor son, John Doe, as Plaintiff, brought suit against:

Bailey Marshall, Director of the University In-

terscholastic League, and member of the ex-

-2-

ecutive committee, individually and in his of-

ficial capacity;

William Farney, State Athletic Director of the

University Interscholastic League, and

member of the Executive Committee, in-

dividually and in his official capacity;

Thomas M. Hatfield, Chairperson of the

University Interscholastic League Legislative

Council and member of the Executive Commit-

tee, individually and in his official capacity;

Other members of the University In-

terscholastic League Executive Committee:

Lynn F. Anderson, Lynn W. McCraw, Betty

Thompson, Clifton Van Dyke, Jesse J.

Villareal, and June S. Williams, each individual-

ly and in his official capacity;

Dr. Emmett McKenzie, Jr., Superintendent of

Alvin Independent School District, in his of-

ficial capacity.

All of the individuals serve in the capacities described

except Clifton Van Dyke and June S. Williams, who no

longer serve as members of the University In-

terscholastic League Executive Committee, and

Thomas M. Hatfield who now serves as Chairperson of

the Executive Committee. However, Bailey Marshall as

Director of the Univeristy Interscholastic League is the

real party in interest and no defect as to parties is alleg-

ed by Petitioners.

-3-

OPINIONS BELOW

The opinion of the Court of Appeals, for which review

is sought, is reported at 694 F.2d 1038. A copy of the

opinion is included in the Appendix to this

Petition. The District Court order is not reported but is

included in the Appendix together with the District

Court’s judgment. The earlier opinion and judgment of

the Fifth Circuit are also set out in the Appendix

together with the District Court’s earlier opinion

(entered as ‘“‘Reasons for Granting Preliminary Injunc-

tion’’).

JURISDICTION

The opinion of the Court of Appeals was entered on

January 6, 1983. This Court’s jurisdiction is invoked

under 28 U.S.C. §1254(1).

STATUTES INVOLVED

The statutes in question in this case are Section 504 of

the Rehabilitation Act of 1973, codified as 29 U.S.C.

§794; 42 U.S.C.A. §1988; and Art. VIII, Secs. 13 and 14

of the Constitution of the University Interscholastic

League (UIL) for 1978-1979.

Section 504 of the Rehabilitation Act of 1973, original-

ly provided:

“No otherwise qualified handicapped individual

in the United States, as defined in section 7(6)

(29 U.S.C. §706[6]), shall solely by reason of his

handicap, be excluded from the participation in,

be denied the benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance.”

-4-

Section 504 was amended in 1978 to provide for non-

discrimination by federal agencies, and after amend-

ment now reads:

‘No otherwise qualified handicapped individual

in the United States, as defined in section 7(7)

(29 U.S.C. §706[7]), shall solely by reason of his

handicap, be excluded from the participation in,

be denied the benefits of, or be subjected to

discrimination under any program or activity

receiving federal financial assistance or under

any program or activity conducted by any Ex-

ecutive agency or by the United States Postal

Service. The head of each such agency shall

promulgate such regulations as may be

necessary to carry out the amendments to this

section made by the Rehabilitation, Com-

prehensive Services, and Developmental

Disabilities Act of 1978. Copies of any propos-

ed regulation shall be submitted to appropriate

authorizing committees of the Congress, and

such regulation may take effect no earlier than

the thirtieth day after the date on which such

regulation is so submitted to such

committees.”

The Attorneys’ Fees Act, 42 U.S.C.A. §1988, pro-

vides:

The jurisdiction in civil and criminal matters

conferred on the district courts by the provi-

sions of this chapter and Title 18, for the protec-

tion of all persons in the United States in their

civil rights, and for their vindication, shall be

exercised and enforced in conformity with the

laws of the United States, so far as such laws

are suitable to carry the same into effect; but in

all cases where they are not adapted to the ob-

ject, or are deficient in the provisions necessary

to furnish suitable remedies and punish of-

fenses against law, the common law, as

Ge

modified and changed by the constitution and

statutes of the State wherein the court having

jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with

the Constitution and laws of the United States,

shall be extended to and govern the said courts

in the trial and disposition of the cause, and, if

it is of a criminal nature, in the infliction of

punishment on the party found guilty. In any

action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985, and 1986 of

this title, title IX of Public Law 92-318, or in

any civil action or proceeding, by or on behalf of

the United States of America, to enforce, or

charging a violation of, a provision of the

United States Internal Revenue Code, or title

VI of the Civil Rights Act of 1964, the court, in

its discretion, may allow the prevailing party,

other than the United States, a reasonable at-

torney’s fee as part of the costs.”

Article VIII, Section 13 of the Constitution of the

University Interscholastic League (UIL) for 1978-1979,

provides as follows:

Sec. 13. Changing Schools—A pupil changing

schools is not eligible in League contests, until

he has been in attendance at the school to which

he changes for one year if: a) his parents reside

outside the school district; or 2) his parents

reside outside the school attendance zone in

school districts with more than one high school.

Article VIII, Section 14 of said Constitution provides

in relevant part (with inapplicable exceptions omitted)

as follows:

Sec. 14. One Year Rule—A pupil who has

represented a high school (other than his pre-

sent school) in either football or basketball is in-

6-

eligible, only in the sport or sports (football or

basketball) in which he participated, for one

calendar year in a school to which he changes.

STATEMENT OF THE CASE

Jane Doe filed suit anonymously on behalf of her son,

John Doe, an emotionally handicapped minor, against

officials of the Texas University Interscholastic League

in their individual and official capacities. The suit alleg-

ed that the ‘‘no transfer’’ rule imposed by UIL on all

Texas public high school students violated 29 U.S.C.

§794 (hereinafter referred to as Section 504) which pro-

hibits discrimination against handicapped persons by

those operating any program or activity receiving

federal financial assistance. Jane Doe sought a

preliminary injuction to allow her son to play football in

the school district where he was residing with his grand-

mother after psychiatric evaluations and a therapist

recommended he be temporarily removed from his

parents’ residence.

The immediate transfer of Jane Doe's son to another

school district, coupled with his request to play football

with that district’s football team, violated the UIL’'s

rules which required one year of residency in a school

district prior to a student being eligible to participate in

high school athletics. Jane Doe did not seek to in-

validate the UIL ‘‘no transfer’’ rule or to test its con-

stitutionality. She merely alleged the District Court

had jurisdiction to grant her a private cause of action to

show that the effect of the UIL rule violated Section 504

of the federal law and its implementing regulations

under 45 C.F.R. 84.36, et seg. She alleged that Section

504 and its regulations required the UIL to make a

reasonable accommodation to the needs of her “‘han-

dicapped”’ son since he was attempting to participate in

a program or activity which received federal financial

assistance.

.

«3

.

