Opinion
No. 95-1079
Argued and Submitted October 13, 1996.
Decided and Filed March 4, 1996 Pursuant to Sixth Circuit Rule 24
Lore A. Rogers (briefed), John W. Friedl (briefed), Ann Arbor, MI, for Plaintiff-Appellee.
Edmund J. Sikorski, Jr. (argued and briefed), Ann Arbor, MI, for Defendant-Appellant.
J. Kingsley Cotton, III (briefed), Drolet, Freeman,, Preston Cotton, Bloomfield Hills, MI, for Basketball Coaches Ass'n of Michigan, Amicus Curiae.
Stewart R. Hakola (briefed), Michigan Protection Advocacy Service, Marquette, MI, for Michigan Protection and Advocacy Service, Inc., Amicus Curiae.
On Appeal from the United States District Court for the Eastern District of Michigan.
Before: MERRITT, Chief Judge; DAUGHTREY and OAKES, Circuit Judges.
The Honorable James L. Oakes, Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation.
OAKES, J., delivered the opinion of the court, in which MERRITT, C. J., joined. DAUGHTREY, J., delivered a separate opinion concurring in part and dissenting in part.
AMENDED OPINION
Upon consideration of the Michigan High School Athletic Association's ("MHSAA") petition for rehearing, we strike the original opinion in its entirety, 77 F.3d 883 (6th Cir. 1996), and issue the following opinion.
The Michigan High School Athletic Association ("MHSAA") appeals the entry of a preliminary injunction by the Honorable Denise Page Hood of the Eastern District of Michigan which forbids it from enforcing its eight semester eligibility rule against Dion R. McPherson. McPherson challenged the MHSAA rule as violating Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §(s) 12131 et seq. (1988), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §(s) 794 (1994), the Michigan Handicappers' Civil Rights Act, MCLA 37.1101 et seq. (West 1995), and 42 U.S.C. §(s) 1983 (1994). The district court found for McPherson on the basis of the ADA and the Rehabilitation Act. We vacate the preliminary injunction because the case is now moot.
BACKGROUND
McPherson's high school, Ann Arbor Huron High School, like most public and private high schools in Michigan, is a member of the MHSAA. The MHSAA sponsors interscholastic athletic competitions and promulgates rules governing interscholastic competition that its member schools must adopt and enforce. In order to participate in MHSAA-sponsored events, a member school must ensure that it meets the MHSAA's eligibility requirements.
Regulation I, Section 4 of the Rules of Eligibility for Senior High School Students states that "[a] student shall not compete in any branch of athletics who has been enrolled in grades nine to twelve, inclusive, for more than eight semesters." The MHSAA constitution, adopted by a vote of member schools, permits waiver of this rule if the MHSAA Executive Committee finds that the rule fails to serve its purpose or works an undue hardship when applied to a particular student.
McPherson's academic performance in high school suffered due to an undiagnosed Attention Deficit Hyperactivity Disorder ("ADHD") and a seizure disorder. His grades improved when he repeated the eleventh grade (his fourth year of high school) and enrolled in a special academic program. The ADHD and seizure disorders were diagnosed prior to the beginning of his senior year. During his senior year, McPherson followed an Individualized Education Program designed to accommodate his disabilities and his grades improved further.
McPherson wanted to compete on Huron High School's basketball team during his senior year. Because he had already attended eight semesters of high school, however, the MHSAA refused to let him participate on the team. McPherson, with the support of the school, sought to have the semester rule waived but the Executive Committee of the MHSAA ruled against his request.
For the first three years of high school, McPherson did not meet the academic standards necessary for him to play basketball. During his repeated 11th grade year, and again in his 12th grade year, he attained grades high enough to allow him to compete.
McPherson then brought a lawsuit against the MHSAA and the school district challenging the eight-semester rule. After a hearing, the district court entered a preliminary injunction in favor of McPherson, finding that he was likely to succeed on the merits of both the ADA and the Rehabilitation Act claims. The district court granted a preliminary injunction restraining the MHSAA and the school district "from taking any action to prevent Plaintiff from participating in interscholastic athletic competition for the Plaintiff's remaining senior year in high school during the pendency of this suit" and preventing the MHSAA from penalizing the school district for McPherson's participation in such competition. This court then refused to grant the MHSAA's request for a stay pending appeal. McPherson competed on the basketball team, which completed the season with a 3-18 record, 0-6 in its league.
