United States Court of Appeals,
Eleventh Circuit.
No. 95-3341.
Dennis L. JOHNSON, Plaintiff-Appellee,
v.
FLORIDA HIGH SCHOOL ACTIVITIES ASSOCIATION, INC., a non-profit
Florida corporation, Defendant-Appellant,
Pinellas County School Board, in its official capacity,
Defendant.
Jan. 6, 1997.
Appeal from the United States District Court for the Middle
District of Florida. (No. 95-1407-CIV-T-24B), Susan C. Bucklew,
Judge.
Before HATCHETT, Chief Judge, TJOFLAT, Circuit Judge, and GODBOLD,
Senior Circuit Judge.
PER CURIAM:
Dennis Johnson, a student at Boca Ciega High School in
Pinellas County, Florida became ineligible to participate in
interscholastic football and wrestling because he had attained age
19 by August 31 of the school year. This age limit is in effect in
many jurisdictions and, in Florida, is the subject of a bylaw of
the Florida High School Activities Association, Inc., of which Boca
Ciega High School and most other public and private secondary
schools in Florida are members. Johnson sued FHSAA and the
Pinellas County School Board seeking an injunction against
enforcement of the 19-year rule and forbidding potential penalties
against the school being penalized for allowing him to play.
Johnson's claims were premised upon the Rehabilitation Act, 29
U.S.C. § 794 and the Americans With Disabilities Act, 42 U.S.C. §
12101 et seq. Because of our disposition of the case we do not
need to address whether under 42 U.S.C. § 12132 FHSAA is a "public
entity." The district court granted the relief sought. The
Association has appealed.
It is not disputed that meanwhile the football season and
wrestling season have concluded with Johnson having participated in
football, and he intends no further participation in high school
athletics. We agree with the decision of the Seventh Circuit in
Jordan v. Indiana High School Athletic Ass'n, Inc., 16 F.3d 785
(7th Cir.1994), that in this circumstance no case or controversy
exists between Johnson and FHSAA. Johnson suggests that the case
remains live because of the possibility that penalties might be
enforced against the high school for having permitted Johnson to
play pursuant to the district court's injunction. But the high
school is not a party to this case. It does not appear that any
penalty might be assessed against the Pinellas County School Board
and, in any event, the Board did not join in the appeal to this
court.
The "capable of repetition yet avoiding review" exception to
mootness does not apply because it requires a reasonable
expectation that the same complaining party would be subjected to
the same action again, Murphy v. Hunt, 455 U.S. 478, 102 S.Ct.
1181, 71 L.Ed.2d 353 (1982), and there is no such expectation here.
The judgment of the district court is VACATED and the case is
REMANDED with instructions to dismiss as moot.