Good news for plaintiffs' lawyers who want to make a living

The Court of Appeals holds that a preliminary injunction in a civil rights case entitles the successful attorney to his counsel fees even if the case is mooted out on appeal. This decision distinguishes a recent Supreme Court case that held that a preliminary injunction that dissolves on the merits down the road leaves the attorney empty-handed.

The case is Kirk v. New York State Department of Education, decided on July 6. Kirk is a veterinarian who wanted to practice his trade in the United States. He could not do so because he was here on a visa and was not a citizen or lawful permanent resident. The district court struck down as unconstitutional the offending provision of the Education Law on Kirk's preliminary injunction application. Kirk thus gets a permanent license. The kicker here is that Kirk eventually got permanent resident status a few months after the preliminary injunction. The case was therefore mooted and the judgment was vacated.

Under older Second Circuit precedent, this successful maneuver entitled Kirk's lawyer to attorneys' fees. But in 2007, the Supreme Court held in Sole v. Wyner, 551 U.S. 74 (2007), that a preliminary injunction that dissolves at the end of the case on the merits does not entitle the lawyer to any attorneys' fees. Sole was the rare case where the district court granted preliminary relief because the plaintiff's case had a likelihood of success on the merits, but on further review, that same court rejected the case en toto.

Kirk's case is distinguished from Sole because, while Kirk's injunction was later vacated, that only happened because it was mooted once he got permanent resident status. Unlike the plaintiff in Sole, Kirk got the injunction on a fully-developed record, not in haste. Also, Kirk's injunction was vacated out of mootness, not on the merits. And, unlike Sole, Kirk got his permanent license, which is the reason he brought the lawsuit in the lawsuit in the first place. As the Court of Appeals (Parker, Feinberg and Wesley) notes, Kirk did not leave court "empty-handed." And, thanks to this decision, neither does his attorney.