21-2988 DiMartile v. Hochul

In the United States Court of Appeals For the Second Circuit ______________

August Term, 2022

(Argued: February 16, 2023 Decided: September 15, 2023)

Docket No. 21-2988-cv ______________

JENNA M. DIMARTILE, JUSTIN G. CRAWFORD, PAMELLA GIGLIA, JOE DUROLEK, DAVID SHAMENDA,

Plaintiffs-Appellants,

–v.–

KATHLEEN HOCHUL, LETITIA JAMES, MARK C. POLONCARZ, EMPIRE STATE DEVELOPMENT CORPORATION, ERIE COUNTY DEPARTMENT OF HEALTH,

Defendants-Appellees. * ______________

B e f o r e:

LIVINGSTON, Chief Judge, CARNEY and BIANCO, Circuit Judges. ______________

Plaintiffs-Appellants appeal from an order of the United States District Court for the Northern District of New York denying their motion for attorney’s fees under 42

*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Governor Kathleen Hochul has been automatically substituted as Appellee in place of Andrew M. Cuomo, the former Governor of the State of New York. U.S.C. § 1988. Plaintiffs are two couples, both engaged to be married when they filed suit, and a New York-based minister. Together, the five individuals brought a constitutional challenge to state COVID-19 regulations that, early in the pandemic, limited to fifty the number of attendees at social gatherings, including weddings. After expedited briefing and a hurriedly conducted oral argument, the district court granted Plaintiffs’ motion for a preliminary injunction just forty-five minutes before the start time of the first of the two scheduled weddings. The first of the couples married in their planned ceremony and held their wedding celebration involving over 100 guests. Within two weeks of that event, a single judge of this Court issued a temporary administrative stay of the district court’s order. Several weeks later, a motions panel of this Court stayed the order pending appeal. A separate panel later dismissed the appeal as moot and vacated the district court’s order after the second couple announced that, regardless of the outcome of the appeal, they no longer planned to hold a wedding. All five Plaintiffs then sought an award of attorney’s fees in the district court. The district court denied their motion, concluding that they were not prevailing parties under § 1988 and therefore were not eligible for fees. On review, we AFFIRM the district court’s order.

AFFIRMED. ______________

R. ANTHONY RUPP III (Phillip A. Oswald, on the brief), Rupp Baase Pfalzgraf Cunningham LLC, Buffalo, N.Y., for Plaintiffs-Appellants.

FREDERICK A. BRODIE (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Letitia James, Attorney General for the State of New York, Albany, N.Y., for Defendants-Appellees Kathleen Hochul, Letitia James, and Empire State Development Corporation.

Erin Molisani, Erie County Department of Law, Buffalo, N.Y., for Defendants-Appellees Mark C. Poloncarz and Erie County Department of Health. ______________

2 CARNEY, Circuit Judge:

Plaintiffs are five individuals—two couples, each engaged to be married when

they filed suit, and a New York-based minister. During the summer of 2020, the five

brought a constitutional challenge to New York regulations issued earlier that year in

response to the COVID-19 pandemic, limiting to fifty the number of attendees

permitted at non-essential gatherings, including weddings. Eight days before the first of

the scheduled weddings, the five sought a preliminary injunction in the United States

District Court for the Northern District of New York barring enforcement of the

limitation as to their planned gatherings. After expedited briefing and a hurriedly

conducted oral argument, the district court granted their motion and preliminarily

enjoined the State from enforcing its gathering limit against Plaintiffs just forty-five

minutes before the wedding ceremony was to begin. See DiMartile v. Cuomo,

, 389 (N.D.N.Y. 2020) (Suddaby, J.) (“PI Order”). The first couple held their

wedding that afternoon. Within a few days, Defendants appealed, and not long after,

we granted their request for a stay pending appeal.

After the second couple announced that—regardless of the outcome of the

appeal—they no longer planned to hold a wedding, we dismissed the appeal as moot

and remanded with instructions to the district court to vacate the preliminary

injunction. On remand, all five Plaintiffs moved for attorney’s fees. The district court

denied their motion, deciding that, under

, none were prevailing

parties. All five then timely appealed.

On de novo review, we AFFIRM the district court’s order. Its grant of a

preliminary injunction in this case was insufficient to confer prevailing party status on

any of the five Plaintiffs, including the couple that married during the brief period in

which the preliminary injunction was in effect. Our Court’s grant of a stay to

Defendants just two weeks after the hurried proceedings in the district court, followed

3 by Plaintiffs’ mooting of the appeal, made their victory too fleeting to make them

eligible for a fee award under Section 1988.

BACKGROUND

Plaintiffs Jenna DiMartile and Justin Crawford (“DiMartile and Crawford”) and

Plaintiffs Pamella Giglia and Joe Durolek (“Giglia and Durolek”) are two couples who,

during the summer of 2020, were engaged to be married. Plaintiff David Shamenda is a

New York-based minister. On July 31, 2020, the five brought suit under

in the United States District Court for the Northern District of New York against then-

Governor Andrew M. Cuomo, Attorney General Letitia James, and Empire State

Development Corporation (together, the “State Defendants”), and Mark Poloncarz and

Erie County Department of Health (together, the “County Defendants”). They

challenged the constitutionality of New York’s 50-person gathering limit, which then-

Governor Cuomo had temporarily imposed on non-essential gatherings, including

weddings, in response to the March 2020 outbreak of the COVID-19 pandemic.