DISCUSSION
Before reaching the merits of any appeal, we first must ask whether the appeal satisfies the mandate of Article III that limits our jurisdiction to those appeals involving a case or controversy. U.S. Const. art. III, Section(s) 2. We may review only those appeals where a live and palpable dispute exists between the parties that can be remedied by exercise of our jurisdiction. Brock v. International Union, UAW, 889 F.2d 685, 689-90 (6th Cir. 1989). If no present controversy exists, the case is rendered moot unless a party can show that he or she is likely to be involved in the same controversy at a later date if we refuse to resolve the matter now — the "capable of repetition, yet evading review" exception to the mootness doctrine. Roe v. Wade, 410 U.S. 113, 125 (1973); Thomas Sysco Food Services v. Martin, 983 F.2d 60, 62 (6th Cir. 1993); Brock, 889 F.2d at 691-92.
Here, McPherson has graduated from high school and will play no more high school basketball games. As a result, he no longer has an interest in the challenged eight-semester rule. See Washegesic v. Bloomingdale Public Schools, 33 F.3d 679, 681-83 (6th Cir. 1994) (Merritt, C.J.) (noting that a plaintiff's interest in a law suit ceases when the challenged rule can no longer harm the plaintiff), cert. denied, ___ U.S. ___, 115 S.Ct. 1822 (1995). Therefore, there is no present controversy regarding the portion of the preliminary injunction restraining the MHSAA from preventing McPherson from participating in athletic competitions. Moreover, McPherson's action is not "capable of repetition, yet evading review" because this exception to the mootness doctrine requires that the same party be subject to the same litigation in the future.
The second part of the district court's injunction, however, requires a closer look. The district court ordered that "Defendant MHSAA not take any action which would cause the school district to be penalized for Plaintiff's participation in interscholastic athletic competition during the pendency of this matter." The MHSAA asserts that this portion of the injunction still presents a live controversy because the MHSAA may retroactively sanction the school for allowing an ineligible player to compete.
In support, the MHSAA cites Sandison v. Michigan High School Athletic Ass'n, Inc., 64 F.3d 1026 (6th Cir. 1995). Sandison involved a challenge to the MHSAA's non-waivable age eligibility requirement. In holding that the MHSAA's age eligibility requirement as applied to the student there did not violate the ADA or the Rehabilitation Act, the court found that the student's graduation did not render the case moot. The court stated, "[w]hen an age-ineligible player competes on a high school team, MHSAA Regulation 5 Section(s) 4(B),(D) provide for penalties such as forfeiture of team victories and erasure of individual performances . . . . Accordingly, this controversy remains live." Sandison, 64 F.3d at 1030. See also Wiley v. National Collegiate Athletic Ass'n, 612 F.2d 473, 476 (10th Cir. 1979) (finding, in an Equal Protection Clause and Supremacy Clause challenge to a N.C.A.A. regulation regarding the amount of financial assistance allowed to a student athlete, that "[a]s long as [the plaintiff]'s records and awards are at stake, this court can render a decision that will affect the rights of the litigants"), cert. denied, 446 U.S. 943 (1980).
Contrary to the MHSAA's contention, however, Sandison does not control our decision regarding mootness in this case. The penalty provision at issue in McPherson's case is the MHSAA's Senior High School Rules Regulation V, Section 4(C), not Sections 4(B) or (D) mentioned in Sandison.
Regulation V, Section 4(C) states:
If a student is ineligible according to MHSAA rules but is permitted to participate in interscholastic competition contrary to such MHSAA rules but in accordance with the terms of a court restraining order or injunction against his/her school and/or the MHSAA, and that injunction is subsequently voluntarily vacated, stayed, reversed or finally determined by the courts that injunctive relief is not or was not justified or expires without further judicial determination, those actions stipulated in SECTION 4(B) shall be taken.
(emphasis added). The plain language of Regulation V, Section 4(C) does not cover the question of the authority of the MHSAA to penalize McPherson for McPherson's participation pursuant to the preliminary injunction upon our finding this action moot. This case has not been "voluntarily vacated" as McPherson, despite graduating, is still attempting to pursue his case. See Cardinal Mooney High School v. Michigan High School Athletic Ass'n, Inc., 467 N.W.2d 21, 24 n. 4 (Mich. 1991) (recognizing that parties challenging the MHSAA abandon their suits upon graduation in some cases). This case will neither be stayed nor reversed by our finding of mootness. Finding the case moot also will not result in a final determination that "injunctive relief is not or was not justified" at the time it was granted — we will simply be precluded by Article III from making any determination at all.
The penalty provisions discussed in Sandison also do not authorize the MHSAA to penalize McPherson for obeying the court order in this case. As noted above, the first of the provisions discussed in Sandison, Regulation V, Section 4(B), applies to a case such as McPherson's only when it has been determined that the Section 4(C) criteria have been met. Since this is not the case, Section 4(B) cannot be applied to McPherson.
