Johnson v. Florida High School Activities Ass'n

                     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.