In their suit, they contended that New York’s 50-person gathering limit violated

their free exercise and free speech rights under the First and Fourteenth Amendments

by forbidding them to gather with guests for a religious purpose: their weddings (and,

for Minister Shamenda, preventing him from conducting such ceremonies generally).

They also advanced the view that the State violated their Fourteenth Amendment rights

to equal protection and substantive due process by treating religious conduct (i.e.,

gathering to witness and celebrate weddings) differently than non-religious conduct

(i.e., gathering for restaurant dining, mass demonstrations, and graduations). Plaintiffs

also alleged that New York’s gathering limit constituted unlawful ultra vires state

action and that the actions of Defendants (both State and County) were arbitrary,

capricious, an abuse of discretion, and a violation of lawful procedure that entitled

4 Plaintiffs to relief under N.Y. CPLR Article 78. 1 They sought declaratory relief, a

permanent injunction barring Defendants from enforcing any attendance number limits

on Plaintiffs’ own weddings, and a judgment annulling the Governor’s 50-person

gathering limit and barring Defendants from enforcing the gathering limit altogether.

I. The Planned Weddings 2

The two couples planned their weddings to take place in August 2020 in event

spaces at the Arrowhead Golf Club (“Arrowhead”) in Akron, New York, not far from

Buffalo. DiMartile and Crawford scheduled their 120-guest wedding for August 7 at

Arrowhead’s Timberlodge venue, and Giglia and Durolek scheduled their 175-guest

wedding for August 22 at Arrowhead’s Sterling venue. Their wedding plans were

thrown into doubt, however, after COVID-19 ignited a global pandemic and when, in

an effort to stem the pandemic’s spread, then-Governor Cuomo issued a series of

executive orders limiting the number of people who were permitted to gather for “non-

essential” purposes. These non-essential purposes included wedding celebrations.

The most severe of the statewide restrictions on in-person gatherings applied

between March 23 and May 21, 2020, when New York prohibited all non-essential

gatherings “of any size for any reason.” N.Y. Exec. Order 202.10 (Mar. 23, 2020). In this

roughly two-month period, the State completely suspended in-person dining at

restaurants and bars. See N.Y. Exec. Order 202.3 (Mar. 16, 2020). In late May, the State

1Article 78 is a “special proceeding” under the New York CPLR that is intended to provide “a speedy correction” of improper state administrative action. Davidson v. Capuano,

(2d Cir. 1986). See generally N.Y. CPLR 7801 et seq. Whether federal courts may properly exercise supplemental jurisdiction over claims seeking relief under Article 78 is an unsettled question that we need not answer here. See Doe v. New York Univ.,

, 491 (S.D.N.Y. 2021).

2Unless otherwise noted, we draw the factual statement in this section from Plaintiffs’ July 31, 2020 complaint and attached exhibits. The facts are largely uncontested.

5 allowed groups of ten or fewer individuals to gather for “any lawful purpose or reason”

(provided that participants adhered to social distancing and other health protocols), but

it retained the complete ban on indoor dining. N.Y. Exec. Order 202.33 (May 22, 2020).

Just before the start of summer 2020, the State implemented a phased reopening

plan, beginning to ease restrictions significantly in most regions within its borders. As

of June 16, groups of twenty-five or fewer people were permitted to gather for non-

essential purposes, and restaurants in the Western New York region (where Arrowhead

is located) were allowed to resume indoor dining at 50% of capacity.

By June 30, Western New York had entered “Phase 4” of the State’s reopening

plan, and the applicable gathering size limit had increased to 50 people. The State’s

50%-of-capacity restriction on restaurant dining, however, remained in place. Under

Phase 4 restrictions, Plaintiffs’ wedding venues at Arrowhead—the Timberlodge and

the Sterling—were authorized to accommodate up to 177 and 219 people, respectively,

for food service when operating as restaurants. If the 50%-of-capacity limit on

“restaurant dining” applied to the couples’ weddings, then, the venues would have

been permitted to host both wedding events with the full number of invited guests. 3

Because the 50-person limit applied to weddings, however, the orders required the

couples either to reduce the number of invited guests or to postpone their weddings

3Plaintiffs suggest that, in early July, Arrowhead’s co-owner, Lucas James, received mixed signals from the Erie County Department of Health regarding which regulations—the 50%-of- capacity limit on restaurant dining or the 50-person limit on non-essential gatherings—applied to weddings to be hosted at Arrowhead’s venues. Appellants’ Br. 6–7. Plaintiffs allege that by July 10, 2020, however, James understood that the County would limit weddings to be conducted there to a maximum of 50 individuals. The County does not appear to dispute that this was the position that it adopted in that time frame. The State argues that a local government is not empowered to create exceptions or limit the effects of the governor’s COVID- related executive orders and that a single Erie County official’s “erroneous” oral statement is “not attributable” to it. State Defendants’ Br. 38.