The UIL filed a motion to dismiss arguing, inter alia,

that the DistrictCourt had no jurisdiction to hear a

private individual’s complaint which alleged violations

of Section 504 and, alternatively, that Jane Doe had to

exhaust her administrative remedies prior to bring

suit. Hearing was set by the District Court to show

cause why a preliminary injunction should not issue to

restrain the UIL from barring John Doe from playing

football (only) in the school district to which he had

transferred. At the hearing, the UIL denied that it was a

recipient of federal financial assistance for regulatory

purposes under Section 504. It further argued that

Jane Doe had not made the prerequisite showing that

the UIL had received such funds. Further more, Jane

Doe did not show that her minor son, because of the

UIL’s treatment of his case, was subjected to treatment

any different from that of other individuals falling under

the provisions of the UIL’s ‘‘no transfer’ rule. The

District Court, however, granted a preliminary injunc-

tion enjoining the UIL from interfering with or preven-

ting the minor John Doe from full participation in the

football program at his new school. While the court

specifically found that Joha Doe was a “handicapped”

individual within the provisions of Section 504 and that

Section 504 provided a private cause of action to him, it

made no finding that the UIL was a recipient of federal

financial assistance or that federal money for athletics

had been directly or indirectly received by the UIL.

The UIL filed notice of appeal and costs bond in the

amount of $250.00. On the same day a notice of appeal

was filed, the UIL filed an application for stay pending

appeal. Stay was denied by the District Court.

During the pendency of the appeal, John Doe

graduated from high school after having continued to

play football throughout his senior year. In supplemen-

tal briefs prior to oral argument, at oral argument, and

-8-

in post-submission memorandums, attorneys for both

the UIL and Jane Doe agreed that the case on appeal

was not moot. Both parties argued that a decision was

needed on the substantive issues at bar so that a proper

deter nination could be made of whether or not Jane Doe

was a “prevailing party’’ for purposes of attorney's

fees. It was further agreed by the parties that, without

a determination of the validity of the District Court's

decision, it would be illogical and unfair for one litigant

to subject another to an assessment of attorney’s fees as

a result of a wrongly decided preliminary order.

The Court of Appeals vacated the preliminary injunc-

tion and held that the case was moot because John Doe

had graduated from high school. The court refused to

determine the issues raised by the mooted suit and in-

stead held that, because she had obtained beneficial in-

junctive relief in the District Court, Jane Doe was a

prevailing party for purposes of 42 U.S.C. §1988 and en-

titled to ‘appropriate attorney's fees.""’ The UIL then

petitioned this Court for writ of certiorari. The Court

denied the petition, with dissent, in May, 1981. Hearing

was then held before the District Court for a determina-

tion of appropriate attorney's fees. The District Court

awarded attorney's fees in the amount of $8,625.00. Ap-

peal of the award was made to the Court of Appeals

which subsequently held that circumstances were not

present in the case which would inhibit the court from

applying the “‘law-of-the-case”’ principle enunciated in

Morrow v. Dillard, 580 F.2d 1284 (5th Cir. 1978).

1. The Court of Appeals’ earlier decision in this case was reported

as Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980), cert. denied, 451

U.S. 993 (1981).

-9-

REASON FOR GRANTING THE WRIT

From its inception this case has raised serious

jurisdictional issues under Section 504 and 42 U.S.C.

§1983. Specifically, the district court did not decide

whether the UIL was a “‘recipient’”’ of federal financial

assistance so as to trigger the regulatory provisions of

Section 504 or whether any discriminatory treatment

was administered to John Doe in the UIL’s considera-

tion of his case. Certainly these threshold questions

should have been resolved by the courts before it was

determined that Jane Doe was, in fact and law, a

“prevailing party’’ for the purposes of attorney’s

fees. Instead, the mere entry of preliminary injunctive

relief for Jane Doe—whether it was legally permissible

or not—has now allowed her to recover $8,625.00 in at-

torney’s fees.

The question of whether such action should allow an

award of attorney’s fees to stand against individuals

who are officials of the State of Texas is of sufficient im-

portance to merit resolution by this Court.

1. The Court of Appeal’s decision is in

conflict with the Court’s decision in

Hanrahan v. Hampton, 466 U.S. 754

(1980); Doe v. Busbee, 684 F.2d 1375

(5th Cir. 1982); and Smith v. Universi-

ty of North Carolina, 632 F.2d 316 (4th

Cir. 1980).

This Court has stated that Congress has authorized

an attorney’s fee award ‘‘to a party who has established

his entitlement to some relief on ‘xe merits of his

claim.’’ Hanrahan v. Hampton, supra at 757. (emphasis

added). In other words, a party prevails in a lawsuit

when he establishes a legal entitlement to what he seeks,

not when what he seeks is actually delivered. Cf.

Knighton v. Watkins, 616 ¥.2d 795, 799 (5th Cir. 1980).

-10-

The central question in this case has always been

whether or not Jane Doe was legally entitled to bring

her cause of action against the UIL. While it is true

that Doe sought to have her son play football at the

school of his choice and subsequently received injunc-

tive relief which allowed him to play, the relief she ob-

tained was only preliminary and should not have been

considered a win on the merits. See Hanrahan, supra;

Smith v. University of North Carolina, supra; Oshiver v.

Philadelphia Court of Common Pleas, 497 F.Supp. 416

(E.D. Pa. 1980). The preliminary relief granted in the

case at bar, although substantive, never determined the

actual merits of Jane Doe’s claims. No finding was

made that John Doe was discriminated against by the

UIL, or that he was treated differently from any student

falling under the provisions of the UIL’s rules. The

record itself shows conclusively that John Doe was not

treated any differently under the UIL rule because of his

handicap; instead, the suit sought special treatment for

him—exclusion from the provisions of a rule which,

heretofore, had been applied equally to every student

regardless of their personal circumstances. See Fortson

v. Dorsey, 379 U.S. 433 (1965).

More importantly, the record shows that the District

Court failed to make a crucial jurisdictional finding

under Section 504 prior to entering injunctive relief for

Jane Doe: the court failed to find that the UIL was a

recipient of federal financial assistance.

In order for Jane Doe to have established any right

under Section 504 (and, therefore, under Section 1983),

she had to show that the UIL conducted a ‘“‘program or

activity receiving federal financial assistance,’’ 29

U.S.C. §794 (Section 504 herein), or that the UIL was a

public entity”’... to which federal financial assistance (is)

extended directly or through another recipient; in-

cluding any successor, assignee, or transferee of a reci-

pient, but excluding the ultimate beneficiary of the

assistance.’ 45 C.F.R. §84.3(f). As earlier noted, the

“3i-

District Court made no finding as to federal financial

assistance which would support the application of Sec-

tion 504.

In construing Section 901(a) of Title IX of the Educa-

tion Amendment of 1972, a statute similar to Section

504, this Court has held that to trigger statutory

coverage, the threshold question of whether the pro-

gram in question receives federal financial assistance

must first be answered. North Haven Board of Educa-

tion, et al v. Terrel H. Bell, Secretary, Department of

Education, et al, USS. 102 S.Ct. 1912

(1982). See also Board of Public Instruction of Taylor

County, Fla. v. Finch, 414 F.2d 1068 (5th Cir. 1969). The

Court’s decision in North Haven Board of Education

underscores the UIL’s position that the District Court

did not have jurisdiction under Section 504 to enter the

preliminary injunction.

The Court of Appeals concluded, however, that

because the case was ‘‘moot’’ on appeal, the court was

precluded from determining whether the District Court

was in error when it entered preliminary injunctive relief

for Jane Doe. The sole fact that John Doe was allowed

to play football under an erroneously entered injunc-

tion—an injunction which was awarded pursuant to a

mistake of law—is not legally sufficient justification to

allow an attorney’s fee award to stand. Doe v. Busbee,

Supra. See Planned Parenthood of Minnesota, Inc. v.