Regulation V, Section 4(B) states:
Accidental, intentional or other use of ineligible players by a junior high/middle school or senior high school shall require that team victories are forfeited to opponents; and any one or more of these additional actions may be taken: (1) that individual or team records and performances achieved during participation by such ineligibles be vacated or stricken; and (2) that team or individual awards earned by such ineligibles be returned to the MHSAA.
The other provision discussed in Sandison, Regulation V, Section 4(D), also does not apply to McPherson's case because that provision punishes violations of Regulation II or IV, and the violation at issue here is of Regulation I, Section 4. The only possible violation of Regulations II or IV in McPherson's case might be of Regulation II, Section 1, which states that a high school may not allow a student to compete who is ineligible under the various provisions of Regulation I, including the eight-semester rule. However, Regulation II applies to schools, not to players. McPherson's school district has not appealed the district court's injunction and thus, even if the section were otherwise to apply, no live controversy exists between the parties before us. As the Wiley court noted, sanctions impacting the institution are not at issue in a case such as this. See Wiley, 612 F.2d at 426 n. 4. Therefore, because the MHSAA cannot apply Regulation V, Section 4(C) or any other penalty provision against McPherson, no live controversy exists regarding the second part of the preliminary injunction and this case is moot.
Regulation V, Section 4(D) states:
If a contestant competes in a meet, match, or tournament in violation of any of the limitations of competition of Regulations II and IV, all points earned by that student, or by a relay team of which he or she may have been a member, in that meet or tournament are to be declared forfeited; and in team sports (baseball, basketball, football, ice hockey, soccer, girls softball, girls volleyball and team wrestling), the entire contest is forfeited.
By our holding, we do not intend to comment on the general validity of the MHSAA's restitution rules. We make no comment on the authority of the MHSAA to sanction McPherson's high school or to forfeit games in which McPherson played. No such issue is before us. Only McPherson (not the school) sought an injunction. McPherson's case is moot, and he therefore lacks standing to continue the injunction based on a present cognizable injury. Since no other party presently seeks or has standing to obtain injunctive relief in this case, the injunction must be vacated. We simply find that because the plain language of Regulation V, Section 4(C) indicates that it cannot be applied against McPherson, no controversy exists between the parties before us.
CONCLUSION
For the foregoing reasons, we find that this case is moot and order the preliminary injunction vacated.
The majority holds that Dion McPherson's graduation from high school moots the attempt by the Michigan High School Athletic Association to sanction McPherson for improper participation in interscholastic athletic competitions. With this conclusion, I fully concur. The majority also insists, however, that the MHSAA's further attempt to impose sanctions on the Board of Education of the Public Schools of the City of Ann Arbor for McPherson's participation likewise presents no live controversy. I believe adherence to such a position in this case does violence not only to our "law of the circuit" doctrine, but also to a litigant's freedom to perfect a good faith appeal of an adverse decision of the federal district courts. I therefore respectfully dissent from that portion of the majority's holding.
I.
Like every other circuit court of the federal system, we have, in the interests of uniformity and stability, determined that one panel of the court may not overrule a prior decision of another panel of our court absent an intervening, contrary Supreme Court ruling, an en banc reversal of the earlier decision, or a relevant legislative amendment to the applicable law. United States v. Seltzer, 794 F.2d 1114, 1123 (6th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). See also, e.g., Bakery Centre Assocs. v. Orientation Gallery, Inc., 54 F.3d 688, 690 (11th Cir. 1995); Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995); Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477, 482 (9th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995); United States v. Olness, 9 F.3d 716, 717 (8th Cir. 1993), cert. denied, 114 S.Ct. 1326 (1994); United States v. Killion, 7 F.3d 927, 930 (10th Cir. 1993), cert. denied, 114 S.Ct. 1106 (1994); Norfolk Western Ry. Co. v. Director, OWCP, 5 F.3d 777, 779 (4th Cir. 1993); Horwitz v. Alloy Automotive Co., 992 F.2d 100, 103 (7th Cir. 1993); Cannon v. United States Dep't of Justice, United States Parole Comm'n, 973 F.2d 1190, 1196 (5th Cir. 1992), cert. denied, 113 S.Ct. 2354 (1993); United States v. Kikumura, 947 F.2d 72, 77 (3d Cir. 1991); Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991); Lacy v. Gardino, 791 F.2d 980, 985 (1st Cir.), cert. denied, 479 U.S. 888 (1986); Humane Soc'y of United States v. E.P.A., 790 F.2d 106, 110-11 (D.C. Cir. 1986). By its ruling in this matter, however, the majority has effectively overturned our previous opinion in Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026 (6th Cir. 1995), without requiring demonstration of the existence of one of the acceptable precursors of change.