6 until a time when the orders no longer applied. Happy with neither option, they

brought a legal challenge to the 50-person limit seeking immediate relief. 4

II. The Preliminary Injunction Proceedings

Thus, on July 31, just eight days before the scheduled date of the DiMartile-

Crawford wedding, Plaintiffs filed their complaint and moved for a temporary

restraining order (“TRO”) and a preliminary injunction. 5 On August 1, the district court

denied the TRO request and directed Plaintiffs to serve their complaint and motion

papers on Defendants by 12:00 p.m. on August 3; it also ordered expedited briefing on

the preliminary injunction motion. 6 It set 5:00 p.m. on August 5 as the deadline for

4 Plaintiffs do not explain David Shamenda’s involvement, if any, in either of the planned weddings. See J. App’x at 32 (alleging, generally, that Shamenda “administers the holy rite of marriage and presides over weddings” and that New York’s gathering restrictions “impose extreme and insurmountable burdens on [his] free exercise of religion in ministering to his flock”). See also DiMartile v. Cuomo,

, 678 n.1 (2d Cir. 2021) (remarking that “it is unclear from the complaint whether [Shamenda] was expected to have any involvement in the planned weddings of the two plaintiff couples”).

5 Six days earlier, DiMartile and Crawford (along with a minister named Bradley Markowski, who is not a party in this litigation) sought to piggyback on an existing case, Soos v. Cuomo, which involved a challenge to New York’s 25%-of-capacity limit on houses of worship. See Motion, Soos v. Cuomo, Dkt. 44, 20-cv-00651 (N.D.N.Y. July 24, 2020). DiMartile and Crawford moved to intervene after the Soos court granted a preliminary injunction prohibiting New York from enforcing stricter capacity limits against houses of worship than against secular facilities, like offices, retail stores, and salons. See Soos v. Cuomo,

(N.D.N.Y. 2020). On July 28, the district court (Sharpe, J.) denied the motion to intervene in Soos, citing “the delay and prejudice to the parties” that would otherwise result. Text Order, Dkt. 50, Soos v. Cuomo, 20- cv-00651 (N.D.N.Y. July 28, 2020).

6In denying the requested TRO, the district court stated that “Plaintiffs fail[ed] to explain why they waited until eight days before the first scheduled wedding ceremony to file their motion,” and concluded that the motion was “unsupported” by a showing of irreparable harm or of a “likelihood of success on the merits” that would necessitate a ruling on a TRO before a ruling on the preliminary injunction motion. See Text Order, Dkt. 5, DiMartile v. Cuomo, 21-cv-2988 (N.D.N.Y. Aug. 1, 2020).

7 Defendants’ response papers, and 11:00 a.m. on Thursday, August 6, as the deadline for

Plaintiffs’ reply papers. See Text Order, Dkt. 5, DiMartile v. Cuomo, 21-cv-2988 (N.D.N.Y.

Aug. 1, 2020). After Defendants timely appeared and filed their opposition papers, the

court ordered the parties to appear via Skype for a hearing on the preliminary

injunction motion at 10:45 a.m. on Friday, August 7, the morning of the planned

DiMartile-Crawford wedding.

The August 7 hearing concluded at 12:34 p.m. and the court issued its written

decision at 4:18 p.m., twelve minutes before DiMartile and Crawford’s guests were

scheduled to arrive at the venue, and forty-two minutes before the wedding ceremony

was to begin. The court enjoined Defendants from enforcing the 50-person limit against

Plaintiffs in the conduct of their weddings at Arrowhead. See PI Order, 478 F. Supp. 3d

at 389. It determined that the couples had shown a likelihood of success on one of their

claims: that the 50-person limit violated their equal protection rights by treating the two

planned weddings differently than restaurant service at the same facility. Id. at 388–89.

The district court “caution[ed] that it [was] not implying that any wedding (particularly

the typical wedding that existed before the COVID-19 pandemic) would be sufficiently

similar to a typical dining experience. . . . Rather, [it was] finding that a wedding that

follows all the same rules that would be applicable to the given venue for dining when

that venue is operating as a restaurant should not be treated differently than a

restaurant.” Id. It thus ordered Plaintiffs “to comply at all times with the relevant health

and safety precautions that have been outlined by the State related to the operations of

restaurants, including (but not limited to) not having a gathering of individuals that is

more than 50-percent of the relevant venue’s capacity.” Id. at 389.

DiMartile and Crawford held their wedding ceremony minutes after the order

issued.

8 III. The Stay Pending Appeal

On Tuesday, August 11—just two business days after the preliminary injunction

issued—the State Defendants noticed their appeal. They also sought a stay pending

appeal both in the district court and in this Court. The district court heard argument on

Defendants’ motion on August 19 and denied the request the same day, explaining that

Defendants had “not made a strong showing that they [were] likely to succeed on the

merits.” DiMartile v. Cuomo,

, at *8 (N.D.N.Y. Aug. 19, 2020).