Citizens for Community Action, 558 F.2d 861 (8th Cir.

1977); Hedberg v. State Farm Mutual Automobile In-

surance Co., 350 F.2d 924 (8th Cir. 1965).

A prevailing party ‘should ordinarily recover an at-

torney’s fee unless special circumstances would render

such an award unjust.’’ Newman v. Piggie Park Enter-

prises, 390 U.S. 400 (1967). The circumstances

presented by the case at bar—unresolved jurisdictional

questions coupled with the fact that no significant issue

raised by Jane Doe has ever been resolved in her

-12-

favor—clearly demonstrate that this Court should ex-

amine the Court of Appeals’ decision and determine

whether attorney’s fees were properly entered in the

case pursuant to 42 U.S.C. §1988 and the “prevailing

party”’ standard.

2. The award of attorney's fees violates

due process and ‘Our Federalism.”

The courts’ award of attorney’s fees against the nam-

ed defendants, without an examination of their

arguments regarding the District Court’s (lack of)

jurisdiction, violates the Fifth Amendment and the Due

Process Clause of the Fourtheenth Amendment to the

United States Constitution.’ Without regard to the

question of whether the UIL is a person, ‘‘Our

Federalism’’, together with the Fifth Amendment’s

guarantee of fundamental fairness, constitutionally pro-

hibits the federal government, by enacting 42 U.S.C.

§1988 and by judicial interpretation, from exacting

money from the states and their agencies without a

showing of culpability. Younger v. Harris, 401 U.S. 37

(1971). Congress simply cannot impose sanctions over

state defendants and permit a monetary recovery,

awarded by either a whim or mistake of the federal

judiciary, unless those defendants are first given the

chance to expose the error of a court’s action. Imposing

substantial liabilities on a state or its agents without re-

quiring a finding of fault offends the doctrine of ‘‘Our

Federalism.’”

2. Whether the UIL is a ‘‘person”’ within the parameters of the

Fourteenth Amendment has never been resolved. See Monell v.

Soc. Serv. of New York, 436 U.S. 658 (1978). However, it should be

noted that there are nine defendants in the case at bar who have

been sued in their “individual” capacities. Clearly the rights of

these persons are protected by the Fourteenth Amendment. At-

torney’s fees should not issue against them in the absence of bad

faith. Williams v. Alioto, 625 F.2d 845, 848 (9th Cir. 1980) (per

curiam), cert. denied, 450 U.S. 1012 (1981).

3. As U.S.C. §1988 has been construed by the Court of Appeals,

the statute is ‘“‘appropriate’’ legislation for triggering the

guarantees of the Fourteenth Amendment of the U.S. Constitution.

-13-

CONCLUSION

The Petition for Writ of Certiorari should be granted

for the reasons set out above.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

DAVID R. RICHARDS

Executive Assistant

LOU McCREARY

Chief, State & County Affairs

LAURA S. MARTIN

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-4481

Attorneys for Petitioners

-]4-

CERTIFICATE OF SERVICE

I, Laura S. Martin, Assistant Attorney General, do

hereby certify that three copies of the foregoing Petition

for Writ of Certiorari to the United States Court of Ap-

peals for the Fifth Circuit was served upon Respondent

by depositing same in the United States mail, certified,

return receipt requested to the following attorney of

record for Appellee-Respondent: Mr. Matthew

Horowitz, University of Connecticut School of Law,

Civil Clinic, 1800 Asylum Avenue, West Hartford, Ct

06117, on this the day of April, 1983.

LAURA S. MARTIN

Assistant Attorney General

APPENDIX

APPENDIX

1. Opinion of the Court of Appeals

2. District Court Order

3. District Court Judgment

4. Fifth Circuit Judgment

5. Opinion of the Court of Appeals (Earlier)

6. Fifth Circuit Judgment (Earlier)

7. District Court Order (Earlier) [‘‘Reasons for Gran-

ting of Preliminary Injunction’’]

A-l

JANE DOE, on behalf of John Doe, a minor,

Plaintiffs-Appellees,

Vv.

BAILEY MARSHALL, Director of the

University Interscholastic League,

et al, Defendants-Appellants.

No. 82-2107

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 6, 1983.

Following remand, 622 F.2d 118, of appeal from judg-

ment entered by the United States District Court for the

Southern District of Texas, Cowan, J., 459 F.Supp.

1190, in civil rights action, the District Court, Hugh

Gibson, J., entered award of attorney fees, and appeal

was again taken. The Court of Appeals, Tate, Circuit

Judge, held that prior appellate decision that attorney

fees could be awarded in civil rights case absent deter-

mination of merits of plaintiff's underlying cause of ac-

tion where plaintiff, who obtained requested preliminary

relief, was found to be prevailing party was controlling

“law of case’”’ upon appeal from attorney fee award made

on remand, and the Court of Appeals was not required,

on the prior appeal, to have vacated District Court judg-

ment and remanded with directions to dismiss, even

though injunctive relief sought was found to have

become moot.

Affirmed.

Federal Courts —917

Prior appellate decision that attorney fees could be

awarded in civil rights case absent determination of

A-2

merits of plaintiff’s underlying cause of action where

plaintiff, who obtained requested preliminary relief, was

found to be prevailing party was controlling “law of

case’’ upon appeal from attorney fee award made on re-

mand, and the Court of Appeals was not required, on the

prior appeal, to have vacated district court judgment

and remanded with directions to dismiss, even though

injunctive relief sought was found to have become moot.

Appeal from the United States District Court for the

Southern District of Texas.

Before GEE, RANDALL and TATE, Circuit Judges.

TATE, Circuit Judge:

This is an appeal from an award of attorney’s fees. 42

U.S.C. § 1988. Finding that the issue presently raised

was determined adversely to the defendants-appellants

on a prior appeal, we affirm on the ‘“‘law of the case’”’

principle.

On a prior appeal, we found that subsequent events

had mooted the preliminary injunctive relief initially af-

forded the plaintiff, and—over objection of the defen-

dants that the merits should be determined—vacated

the preliminary injunction as moot and remanded the

case to the district court ‘‘for a determination of ap-

propriate attorney’s fees.’’ Doe v. Marshall, 622 F.2d

118, 120 (5th Cir.1980), cert. denied, sub. nom. Marshall

v. Doe, 451 U.S. 993, 101 S.Ct. 2336, 68 L.Ed.2d 855

(1981). In so remanding, this court specifically found

that the plaintiff was a prevailing party by virtue of the

preliminary relief obtained. Id., 622 F.2d at 120.