In Sandison, when presented with a situation remarkably analogous to the one now before us, we held that an injunction aimed at prevention of sanctions against a student who had already graduated from high school was moot because the controversy over that individual's eligibility could not be repeated. Id. at 1030. Nevertheless, we also concluded that "the second part of the preliminary injunction — ordering the MHSAA to refrain from penalizing the high schools for permitting the plaintiffs to compete — is not moot." Id. I see no reason why adherence to the "law of the circuit" doctrine would not compel an identical decision in this case.
The majority insists that Sandison is distinguishable because that opinion discussed imposition of penalties pursuant to MHSAA Regulation V, Section(s) 4(B) and (D), while the appropriate penalty provision to be applied in this matter is MHSAA Regulation V, Section(s) 4(C). Any such distinction, however, reflects more an understandable uneasiness with the dual nature of the injunctions and the appeals both in Sandison and in this case than any substantive difference in the two situations. In Sandison, as here, the attempt by the MHSAA to overturn the injunction protecting the student from retroactive sanctions was rendered moot. Thus, no jurisdictional basis was available to impose sanctions upon that party. We also implicitly determined in Sandison, however, that an Article III controversy did remain between the association and the school district, that the district court injunction, in the words of MHSAA Regulation V, Section(s) 4(C), "was not justified," and that, therefore, the "actions stipulated in SECTION 4(B) shall be taken." Sandison thus also relied upon the predicate of Section(s) 4(C) to justify imposition of Section(s) 4(B) sanctions.
Consequently, I believe that the majority has failed to distinguish Sandison adequately from this case and that we are thus bound here by the analysis of that earlier decision. I would conclude, therefore, that the graduation of a high school athlete does not necessarily moot parallel attempts to enforce sanctions against the student's school district for improperly allowing that individual to participate in interscholastic athletics.
II.
Even if we were not bound by prior circuit precedent, however, I would be hesitant to subscribe unreservedly to the majority's mootness analysis because it allows the district court's injunction to remain wholly insulated from review by this court. Despite the language in the majority opinion expressing no comment "on the authority of the MHSAA to sanction McPherson's high school or to forfeit games in which McPherson played," today's decision makes it far from clear that the association could legitimately institute later disciplinary proceedings against Huron High School regarding this matter. As noted by the majority itself, the MHSAA regulations allow a person or institution previously protected from sanctions by a court injunction to be punished under 4(B) for ineligible participation only after that injunction is "voluntarily vacated, stayed, reversed or finally determined by the courts that injunctive relief is not or was not justified or expires without further judicial determination." MHSAA Regulation V, Section(s) 4(C). By holding the association's appeal moot and refusing to address its merits, the majority has ensured that none of those conditions precedent can be satisfied.
The majority also explicitly disapproves of judicial review of the order of injunction against the school district under the penalty provisions of MHSAA Regulation V, Section(s) 4(D) because that section sanctions only violations of Regulations II or IV and McPherson was charged with contravening Regulation I, Section(s) 4. It is, however, violations by the school district, not by McPherson, that are still of interest in this litigation. Regulation II, Section(s) 1 clearly forbids a school from allowing students ineligible under the challenged eight-semester rule to compete in interscholastic competitions. A school district, therefore, that violates the dictates of Regulation II, Section(s) 1 may still be subjected to penalties pursuant to Regulation V, Section(s) 4(D) of the MHSAA regulations.
Finally, the majority attempts to dismiss as moot the association's appeal of the injunction forbidding sanctioning of the school district simply because "McPherson's school district has not appealed the district court's injunction and thus . . . no live controversy exists between the parties before us." It was, however, the MHSAA that was adversely affected by the issuance of the injunction, and it is the same MHSAA that now seeks an appeal from that district court ruling. Whether the board of education also decides that it does or does not want itself to be sanctioned should be irrelevant.
Although the school board and the association were each named as defendants in this lawsuit, a dispute as real as the former dispute between the MHSAA and McPherson exists between those two entities. To deny the existence of that adversarial relationship when the parties' interests are so diametrically opposed is, moreover, tantamount to ignoring the rationale underpinning Article III's case or controversy requirement.
By precluding the MHSAA from appealing the issuance of the injunctions in this case, the majority has created an anomalous situation in which a board of education subject to regulation may avoid altogether sanctions that could be imposed upon it merely by not appealing a district court ruling, even though the aggrieved regulator has chosen to appeal. I believe we should not condone such manipulation of the judicial system. I therefore dissent from the panel's holding that prevents the MHSAA from appealing that portion of the district court decision rendered against it that involves an ongoing dispute with a school district over use of an allegedly ineligible player.