No attorneys' fees despite winning preliminary injunction

This is an interesting attorneys' fees decision that says that New Yorkers who were able to force the state to allow them have a wedding ceremony at the height of the COVID-19 crisis cannot recover attorneys' fees because they technically were not prevailing parties -- even though the Northern District of New York granted them an injunction so they could proceed with the wedding.

The case DiMartile v. Hochul, issued on September 15. After the pandemic came about in spring 2020, New York restricted in-person events to 50 people for non-essential gatherings, including weddings. But other venues, including restaurants, could have more people under the state's regulations. This meant fewer people could attend the weddings. An equal protection lawsuit followed, and the NDNY issued a preliminary injunction, determining that plaintiffs had a likelihood of success on the merits and plaintiffs would suffer irreparable harm without the injunction. Thanks to the district court ruling, one of the plaintiff couples had the wedding as they had planned. The preliminary injunction process was expedited, however, and the Court of Appeals vacated the injunction on the state's emergency appeal. The appeal ultimately was dismissed as moot, as one couple had already had their wedding, and another couple decided against proceeding with the wedding while the restraints remained in place "regardless of the outcome of the appeal."

The Second Circuit held years ago (Haley v. Pataki, 106 F.3d 478 (1997)) that certain preliminary injunction rulings on the merits entitle the plaintiff to attorneys' fees, as the merits-based rulings make them a prevailing party. That is why plaintiffs in this case moved for attorneys' fees. But the district court held, and the Second Circuit agrees, that the plaintiffs are not prevailing parties based on a Supreme Court ruling, Sole v. Wyner, 551 U.S. 74 (2007), which holds that "transient" preliminary injunction rulings reached after an expedited process does not permit an award of attorneys' fees. 

What hurts the plaintiffs in this case is that the preliminary injunction process was expedited, and the Court of Appeals stayed the district court's preliminary injunction. While two of the plaintiffs actually got married in the presence of more than 50 people thanks to the preliminary injunction, they still cannot get around the fact that the Court of Appeals stay undid the injunction. The prevailing party analysis in this case, thanks to the Sole ruling from the Supreme Court, is loaded with nooks and crannies, like an English muffin. As the Court of Appeals (Livingston, Carney and Bianco) mentions in this ruling, plaintiffs' counsel actually researched this very issue while the proceedings were ongoing, perhaps unsure if they were going to recover any fees for all their work, which did after all, result in a useful victory for their clients.