By this second appeal, the defendants question the

award of attorney’s fees by the district court on

remand. No issue is raised as to the amount; the sole

A-3

issue asserted is that the district court abused its discre-

tion in making any award at all under the special cir-

cumstances presented by this case. The special cir-

cumstance relied upon is that, allegedly, neither the trial

nor appellate court had ever determined, prior to the re-

mand hearing, that the plaintiff would prevail on the

merits of her claim.’ The defendants argue that this

determination is a prerequisite to holding her to be a

prevailing party. The defendants especially point out

1. The basic suit is by the parent of a psychiatrically-handicapped

child against the denial of her boy's right to participate in his high

school football program. The cause of action is grounded upon Sec-

tion 504, Rehabilitation Act of 1973, 29 U.S.C. § 794, which forbids

denial of participation to handicapped children, by reason of their

handicap, in any program receiving federal financial

assistance. The defendants are the officers of an inter-high school

league (which enforced a rule making the boy ineligible to play foot-

ball), as well as the local school superintendent. The district court

granted a preliminary injunction, specifically rejecting the defen-

dants’ contentions (a) that no private cause of action was created by

section 794 and (b) that further exhaustion of administrative

remedies were required; the court also rejected, but by implication

only, a third contention: (c) that the League was not the “‘recipient”’

of federal funds, because the dues for its support were paid by

member high schools (from funds that included commingled federal

funds). (The evidence also shows that the high school football pro-

gram itself, participation in which was denied the handicapped boy,

was in part directly supported by federal funds.) Conceding the un-

disputed facts as to funding, the defendants urged (a), (b), and (c) on

the first appeal. Our decision on first appeal, while determining the

(a) issue adversely in order to ascertain federal jurisdiction, 622

F.2d at 118 n. 1, did not determine the other issues, in holding the

injunctive relief now moot because the boy had now graduated from

high school and had played football (as sought by the suit)

throughout his senior year.

A-4

that the courts have never definitively passed upon one

disputed essential of the plaintiff's cause of action.’

On the first appeal to this court, in rejecting the defen-

dants’ contention as to non-mootness, we specifically re-

jected the defendants’ present contention that no at-

torney’s fees could be awarded in this civil rights case

absent a determination of the merits of the plaintiff's

underlying cause of action. We held that under the At-

torneys’ Fees Act, 42 U.S.C. § 1988, it was necessary to

determine only whether the plaintiff was a ‘‘prevailing

party’. 622 F.2d at 199-20 n. 4. Finding that the plain-

tiff was a prevailing party because she obtained the

primary relief sought, we remanded to the district court

for a determination of the appropriate attorneys’

fees. 622 F.2d at 120.’

Under the ‘“‘law of the case’ principle, the issue now

raised on this second appeal, having been determined

adversely to the defendants on the first appeal, may not

be re-litigated on this second appeal but instead will be

decided in accordance with the ruling enunciated on that

prior appeal. As stated by us in Morrow v. Dillard, 580

F.2d 1284, 1289-90 (5th Cir.1978):

2. The defendants point out (see (c) note 1supra) that the issue had

never been explicitly determined whether enforcement of a rule by a

League (only indirectly financed from federal funds), by a high

school athletic program (which was in part federally financed), con-

stituted the League a ‘‘recipient”’ of federal funds under section 794,

so as thus to bring it within the statutory rule preventing them

from denying participation in an athletic program.

3. The holding is in accord with later decisions of this circuit, such

as Williams v. Leatherbury, 672 F.2d 549 (5th Cir.1982) and Deer-

field Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338-

39 (5th Cir.1981) (explaining the application of a United States

Supreme Court decision that defendants rely upon to contrary ef-

fect, as permitting the award of attorneys’ fees to a prevailing party

who obtains preliminary injunctive relief only).

A-5

The doctrine of ‘‘law of the case”’ is a rule of

practice under which a rule of law enunciated

by a federal court ‘‘not only establishes a prece-

dent for subsequent cases under the doctrine of

stare decisis, but [also] establishes the law

which other courts owing obedience to it must,

and which it itself will, normally, apply to the

same issues in subsequent proceedings in the

same case.” 1B Moore’s Federal Practice 4

0.404[1] (2d ed. 1974)(footnotes omitted, em-

phasis in original). The doctrine is ‘‘based upon

sound policy that when an issue is once

litigated and decided, that should be the end of

the matter.’’ United States v. United States

Smelting, Refining & Mining Co., 339 U.S. 186,

198, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950); Fon-

tainebleau Hotel Corp. v. Crossman, 286 F.2d

926, 928 (5th Cir.1961)."

The defendants inferentially recognize that they can

obtain no relief on the present appeal unless our prior ap-

pellate ruling is ignored or set aside.

4. Morrow v. Dillard (quoting the 1967 Fifth Circuit decision,

White v. Murtha, 377 F.2d 428, 431-32) also notes, 580 F.2d at 1290:

While the ‘‘law of the case’’ doctrine is not an inex-

orable command, a decision of a legal issue or issues by an

appellate court establishes the “law of the case” and

must be followed in all subsequent proceedings in the

same case in the trial court or on a latter appeal in the ap-

pellate court, unless [1] the evidence on a subsequent trial

was substantially different, [2] controlling authority has

since made a contrary decision of the law applicable to

such issues, or [3] the decision was clearly erroneous and

would work manifest injustice.

None of these exceptions are shown to be applicable here.

A-6

On this second appeal, they now contend that, upon

finding the prior appeal to be moot, the deciding panel in

the earlier appeal should have followed the general rule

applicable when an appeal is mooted: to vacate the

district court judgment and to remand with directions

to dismiss the case, so as to prevent preclusive effect of

the first appellate opinion. United States v. Muns-

ingwear, Inc. 340 U.S. 36, 39-40, 71 S.Ct. 104, 106-07, 95

L.Ed. 36 (1950). See, e.g., University of Texas Systems

v. Assaf, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81

(1978). The defendants suggest that, due to the prior

panel’s failure to follow this general rule, the preclusive

danger inherent in failing to vacate the judgment has

come to pass in this case. Accordingly, they call upon

this panel in this second appeal to set aside the decree in

the first appeal and to order dismissal of the case on the

merits, as allegedly should have been ordered on the in-

itial appeal.’

In making this contention that the prior appellate

decision in this case was in error, the defendants essen-

tially reurge contentions rejected by this court on the

earlier appeal. As previously noted, in absence of excep-

tional circumstances not here shown to be present, the

law-of-the-case principle inhibits us from resurrecting

and giving favorable consideratin to contentions

previously rejected by this court on the earlier appeal.

Accordingly, we AFFIRM the judgment below that

awarded the plaintiff, as the prevailing party, attorneys’

fees under 42 U.S.C. § 1988.

AFFIRMED.

5. The defendants call on this panel upon this second appeal, ‘‘to

review its [this Court's] earlier decision in this case’’ and to ‘‘remand

the case back to the district court with an order to dismiss the case”’

so as to conform with the general mootness rule in Munsingwear-

Assaf. Appellants’ Reply Brief, pp. 7-9.

A-7

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

JANE DOE, on behalf of §

John Doe, Plaintiff §

5

§ CIVIL ACTION

Vv. § No. G-78-174

§

BAILEY MARSHAL, etc.,§

et al, Defendants §

ORDER

Plaintiff brought this action for injunctive relief on

behalf of her minor son, alleging that defendants had

violated his rights under section 504 of the Rehabilita-

tion Act of 1973, 29 U.S.C. §794. This Court’s

predecessor, the Honorable Finis E. Cowan, granted a

preliminary injunction and the defendants appealed.