Defendants found success in this Court, however. On August 21—one day before

the scheduled date of the Giglia-Durolek wedding—we granted a temporary

administrative stay prohibiting enforcement of the district court’s preliminary

injunction, and on September 8, after hearing oral argument, we entered a full stay

pending appeal. The preliminary injunction thus was effective, and only with regard to

Plaintiffs, for fourteen days from its entry. 7

IV. The Appeal

In January 2021, while the stay was in place, this Court heard arguments on the

merits of Defendants’ appeal from the preliminary injunction order. Giglia and Durolek

had in the meantime informed the Court that they no longer planned to hold a wedding

while New York’s gathering limits were in effect. 8 They argued that Defendants’ appeal

was therefore moot, pointing out that DiMartile and Crawford had already married and

that Giglia and Durolek’s change of plans meant that there were “no longer any

pending marriages by or between any of the plaintiffs.” Plaintiffs-Appellees’ Br. 8, Dkt.

7The preliminary injunction did not purport to preclude the State from enforcing the 50-person gathering limit against other parties.

8This change of plans was revealed to our Court in Plaintiffs’ November 2020 merits brief. See Appellees’ Br. 8, Dkt. 76, No. 20-2683 (2d Cir. Nov. 19, 2020).

9 76, No. 20-2683 (2d Cir. Nov. 19, 2020); see also Joint App’x 952 (advising the State

Defendants by letter dated November 10 that the Giglia-Durolek wedding “will not

occur while the restrictions remain in place regardless of the outcome of the appeal”).

In February 2021, we dismissed the appeal, agreeing that the case had become

moot. See DiMartile v. Cuomo,

(2d Cir. 2021). In reaching this

conclusion, the panel observed that plaintiffs-appellees “may successfully moot a case if

they have changed course and if there is no judgment below, adverse to their opponent,

that would remain in effect were the case mooted.”

at 679 (citing City News &

Novelty, Inc. v. City of Waukesha,

, 283–84, 284 n.1 (2001), and City of Erie v.

Pap’s A.M.,

(2000)). It determined that those requirements had been met,

reasoning that “a determination of mootness would not saddle New York with the

consequences of an unfavorable district-court decision because federal appeals courts’

‘established practice’ upon finding a case moot ‘is to reverse or vacate the judgment

below and remand with a direction to dismiss,’”

(quoting United States v.

Munsingwear,

, 39 & n.2 (1950)), “so as to ‘prevent the appellee from

insulating a favorable decision from appellate review,’”

(quoting Russman v. Bd. of

Educ. of Enlarged City Sch. Dist. of City of Watervliet,

(2d Cir. 2001)). The

panel then vacated the preliminary injunction order and remanded the case to the

district court with instructions to dismiss as moot the claims of the two couples.

9 The

district court entered a judgment effecting that order in March 2021.

9With respect to Plaintiff Shamenda, the panel stated that “[his] claims remain pending before the district court,” 834 F. App’x at 679 n.2, since they “were based on the Free Exercise Clause of the First Amendment, which was not the basis of the preliminary injunction challenged on this appeal,” id. at 678 n.1. We “le[ft] it to the district court in the first instance to address those claims, including any issue as to whether they present a case or controversy within the meaning of Article III of the United States Constitution.” Id. at 679 n.2. After remand, the parties stipulated to a voluntary dismissal of those claims. See Fed. R. Civ. P. 41(a)(1)(A)(ii).

10 V. The Fee Application

In April 2021, all five Plaintiffs applied under

for an award of

$124,280 in attorney’s fees, and $916.50 in costs, arguing that they were “prevailing

parties” in the action. The district court rejected their argument and denied their

application. See DiMartile v. Cuomo,

(N.D.N.Y. Nov. 2, 2021)

(“Attorney’s Fees Order”). The district court acknowledged that a party may be eligible

for an award of attorney’s fees under Section 1988 “where the party received a stay or

preliminary injunction,”

at *6 (citing Haley v. Pataki,

(2d Cir. 1997)).

But a party is not eligible for such an award, it observed, where the preliminary

injunction “is reversed, dissolved, or otherwise undone by the final decision in the same

case.”

(quoting Sole v. Wyner,

, 83–85 (2007)).

The district court concluded that, because this Court’s grant of a stay pending

appeal effectively “undid” the preliminary injunction, Plaintiffs were not prevailing

parties under Supreme Court and Second Circuit precedent. It explained that, in

deciding whether to stay enforcement of the preliminary injunction, this Court “would

have assessed whether the State Defendants made a strong showing that they were

likely to succeed on the merits.” Id. at *7 (internal quotation marks omitted and

alteration adopted). Accordingly, it ruled that, in granting the stay, our Court “made a

determination on the merits, meaning the preliminary injunction was reversed,

dissolved or otherwise undone by the Second Circuit’s imposition of the stay pending

appeal.” Id. (internal quotation marks omitted).

With respect to the fact that DiMartile and Crawford held their wedding

ceremony during the pendency of the preliminary injunction, the district court

determined that this victory “occurred due to [the district court’s] grant of the

11 [preliminary injunction] mere hours before the DiMartile/Crawford wedding ceremony,

leaving the State Defendants no chance to appeal or seek a stay of the preliminary

injunction . . . prior to the ceremony.” Id. Accordingly, “Plaintiffs[’] only success in the

lawsuit arose from the unique timing at issue in this case. But for the timing of

Plaintiffs’ motion for preliminary injunction and the [c]ourt’s [order], Plaintiffs would

have left the court ‘empty handed’ with no claims of success.” Id. DiMartile and

Crawford’s success was thus too “fleeting” to confer prevailing party status under

Section 1988. Id. at *8.

