SHENA MURPHY, Individually and as Next Friend to Terry Carter, a Minor v. FORT WORTH INDEPENDENT SCHOOL DISTRICT; THOMAS TOCCO, Superintendent

United States Court of Appeals
Fifth Circuit
F I L E D
June 17, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10415
SHENA MURPHY, Individually and as Next Friend to Terry Carter, a
Minor
Plaintiff - Appellee
v.
FORT WORTH INDEPENDENT SCHOOL DISTRICT; THOMAS TOCCO,
Superintendent
Defendants - Appellants
--------------------
Appeal from the United States District Court
for the Northern District of Texas
--------------------
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.
PER CURIAM:
During the six-week period between the entry of the district
court’s Memorandum Opinion and Order, Murphy v. Fort Worth
Independent School District, ___ F.Supp.2d ___, 2003 WL 1961327
(N.D. Tex. Apr. 24, 2003), and the submission of this appeal on
an expedited basis to our court, the high school senior, Terry
Carter, who is the subject of this appeal, graduated from high
school. His graduation moots this appeal. If a claim becomes
moot after the entry of a district court’s judgment and prior to
the completion of appellate review, we generally vacate the
judgment and remand for dismissal. United States v. Munsingwear,
Inc., 340 U.S. 36, 39 (1950) (observing that, where a case has

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become moot on appeal, “[t]he established practice . . . is to
reverse or vacate the judgment below and remand with a direction
to dismiss”). Vacatur of the lower court’s judgment is warranted
only where mootness has occurred through happenstance, rather
than through voluntary action of the losing party. See Arizonans
for Official English v. Arizona, 520 U.S. 43, 71 (1997) (“Vacatur
is in order when mootness occurs through happenstance –-
circumstances not attributable to the parties.”). Because the
plaintiff’s claims for declaratory and injunctive relief have
become moot through happenstance, we vacate the district court’s
judgment and injunction.
On a related subject, whether the plaintiff is entitled to
an attorney’s fee for this appeal, we have held repeatedly that
“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.’” Doe v. Marshall, 622 F.2d
118, 120 (5th Cir. 1980). The plaintiff is clearly the
prevailing party and is entitled under 42 U.S.C. § 1988 (2000) to
a reasonable attorney’s fee. If the parties are unable to agree
on the amount of such fee, the plaintiff shall submit an
appropriate affidavit of counsel, the defendant shall have an
opportunity to respond, and the court will determine the amount
payable to counsel for the plaintiff.
The judgment and injunction entered by the district court is
VACATED by reason of mootness. The defendant is ORDERED to pay a
reasonable attorney’s fee for this appeal, the amount to be

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determined by the court if the parties are unable to agree.

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