During the pendency of this appeal, the plaintiff’s re-

quest for injunctive relief became moot. Accordingly,

the Fifth Circuit declined to hear the merits of the

case. The Court of Appeals determined, however, that

plaintiff was the prevailing party under the attorneys

fees provision of the Civil Rights Act of 1964, 42 U.S.C.

§1988, and remanded the case to this Court for a deter-

mination of appropriate attorneys fees. Defendants

have repeatedly diverted this Court’s attention from the

narrow inquiry into attorneys fees with arguments that

the Court should ignore the clear mardate of the Fifth

Circuit and proceed to relitigate the merits of the

case. Defendants’ arguments strike no responsive

chord; this Court sits to enforce the mandates of the

Fifth Circuit, not to question them.

In awarding attorneys fees, the Court is guided by

Johnson v. Georgia Highway Express, Inc., 488 F.2d

714 (5th Cir. 1974). In Johnson, the Fifth Circuit set

A-8

forth twelve factors to be considered by the district

court in arriving at an award of attorneys fees. Jd. at

717-19. No one factor is controlling and all should be

considered to the extent that they are relevant to the

case.

Plaintiff's counsel seeks an award of attorneys fees at

an hourly rate of $75 on a claim of 178.5 hours. Counsel

expended 20 hours in the commencement of the action

and the securing of preliminary injunctive relief for his

client. Thirty hours of legal time are claimed in connec-

tion with research, preparation of memoranda, motions

and affidavits in connection with an award of attorneys

fees. A vast majority of the hours claimed, 128.5 hours,

was consumed in the appellate process. A total of 114

hours involved defendants’ appeal to the Fifth Circuit,

and 14.5 hours were related to defendants’ unsuccessful

petitioning of the Supreme Court for a writ of certiorari.

In assessing counsel’s hourly claim, the Court must

weight the claim against its own knowledge, experience

and expertise of the time required to complete similar

activities. Johnson v. Georgia Highway Express, supra,

at 717. In considering the hourly claim, the Court must,

of course, take into account the novelty and difficulty of

the questions involved in the case, and the skill requisite

to the proper performance of legal services. At the com-

mencement of this action, the case was for all practical

purposes one of first impression with respect to several

significant legal issues. A threshhold inquiry of over-

riding significance was whether section 504 of the

Rehabilitation Act secured the plaintiff a private right

of action. Beyond this, the question of what constituted

discrimination under section 504 was and continues to

be, a matter of some dispute. The factual questions in

this case, however, were neither difficult nor novel; nor

was the standard required for obtaining preliminary in-

junctive relief.

A-9

Counsel for a prevailing civil rights litigant is entitled

to compensation for all time reasonably expended in ad-

vancing his client’s interest. Knighton v. Watkins, 616

F.2d 795, 801 (5th Cir. 1980). Without a doubt, counsel

is entitled to compensation for the 20 hours expended in

securing preliminary injunctive relief for his ciient. The

Court finds, however, that the expenditure of 114 hours

in connection with defendants’ appeal to the Fifth Cir-

cuit was excessive. When appeal was taken, the case re-

mained essentially one of first impression involving

several significant and complex legal issues. An ap-

pellate decision on the merits of these issues would have

been of considerable precedential value. The record

reflects that counsel expended 72 hours in research and

drafting of plaintiff's appellate brief. There is no ques-

tion as to the excellence of counsel’s work product, his

preparation, and the general ability displayed before

this Court and the Court of Appeals. Nevertheless,

counsel had initially explored and developed the legal

issues at the lower court level, and the expenditure of

such vast amounts of time in connection with the

presentation of legal issues on appeal was not

reasonably necessary.

The case became moot while on appeal. Through a

combination of the preliminary relief granted and the

passage of time, plaintiff ultimately obtained all relief

sought. Even had the Fifth Circuit considered the case

on the merits and reversed, plaintiff would still have ob-

tained all the relief sought.

The Fifth Circuit’s decision thus addressed only one

aspect of the case: whether the plaintiff was a ‘‘prevail-

ing party’’ so as to permit an award of reasonably

necessary attorneys fees. Counsel seeks compensation

for 32 hours expended in researching and drafting a sup-

plemental brief on the mootness and attorneys fees

issues, in oral arguments before the Court of Appeals,

and in supplemental letter briefs requested by the Fifth

Circuit. The Court is of the opinion that counsel spent

A-1l9

more time than is reasonably necessary in connection

with these efforts. First, it is unclear to the Court why

counsel required 12 hours for the research and prepara-

tion of a five-page supplemental appellate brief in view

of his previous expenditure of 18 hours in the resear-

ching and drafting of a memorandum on attorneys fees

filed in this Court. Second, although counsel expended

10.5 hours in the research and drafting of two letters re-

quested by the Fifth Circuit in light of its intervening

decision in Camenisch v. University of Texas, 616 F.2d

127 (5th Cir. 1980), some of this effort involved a reitera-

tion of matters discussed in plaintiff's supplemental

brief.

In sum, the Court finds that counsel is not entitled to

compensation for all the time claimed in advancing his

client’s interests before the Fifth Circuit. An award tak-

ing into consideration an expenditure of 60 hours before

the appellate court will reasonably compensate counsel

for his legal representation. The Court, however, will

award counsel compensation for all hours claimed in con-

nection with defendants’ unsuccessful petition to the

Supreme Court for a writ of certiorari.

It is clear that it is defendants who, for the most part,

have made the issue of attorneys fees a battleground in

this case. Obviously, plaintiff's counsel is entitled to

compensation for all time reasonably expended in con-

nection with this issue. Johnson v. Mississippi, 606

F.2d 635 (5th Cir. 1979). Counsel claims 30 hours in con-

nection with the presentation of the attorneys fees issue

before this Court. Even taking into account that the

amount of time expended by counsel was dictated prin-

cipally by defendants’ strident opposition to the proprie-

ty of the award, the Court finds an expenditure in excess

of 20 hours was not reasonably necessary. Therefore,

the Court will award attorneys fees in consideration of

the expenditure of 115 hours, which the Court finds was

reasonably necessary in the advancement of plaintiff's

interests.

A-11

Counsel seeks compensation at a rate of $75 per

hour. There is substantial evidence in the record that

$75 per hour is the customary fee for similar work in this

community. Plaintiff's counsel, however, misreads

Johnson in arguing that the fee rate in civil rights cases

should be predicated upon the customary fee in the com-

munity. Clearly, it is an important, but not controlling,

consideration. Johnson v. Georgia Highway Express,

supra, at 718. While the Court finds an hourly award of

$75 to be appropriate under the circumstances in this

case, it has not done so without consideration of the

manifold factors set forth inJohnson. Asa general rule,

more experienced attorneys should receive greater com-

pensation. However, the young attorney who

demonstrates requisite skill and ability, particularly one

who specializes in the area of civil rights, should not be

penalized for only recently being admitted to the bar. In

this case, plaintiff received competent, workmanlike,

and effective assistance of counsel. As a direct result of

counsel’s efforts, plaintiff received all relief to which she

alleged entitlement. The fact that plaintiff's counsel

had been practicing law for only two years at the time

this action was commenced is of no moment in view of

the skill and diligence with which counsel prosecuted

plaintiff's law suit. See Jd. at 718-19. Moreover,

counsel, as an employee of the American Civil Liberties

Union, agreed to take the case without a fixed or con-

tingent fee, and has looked only to the statutory provi-

sions as a basis for an award. An hourly award of $75 is

consonant with awards in similar cases.