This appeal followed.

DISCUSSION

I. Legal Standards

Section 1988(b) of title 42 authorizes district courts, in their discretion, to grant “a

reasonable attorney’s fee” to “the prevailing party” in an action “to enforce a provision”

of various statutes, including

. This authority represents an exception to

the longstanding “American Rule” that “the prevailing litigant is ordinarily not entitled

to collect counsel fees from the loser.” Sole v. Wyner,

(2007) (internal

alterations adopted) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Society,

(1975)). The exception was enacted to help “ensure[] the vindication of important

rights . . . by making attorney’s fees available under a private attorney general theory”

to plaintiffs who succeed in correcting a violation of their civil rights. Farrar v. Hobby,

(1992) (O’Connor, J., concurring); see also City of Riverside v. Rivera,

(1986) (“Congress enacted § 1988 specifically to enable plaintiffs to enforce

the civil rights laws even where the amount of damages at stake would not otherwise

make it feasible for them to do so.”).

12 As a general matter, we review a district court’s decision on a Section 1988 fee

application for abuse of discretion. Haley, 106 F.3d at 482–83. Whether a litigant is a

“prevailing party” within the meaning of Section 1988, however, presents a question of

law as to which we review the district court’s decision de novo. Carter v. Inc. Vill. of Ocean

Beach,

(2d Cir. 2014); Garcia v. Yonkers Sch. Dist.,

(2d

Cir. 2009). The fee applicant bears the burden of showing that it is a prevailing party.

See Hensley v. Eckerhart,

(1983).

A “prevailing party” is one who obtains “actual relief on the merits” that “alters

the legal relationship between the parties by modifying the defendant’s behavior in a

way that directly benefits the plaintiff.” Farrar, 506 U.S. at 111–12; see also Texas State

Teachers Ass’n v. Garland Indep. Sch. Dist.,

, 792–93 (1989) (“The touchstone of

the prevailing party inquiry must be the material alteration of the legal relationship of

the parties in a manner which Congress sought to promote in the fee statute.”).

Precedent teaches that “actual relief on the merits” can be something less than a

favorable final judgment following a full trial on the merits. See Hanrahan v. Hampton,

, 756–57 (1980) (determining that the legislative history of Section 1988

showed that “parties may be considered to have prevailed when they vindicate rights

through a consent judgment or without formally obtaining relief”). But “[n]o material

alteration of the legal relationship between the parties occurs,” the Supreme Court has

instructed, “until the plaintiff becomes entitled to enforce a judgment, consent decree,

or settlement against the defendant.” Farrar,

.

The question in this case is whether the preliminary injunction that was entered

in Plaintiffs’ favor after hasty proceedings, quickly stayed during the pendency of an

appeal, and soon thereafter mooted by Plaintiffs’ own actions, was sufficient to confer

on them prevailing party status. We agree with the district court that it was not.

13 II. The Preliminary Injunction Reflected the District Court’s Assessment of the Merits

In the past, we have held that the grant of a preliminary injunction may suffice to

confer prevailing party status on the moving party. Haley,

. We

explained, however, that to support an award of fees, an order providing such interim

relief must at a minimum be “governed by [the district court’s] assessment of the

merits.”

(citing LaRouche v. Kezer,

, 72–75 (2d Cir. 1994)).

In Haley, we held that the grant of a preliminary injunction sufficed to make the

plaintiffs prevailing parties because, after a “close analysis of the decisional

circumstances and reasoning underlying the grant of preliminary relief,” we were

confident that the district court’s order reflected a determination that the plaintiffs were

likely to succeed on one of their constitutional claims.

(quoting LaRouche,

). Here, relying on Haley, Plaintiffs argue that they are prevailing parties because the

district court’s decision to grant a preliminary injunction rested on a determination that

they were likely to succeed on the merits of their equal protection claim.

There is little question that the district court’s decision here to issue a

preliminary injunction was based on that determination. The district court found that

there was a “high degree of similarity” between the use of the Arrowhead venues for

ordinary dining and wedding receptions and that, despite this similarity, the two uses

were treated differently by Defendants, a differential for which there was “no rational

basis.” PI Order, 478 F. Supp. 3d at 387–88. If the 50%-of-capacity limit was “sufficient to

protect the State’s interest in preventing the spread of COVID-19 when implemented in

restaurants,” the court wrote, there could be “no rational reason” why the 50% capacity

limit would be insufficient “to protect that interest in a wedding[.]” Id. at 388. The court

concluded that “a wedding that follows all the same rules that would be applicable to

14 the given venue for dining when that venue is operating as a restaurant should not be

treated differently than a restaurant.” Id. at 388–89.

As we will explain, however, the district court’s initial hurried determination

that Plaintiffs were likely to succeed on their equal protection claim is insufficient on its

own to establish that Plaintiffs are prevailing parties under Section 1988. 10

III. The Preliminary Injunction Order, Which Was Hastily Entered and Quickly Stayed, Did Not Bring About a Material Alteration of the Parties’ Legal Relationship

As observed above, to establish that they are prevailing parties under Section

1988, Plaintiffs must demonstrate that the preliminary injunction caused a “material

alteration of the legal relationship of the parties in a manner which Congress sought to

promote in the fee statute.” Texas State Teachers Ass’n, 489 U.S. at 792–93. In Sole v.