Other considerations listed in Johnson have little or

no bearing upon the present case. While lengthy ap-

pellate review may well have precluded other employ-

ment opportunities for plaintiff's counsel, the record

does not so reflect. And while this case, like many other

civil rights cases, might be considered ‘‘undesirable’’

because of potential economic impacts on an attorney's

practice, it is widely acknowledged that ‘‘undesirable”’

cases are the ACLU’s forte. Certainly, there is no

A-12

evidence that counsel’s representation of plaintiff in this

civil rights action had or will have any economic impact

on his practice.

The statutory provision authorizing the award of at-

torneys fees in cases such as this was not enacted for the

benefit of lawyers, but rather to enable litigants to ob-

tain competent counsel worthy of a contest with the

caliber of counsel available to their opposition and to

place the economical burden of civil right litigation fair-

ly. Adequate compensation is necessary, however, to

enable an attorney to serve his client effectively and to

preserve the integrity and independence of the profes-

sion. In this case, the Court is of the opinion that an

award of $8,625.00 will adequately and effectively serve

the purposes for which the statute was

enacted. Therefore it is

ORDERED, ADJUDGED, and DECREED that

plaintiff is awarded attorneys fees in the amount of

$8,625.00 in accordance with the mandate of the Fifth

Circuit Court of Appeals.

DONE this the 11th day of February, 1982, at

Galveston, Texas.

/s/

United States District Judge

A-13

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

JANE DOE, on behalf of §

John Doe, Plaintiff §

§

§ CIVIL ACTION

Vv. § No. G-78-174

§

BAILEY MARSHAL, etc.,§

et al, Defendants §

FINAL JUDGMENT

This case having been remanded from the Fifth Cir-

cuit for an award of attorneys fees and being in all other

respects moot, now be it

ORDERED, ADJUDGED and DECREED that

plaintiff is awarded attorneys fees in the amount of

EIGHT THOUSAND SIX HUNDRED TWENTY-

FIVE DOLLARS ($8,625.00); and further

ORDERED that the case be, and the same hereby is

DISMISSED.

Taxable costs of court, if any, are assessed against the

defendants.

This is a final judgment.

DONE this the 1lth day of February, 1982, at

Galveston, Texas.

/s/

United States District Judge

A-14

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Summary Calendar

D.C. Docket No. CA-G-78-174

JANE DOE, on behalf of John Doe, a minor,

Plaintiff-Appellee,

versus

BAILEY MARSHALL, Director of the University

Interscholastic League, and Member of the

Executive Committee, Individually and in his

Official Capacity, ET AL.,

Defendants-Appellants.

Appeal from the United States District Court for

the Southern District of Texas

Before GEE, RANDALL and TATE, Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal

and was taken under submission by the court upon the

record and briefs on file, pursuant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this court that the judgment of

the said District Court in this cause be, and the same is

herésy, affirmed;

IT IS FURTHER ORDERED that defendants-

appellants pay to plaintiffs-appellees the costs on appeal

to be taxed by the Clerk of this Court.

January 6, 1983

Issued as Mandate: 1-28-83

A-15

JANE DOE, ON BEHALF OF JOHN DOE,

A MINOR,

Plaintiff-Appellee,

¥.

BAILEY MARSHALL, DIRECTOR OF THE

UNIVERSITY INTERSCHOLASTIC LEAGUE,

AND MEMBER OF THE EXECUTIVE

COMMITTEE, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY, ET AL.,

Defendants-Appellants

No. 78-3065.

United States Court of Appeals,

Fifth Circuit.

July 21, 1980.

Action was brought on behalf of emotionally han-

dicapped minor for injunctive relief which would allow

minor to play interscholastic high school football at

school to which he had transferred for medical reasons,

despite interscholastic league’s' transfer

regulations. The United States District Court for the

Southern District of Texas, Finis E. Cowan, District

Judge, granted a temporary injunction allowing minor

to play football, and Defendant appealed. The Court of

Appeals, Godbold, Circuit judge, held that: (1) the case

was rendered moot by graduation of the minor, who had

continued to play football throughout his senior year,

and (2) even though the case was rendered moot, Plain-

tiff was entitled to an award of attorney fees.

Vacated and remanded.

A-16

1. FEDERAL COURTS 757

Action brought on behalf of emotionally handicapped

minor for injunctive relief which would allow minor to

play interscholastic high school football at school to

which he transferred for medical reasons, despite in-

terscholastic league’s transfer regulations, was moot

where minor, who had continued to play football

throughout his senior year in high school during penden-

cy of the appeal, had graduated, and the case was not

salvaged either by fact that Plaintiffs were required to

post a $15 injunction bond or by their request for at-

torneys fees. Rehabilitation Act of 1973, §504, 29

U.S.C.A. §794.

2. CIVIL RIGHTS 13.17

A determination of mootness on appeal neither

precludes nor is precluded by an award of attorney fees;

question of attorney fees turns instead on wholly in-

dependent consideration of whether Plaintiff is a

“prevailing party’’. 42 U.S.C.A. §1988.

3. FEDERAL CIVIL PROCEDURE 2737

Even preliminary relief may serve to make a Plaintiff

a “prevailing party’’ such as would entitle him to award

of attorney fees. 42 U.S.C.A. §1988.

4, FEDERAL CIVIL PROCEDURE 2737.5

Plaintiff, who obtained a temporary injunction allow-

ing her emotionally handicapped minor son to play in-

terscholastic high school football despite interscholastic

league’s transfer regulations was entitled to attorney

fees even though the case was rendered moot during ap-

peal by minor’s graduation.

Appeal from the United States District Court for the

Southern District of Texas.

A-17

Before GODBOLD, TJOFLAT and SAM D.

JOHNSON, Circuit Judges.

GOLDBOLD, Circuit Judge:

Appellee brought this action for injunctive relief on

behalf of her minor son, John Doe, alleging that Ap-

pellants had infringed his rights under §504 of the

Rehabilitation Act of 1973, 23 U.S.C. §794.' The minor,

who had remained anonymous throughout these pro-

ceedings, is an emotionally handicapped individual who

transferred from one school district to another for

medical reasons. Appellant University Interscholastic

League (UIL) interpreted its own transfer regulations to

preclude John from playing football at his new

school. The district court found that all four factors

necessary for preliminary relief were present,’ and

granted a temporary injunction allowing John to play

football. The UIL appeals.

1. Section 504 creates a private right of action in addition to the

administrative remedies it provides. Camenisch v. University of

Texas, 616 F.2d 127 (5th Cir. 1980). We are thus not faced with a

case in which no federal jurisdiction exists because the sole issue

presented is interference with the right to play football. See Mit-

chell v. Louisiana High School Athletic Association, 430 F.2d 1155

(5th Cir. 1970). Instead, the refusal to allow John to play football

infringes on statutorily-created federal right and thus the claim

asserts a federal cause of action. See Walsh v. Louisiana High

School Athletic Association, 616 F.2d 152, 156 (5th Cir. 1980).

2. Those factors are:

1. Irreparable harm to the Plaintiff from failure to issue

the injunction.

2. The relative lack of harm to the Defendant from is-

suance of the injunction.

3. The public interest.

4. Probability that the Plaintiff will ultimately succeed

on the merits. Camenisch v. University of Texas, 615

F.2d 127, 130 (5th Cir. 1980).

A-18

[1] During the pendency of this appeal, John has

graduated from high school, having continued to play

football throughout his senior year. This suit was not

brought as a class action, and appellant sought only in-

junctive relief and not damages. There is, therefore, no

longer a justiciable case or controversy and the case is

moot.

Appellants contend that this case is ‘‘capable of

repetition, yet evading review,’ and thus is within an

established exception to the doctrine of mootness. Roe

v. Wade, 410 U.S. 118, 125, 93 S.Ct. 705, 713, 35

L.Ed.2d 147, 161 (1973); Southern Pacific Terminal Co.

v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed.

310, 316 (1911). This argument must fail in light of

DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40

L.Ed.2d 164 (1974). In this case, as in DeFunis, the stu-

dent has completed his final term in school, and ‘“‘will

never again be required to run the gauntlet’’ of the

UIL’s transfer policies, id. at 319, 94 S.Ct. at 1707, 40

L.Ed.2d at 170. Moreover, as in DeFunis, there is no

reason to suppose that future attacks on the UIL’s rules

will similarly evade review. Jd. Finally, the case meets

neither of the tests set out in Walsh v. Louisiana High

School Athletic Association, 616 F.2d 152, 157 (5th Cir.

1980); the effect of the rule is not too short in duration to

be fully litigated prior to its cessation or expiration, and

there is no reasonable expectation that the Plaintiff will

be subjected to the same difficulties again.

Appellants also contend that the fact that Appellees

were required to post a $15.00 injunction bond keeps the

controversy alive, citing Camenisch v. University of

Texas, 61/35 F.2d 127 (5th Cir. 1980). Camenisch may be

distinguished on two grounds. First, the bond in

Camenisch could not be dissolved without an adjudica-

tion on the merits; the question presented in that case

was which party ought to pay particular costs, and the

bond constituted Plaintiff's guarantee of payment

should the burden ultimately fall on him. In this case,

A-19

Appellants have neither advanced monies nor suffered

financial harm, so there will be no ultimate liability on

the bond. Second, Camenisch involved a $3,000 bond;

the $15.00 bond posted in this case must be considered

de minimus by comparison.

Appellants’ final argument is that appellee’s request,

under 42 U.S.C. §1988, for attorneys’ fees salvages an

otherwise moot case.’ This court has frequently refused

to consider the merits of an otherwise moot case and has

left the question of attorneys’ fees for the district court

on remand. See, e.g., Johnson v. Mississippi, 586 F.2d

387 (5th Cir. 1978); McDonald v. Oliver, 525 F.2d 1217

(5th Cir.), cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50

L.Ed.2d 77 (1976).‘ Moreover, a determination of

mootness does not prevent an award of attorneys’ fees

on remand. Reiser v. Del Monte Properties Co., 605

F.2d 1135, 1140 (9th Cir. 1979); Criterion Club of Albany

v. Board of Commissioners, 594 F.2d 118, 120 (5th Cir.

1979); Ramey v. Cincinnati Enquirer, Inc., 508 F.2d

1188, 1196 (6th Cir. 1974), cert. denied, 422 U.S. 1048, 95

S.Ct. 2666, 45 L.Ed.2d 700 (1975).

3. Appellee also urges this contention, apparently fearful that a

determination of mootness by this court would preclude any award

of attorneys’ fees. Our discussion of attorneys’ fees rejects both

arguments.

4. In Rainey v. Jackson State College, 481 F.2d 347 (5th Cir.

1973), the court proceeded to the merits of a moot case in order to

resolve a claim for attorneys’ fees. Rainey is inapposite. In that

case, the district court reached a final deremination on the merits

after a prelimiry injunction had mooted the case. The case was thus

already moot when it was tried in the district court. The Attorneys’

Fees Act, 42 U.S.C. §1988, had not been enacted when Rainey was

decided and the standard for awarding attorneys’ fees was whether

Defendant had been ‘‘unreasonable and obdurately obstinate’. Jd.

at 350. This standard required examining the merits. As discussed

below, §1988 requires only that Plaintiff be a ‘‘prevailing party”’.

A-20

[2-4] Thus a determination of mootness neither

precludes nor is precluded by an award of attorneys’

fees. The attorneys’ fees question turns instead on a

wholly independent consideration: whether Plaintiff is a

“prevailing party.’’ Johnson v. Mississippi, 606 F.2d

635 (5th Cir. 1979); Iranian Students Association v. Ed-

wards, 604 F.2d 352 (5th Cir. 1979); Morrow v. Dillard,

580 F.2d 1284 (5th Cir. 1978). Even preliminary relief

may serve to make a Plaintiff a “prevailing party”’

under the statute; the lawsuit need not proceed to com-

pletion. Bly v. McLeod, 605 F.2d 134 (4th Cir. 1979);

Iranian Students Association, supra; Criterion Club,

supra; International Society for Krishna Consciousness,

Inc. v. Andersen, 569 F.2d 1027 (8th Cir. 1978); Brown v.

Culpepper, 559 F.2d 274 (5th Cir. 1977). All that is re-

quired is that the Plaintiff obtain the primary relief

sought. Jranian Students Association, supra, 604 F.2d

at 353; Adams v. Reed, 567 F.2d 1283, 1288 (5th Cir.

1978). That requirement has been satisfied in this case.

We therefore vacate the preliminary injunction as

moot, and remand the case to the district court for a

determination of appropriate attorneys’ fees.

VACATED and REMANDED.

A-21

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 19

No. 78-3065

D.C. Docket No. CA-G-78-174

JANE DOE, on behalf of John Doe, a minor,

Plaintiff-Appellee,

versus

BAILEY MARSHALL, Director of the University

Interscholastic League, and Member of the

Executive Committee, Individually and in his

Official Capacity, ET AL.,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Texas

Before GODBOLD, TJOFLAT and SAM D.

JOHNSON, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Southern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this court that the order of the

District Court appealed from, in this cause be, and the

same is hereby, vacated, and that this cause be, and the

same is hereby remanded to the said District Court for a

A-22

determination of appropriate attorneys’ fees in accor-

dance with the opinion of this Court;

It is further ordered that each party pay its own costs

on appeal.

July 21, 1980

Issued as Mandate: 10-8-80

A-33

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

JANE DOE, on behalf of

JOHN DOE, a minor,

Plaintiff

V. CIVIL ACTION NO.

G-78-174

Director of the University

Interscholastic League,

Et Al.,

8

y

§

;

BAILEY MARSHALL, §

§

§

§

Defendants §

Matthew Horowitz, Houston, Texas

For Plaintiff

Robert W. Gauss, Assistant Attorney General,

Austin, Texas

For Defendant UIL

REASONS FOR GRANTING OF

PRELIMINARY INJUNCTION

For the reasons stated herein, the Court has concluded

that the Plaintiff is entitled to a preliminary injunction

restraining the Defendants from barring Plaintiff from

interscholastic competition and restraining the Defen-

dant McKenzie from denying to the Plaintiff the right to

participate in interscholastic athletics, particularly foot-

ball, during the school year 1978-79. The reasons for the

granting of this relief are set forth herein.