Wyner, the Supreme Court specified that “transient” victories—i.e., those that are

“reversed, dissolved, or otherwise undone” by a later decision in the same case—will

not suffice.

. Even if a district court’s order granting a preliminary

injunction resulted from a preliminary assessment on the merits, then, the order is not

enough to support an award of attorney’s fees if it did not alter the relationship

between the parties in a meaningful and enduring way.

10Plaintiff Shamenda is not a prevailing party because neither the district court nor the Second Circuit issued a favorable ruling on the merits of his claim. See DiMartile, 834 F. App’x at 678 n.1 (noting that Shamenda’s claims “were based on the Free Exercise Clause of the First Amendment, which was not the basis of the preliminary injunction challenged on [] appeal. [Plaintiffs] do not argue that Shamenda’s claims have any bearing on . . . any [] issue raised by either side in this appeal.”). At oral argument in this Court, Plaintiffs conceded that Shamenda has not received any decision or relief on the merits of his claim and therefore cannot claim prevailing party status.

15 Plaintiffs argue that the preliminary injunction order that they obtained on the

afternoon of August 7 nonetheless suffices because no subsequent decision “called into

question” the underlying merits determination before the case became moot on appeal.

Appellants’ Br. 1. Thus, they urge, the Haley analysis controls and the analysis endorsed

by the Supreme Court in Sole has no application.

We disagree. In Sole, the Supreme Court considered whether the entry of a

preliminary injunction that barred state officials from enforcing an anti-nudity rule

against a plaintiff artist who intended to create, one Valentine’s Day, an art installation

involving nudity conferred prevailing party status on the plaintiff where the lower

court later awarded summary judgment to the defendants. 551 U.S. at 78–81. The Court

acknowledged that the plaintiff “got precisely what she wanted when she commenced

[the] litigation: permission to create the nude peace symbol without state interference”

on Valentine’s Day. Id. at 83. Nonetheless, it decided that this achievement was not

enough, because the plaintiff’s “initial victory was ephemeral”—she “gained no

enduring change in the legal relationship between herself and the state officials she

sued.” Id. at 86 (internal quotation marks omitted and alterations adopted).

In its analysis, the Court emphasized two points. First, the preliminary injunction

proceedings were “hasty and abbreviated,” and represented “only the parties’ opening

engagement.” Id. at 84. Second, the district court’s final ruling on the merits necessarily

“superseded the preliminary ruling.” Id. at 84–85. “At the end of the fray,” the Court

wrote, the state’s anti-nudity rule “remained intact” and the plaintiff had gained no

lasting benefit, id. at 86; her “initial success [was] undone and she le[ft] the courthouse

emptyhanded.” Id. at 78.

In the matter at hand, the district court itself never had an opportunity to reach a

final decision on the merits of Plaintiffs’ claims. Because of the claims’ later mooting,

nor did we. But other considerations that bore on Sole’s reasoning apply with some

16 force here, where the preliminary injunction was hastily entered by the district court

and where it was quickly undone by this Court’s entry of a stay pending appeal. We

conclude that under the present circumstances the preliminary injunction entered by

the district court effected only the type of ephemeral, transient victory that does not

confer prevailing party status under Section 1988.

A. The Preliminary Injunction Proceedings Were Both Hasty and Abbreviated

The hasty and abbreviated nature of the preliminary injunction proceedings

diminishes the weight owed to the district court’s preliminary merits assessment in our

prevailing party analysis. See id. at 84.

Plaintiffs filed suit and moved for the injunction just eight days before the

DiMartile-Crawford wedding, even though indoor dining resumed at 50%-of-capacity

in the Western New York region on June 16, 2020 (at which time non-essential

gatherings remained capped at twenty-five people). The disparate treatment accorded

social gatherings and restaurant dining—which animated Plaintiffs’ equal protection

claim—therefore began six weeks before Plaintiffs filed this suit. 11 Because of their delay

in acting, the preliminary injunction was hastily entered and decided only after an

extremely abbreviated briefing schedule. Defendants were provided just two days to

file their opposition brief after they were served with the complaint and had only two

additional days to prepare for the motion hearing. This compressed timeline afforded

Defendants “little opportunity to oppose” Plaintiffs’ motion. Id. As in Sole, where the

preliminary injunction hearing was held one day after the complaint was filed and one

11Even accepting Plaintiffs’ explanation that Arrowhead’s co-owner, Lucas James, did not learn that the 50-person gathering limit would apply to wedding receptions until July 10, 2020, Plaintiffs fail adequately to explain why it took them an additional twenty-one days to file suit in which they sought immediate relief through a TRO.

17 day before the scheduled art installation, the timing here “allowed no time for

discovery, nor for adequate review of documents or preparation and presentation of

witnesses.” Id. Indeed, at the hearing on the morning of the DiMartile-Crawford

wedding, neither party presented any witnesses. 12 PI Order, 478 F. Supp. 3d at 382. The

rapid timeline also restricted the time available for the district court to consider the

legal issues underlying Plaintiffs’ claims: it had just four hours after the end of the

preliminary injunction hearing to render its decision before the wedding would either

occur or be halted.

Through no fault of its own, the district court’s merits assessment, then, rests on

a hurriedly constructed foundation. See Sole,

(“The foundation for [a

success on the merits] assessment will be more or less secure depending on the

thoroughness of the exploration undertaken by the parties and the court.”). It was not

the product of thorough briefing and searching review, but the result of relatively “little

time and resources.”

We therefore comfortably conclude that, for Section 1988

purposes, Plaintiffs’ eleventh-hour success in obtaining a preliminary injunction was

12Neither party offered proper expert testimony to support their respective positions on the related public health questions until later in the litigation. To their motion for a preliminary injunction, Plaintiffs attached a declaration that a Dr. George Delgado had authored in Soos,

, the matter in which DiMartile and Crawford had unsuccessfully tried to intervene. They did not offer an expert declaration of their own, tailored to the facts of this case, until they opposed Defendants’ motion for a stay pending appeal. Defendants submitted the declaration of Adrienne V. Mazeau, the Deputy Director of the Office of Public Health at the New York State Department of Health, in opposition to Plaintiffs’ motion for a preliminary injunction, but a review of her declaration reveals that she did not offer her opinions on any scientific matter. She instead provided high-level information about the COVID-19 virus, an overview of guidance issued by the Centers for Disease Control (“CDC”) on reducing the virus’s spread, and a timeline of New York’s response to the pandemic. Not until Defendants sought a stay pending appeal did they present the testimony of Dr. Howard Zucker, then the Commissioner of the New York State Department of Health, who offered his expert opinion on the comparative risks of social gatherings, like wedding receptions, and restaurant dining.

18 provisional and tentative in nature, not material and enduring. See id.; see also Roberts v.

Neace,

(6th Cir. 2023) (“An ill-considered, hastily entered, or tentative

injunction points against enduring relief.”).

B. The Preliminary Injunction Was “Undone” by This Court’s Stay

The preliminary injunction entered by the district court represented only a

“transient victory” for Plaintiffs and did not result in a “material alteration of the legal

relationship of the parties” also because the stay that we entered “undid” the effects of

the injunction within two weeks of its issuance. Sole,

.

Plaintiffs’ argument that this Court’s stay did not “undo” the preliminary

injunction because the injunction allowed one of the plaintiff couples to marry ignores

the stay’s more extensive practical effects. Because of the stay, the preliminary

injunction was exceedingly brief. As we have described, it was never reinstated. See

Roberts,

(considering the “longevity” of the interim relief as a factor when

determining whether the relief conferred prevailing party status). And, as in Sole, the

law that Plaintiffs challenged here “remained intact” at the end of the litigation;

Plaintiffs thus “gained no enduring change in the legal relationship” between

themselves and Defendants with respect to the law that they challenged. Sole,

(internal quotation marks omitted and alterations adopted).

This is particularly true for Giglia and Durolek, who failed to obtain any relief at

all from the preliminary injunction. 13 The Supreme Court has been explicit in

addressing the prevailing party issue that “[w]hatever relief the plaintiff secures must

directly benefit him at the time of the judgment or settlement. . . . Otherwise the

judgment or settlement cannot be said to affect the behavior of the defendant toward

13 It is also true, of course, as to Plaintiff Shamenda. See nn. 9 and 10, above.

19 the plaintiff.” Farrar,

(internal quotation marks omitted and alteration

adopted). Here, Defendants obtained a stay before Giglia and Durolek’s planned

wedding ceremony on August 22. The litigation for that couple ended when they

mooted their own claims during the pendency of Defendants’ appeal. In their own

words, Giglia and Durolek had “their hopes ripped away” by the stay, Reply Br. 5 n.2,

and they then “made the difficult decision to postpone their wedding ceremony

indefinitely,” Appellants’ Br. 16. The preliminary injunction thus did not modify

Defendants’ behavior towards Giglia and Durolek in a way that provided them with

any direct benefit. At the end of the litigation, Giglia and Durolek left the courthouse

both emptyhanded and unwed. 14

The Eighth Circuit’s decision in Doe v. Nixon,

(8th Cir. 2013), is

persuasive and on point. In Doe, the court held that plaintiffs who obtained a

preliminary injunction prohibiting enforcement of a Missouri law that was operative

annually on October 31 15—Halloween—were not prevailing parties because on October

30 the defendants secured a stay of the injunction that allowed the law to be enforced as

intended on October 31.

. The Doe court reasoned that the plaintiffs “achieved

an even less significant victory with their preliminary injunction than did the plaintiff in

14Relatedly, the work records that Plaintiffs’ attorneys submitted to the district court show that, as early as August 12, 2020, counsel began researching the implications of mootness on their clients’ ability to recover fees. From this, Defendants suggest we infer that “plaintiffs’ counsel expressly sought” to moot the case “to bolster a claim for fees.” State Appellees’ Br. 41. While any such motivation may not carry much, if any, weight in the prevailing party decision, it does appear that the goal of recovering fees may have animated Plaintiffs’ action mooting the appeal. See Joint App’x 953 (time entries in October and November 2020 reflecting research on “availability of attorney[’]s fees in case of partial success” and planning “for discontinuance of action and withdrawal of appeal in manner that does not prejudice client’s recovery of attorneys’ fees”).