ESSENTIAL FACTS

The parties have appeared, introduced evidence, and

on the basis of this evidence the Court finds that the

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facts set forth in the Plaintiff's Original Complaint, a

copy of which is appended hereto as Exhibit A, are

essentially correct, at least for purposes of determining

the Plaintiff's right to a preliminary injunction.

The essential facts are:

1. John Doe is a “handicapped’’ individual

within the meaning of 29 U.S.C. §794.

2. John Doe, because of an unusual set of cir-

cumstances, has a legitimate, compelling

necessity for living with his grandparents

rather than his parents.

3. John Doe, because of his severe psychiatric

difficulties, has a genuine, compelling need to

participate in interscholastic football, and de-

nying him this right, under the circumstances,

would create irreparable harm. Participation in

athletics during his senior year could mean the

difference between John Doe’s growing up as a

normal, productive adult, as distinguished from

the possibility of his being institutionalized for

the rest of his life.

Plaintiff has exhausted her apparent administrative

remedies with the Alvin Independent School District

(hereinafter AISD) and with the University In-

terscholastic League (hereinafter UIL), seeking relief

from AISD, from the UIL, and from the District Ex-

ecutive Committee of the UIL which preliminarily deter-

mines eligibility.

Plaintiff seeks relief under 42 U.S.C. §1983 and 29

U.S.C. §794. 42 U.S.C. §1983 reads:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects or causes to be sub-

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jected, any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws,

shall be liable to the party injured in an action

at law, suit in equity, or other proper pro-

ceeding for redress.

29 U.S.C. §794 reads:

No otherwise qualified handicapped individual

in the United States, as defined in section

706(6) of this title, shall, solely by reason of his

handicap, be excluded from the participation in,

be denied the benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance.

A review of the legislative history and the cases which

illuminate §794 reveal that this congressional enact-

ment, for practical purposes, places upon school

districts and agencies which receive federal funds, such

as the Defendants, the duty of analyzing individually

the needs of each handicapped student and devising a

program which will enable each individual handicapped

student to receive an appropriate, free public

education. The failure to perform this analysis and

structure a program suited to the needs of each han-

dicapped child, constitutes discrimination against that

child and a failure to provide an appropriate, free public

education for the handicapped child. Lau v. Nichols,

414 U.S. 563, 94 S.Ct. 786, 30 L.Ed.2d (1973); Crawford

v. University of North Carolina, 440 F.Supp. 1047 (ND

NC 1977); Hairston v. Drosick, 423 F.Supp. 180 (SC W.

Va. 1976); Camenisch v. University of Texas,

F.Supp. (WD Tx 1978); Fialkowski uv.

Shapp, 405 F.Supp. 946 (ED Pa 1975).

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In this particular case, AISD is willing to perform its

legal duty. AISD has, however, in effect, delegated to

the UIL the right to determine which students will par-

ticipate in interscholastic athletics.

The challenged rule of the UIL would, as construed by

UIL, prohibit John Doe’s playing football for

AISD. There is apparently no structure within the

organizational scherme of the UIL which provides a

mechanism by which special and individual cases, such

as John Doe’s, may be given special and individual

handling.

A review of the facts and the authorities set forth

above has persuaded this Court that there is a

reasonable probability that the Plaintiff will prevail on

the merits.

The Court, in determining whether or not to grant a

preliminary injunction, must also balance the harm

which will be inflicted upon the Plaintiff, if relief is not

granted, against the harm which will be visited upon the

Defendants in the event relief is granted. In this case,

as in the recent case of Kite v. University In-

terscholastic League, F.Supp. (SD Tx 1978),

the balancing task is easy. The harm which would be in-

flicted upon this young man were he denied the oppor-

tunity to play football in his senior year at Alvin may be

enormous. Playing football in his senior year may make

the difference between this young man’s growing up in-

to a productive, happy individual, or, on the contrary,

being institutionalized for the balance of his life. Deny-

ing this young man and his parents the right to the in-

dividualized treatment which 20 U.S.C. §794 mandates,

is a severe deprivation.

No harm is visited on the UIL, in this court’s view, by

the preliminary injunction. The UIL rule in question

was designed to prevent recruiting abuses and to pre-

vent an athlete from irresponsibly ‘“‘shopping around”’

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for a school or a coach. There is no suggestion or hint in

the evidence that either of these evils is in any degree in-

volved here, and the Plaintiff has proved persuasively

that there are compelling medical and psychiatric

reasons why this young man needs to go to school in

Alvin, and needs to play football on the Alvin team.

The Court needs to balance the questions involved

here in the light of the public interest. This Court

believes that 29 U.S.C. §794 is a humane, and reasoned

statute and that the public interest is served by its en-

forcement. In any event, regardless of this Court’s

veiws concerning 29 U.S.C. §794, it is the law as enacted

by the Congress of the United States, and it is this

Court’s duty under 42 U.S.C. §1983 to enforce it.

Defendants contend that 29 U.S.C. §794 does not pro-

vide a private right of action. The law is to the

contrary. See Lau v. Nichols, supra; Cort v. Ash, 442

U.S. 66, 45 L.Ed.2d 26 (1975); Lloyd v. Regional

Transportation, 548 F.2d 1277 (7th Cir. 1977); United

Hanidcapped Federation v. Andre, 558 F.2d 413 (8th

Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2nd

Cir. 1977).

For the reasons set forth above, this Court has deter-

mined to grant a preliminary injunction enjoining the

Defendants from taking any action to prevent John Doe

from playing football for Alvin Independent School

District, during the football season commencing in

August of 1978. This case is not a class action. The

relief granted is granted only to John Doe and his

parents, and is granted only pending the trial of this

case on the merits.

DONE this the 16th day of August, 1978.

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

JANE DOE, on behalf of

JOHN DOE, a minor,

Plaintiff

V. Civil Action

No. G-78-174

4

4

§

8

y

BAILEY MARSHALL, §

Director of the University §

Interscholastic League, §

Et al., §

§

Defendants

INJUNCTION

For the reasons stated in that document of even date

herewith entitled ‘‘Reasons for Granting of Preliminary

Injunction,’’ the court hereby GRANTS a preliminary

injunction, and pending trial of this case on the merits,

enjoins the Defendants from interfering with, or preven-

ting the minor Plaintiff, JOHN DOE, from full par-

ticipation in the football program at Alvin Independent

School District during the school year commencing in

August 1978; and enjoining the Defendants from taking

any action which would prohibit, impede or interfere

with the rights of Alvin Independent School District to

participate fully in the activities of the University In-

terscholastic League because of John Doe’s participa-

tion on the Alvin Independent School District

team. Plaintiff shall post a bond in the amount of Fif-

teen Dollars ($15.00).

The papers in this case which were previously sealed

are now ordered unsealed since this matter has now been

heard fully in open court.

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DONE this the 16th day of August, 1978.

United States District Judge