15The law required convicted sex offenders to stay inside on Halloween and post signs outside their homes advising, “No candy or treats at this residence.”

(8th Cir. 2013).

20 Sole,” since they were unable to benefit from the judicial relief that the preliminary

injunction would have provided absent the stay.

16

Plaintiffs resist the comparison to Doe, arguing that unlike the plaintiffs in that

case, who were unable to benefit at all from the preliminary injunction, Giglia and

Durolek “could have married during the two-week period between the entry of the

District Court’s injunction and the stay order from this Court.” Reply Br. 14 (emphasis

in original). Even if we accept this proposition, 17 the fact remains that Giglia and

Durolek did not hold their wedding while the preliminary injunction was in effect, and

therefore did not benefit from it. Like the plaintiffs in Doe, Giglia and Durolek obtained

“a judicial pronouncement without judicial relief.” Doe,

. We conclude,

then, that they are not prevailing parties under Section 1988.

Although a closer question, we decide that DiMartile and Crawford, too, are not

prevailing parties. To be sure, they were able to wed in the presence of more than fifty

guests in the hours immediately following entry of the preliminary injunction. But

Defendants succeeded in blocking the preliminary injunction at their first opportunity.

As the district court observed, Defendants had no earlier chance to block the injunction.

16The chronology of the Doe litigation is analogous to that presented here. The Doe plaintiffs obtained a preliminary injunction, whose effect was stayed by the Eighth Circuit pending appeal. After October 31 passed, the Eighth Circuit granted the Doe plaintiffs’ motion to dismiss the defendants’ appeal as moot. See

.

17The record suggests that the possibility is theoretical at best: Giglia and Durolek themselves assert on appeal that they “commenced this lawsuit to obtain a preliminary injunction to have a wedding on a date certain, August 22, 2020,” Appellants’ Br. 16 (emphasis added), and the district court’s order enjoined Defendants “from enforcing the [50-person gathering limit] against Plaintiffs in the operation of their weddings at the above-referenced venues.” 478 F. Supp. 3d at 389. It is not clear to us that the district court intended its narrow order to permit Giglia and Durolek to hold a large wedding on a date other than August 22, 2020. The couple flags nothing in the record as indicating that their chosen wedding venue would have been available to them on a date earlier than August 22.

21 See Attorney’s Fees Order,

, at *7. We reject Plaintiffs’ argument that,

because it “was not a reversal on the merits,” the stay order did not undermine the

import of DiMartile and Crawford’s success in obtaining preliminary relief. Appellants’

Br. 25. Their contention overlooks both the practical realities of the situation and that

this Court was required to—and did—evaluate Defendants’ likelihood of success on the

merits as part of the inquiry governing stays pending appeal. See Agudath Israel of Am. v.

Cuomo,

, 226 (2d Cir. 2020) (“To obtain a stay of a district court’s order

pending appeal, more is required [than obtaining a preliminary injunction], including a

strong showing that the movant is likely to succeed on the merits.” (internal quotation

marks omitted and alteration adopted)).

A stay pending appeal is not a matter of right. To obtain that temporary relief,

the party requesting it must show that the circumstances of the case justify the exercise

of judicial discretion. See Nken v. Holder,

, 433–34 (2009). When assessing

whether to issue a stay pending appeal, an appellate court must consider “(1) whether

the stay applicant has made a strong showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance

of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.”

at 425–26 (quoting Hilton v. Braunskill,

(1987)). It is well established that the first two factors “are the most critical,” id.

at 434, and that both must be satisfied, see id. at 438 (Kennedy, J., concurring) (“When

considering success on the merits and irreparable harm, courts cannot dispense with the

required showing of one simply because there is a strong likelihood of the other.”). To

satisfy the “success on the merits” factor, the moving party must show that his chance

of success on the merits is more than a “mere possibility.” Id. at 434.

Although this Court’s brief order granting a stay in this case did not detail the

panel’s analysis, the panel was required to find that the “success on the merits” factor

22 weighed in Defendants’ favor before it could exercise its discretion to afford relief. The

entry of that order, then, necessarily undermines the district court’s preliminary

injunction decision, which identified the “success on the merits” factor as favorable to

Plaintiffs. 18 In other words, we found cause to exercise our judicial discretion and in

doing so, although not rejecting it expressly, surely cannot be understood to have

endorsed the legal premise on which the district court centered its analysis.

Plaintiffs rely further on our decision in Kirk v. New York State Dep’t of Educ.,

(2d Cir. 2011), urging that DiMartile and Crawford are entitled to “keep” their

success once they have achieved it by securing a fee award. Kirk, however, concerned

circumstances quite at odds with those before us. In Kirk, the plaintiff successfully

challenged a New York state law restricting professional veterinarian licenses to U.S.

citizens and lawful permanent residents and obtained a final judgment from the district

court requiring the state to issue him a license.

. New York then issued him a

18On appeal, Plaintiffs contend that the panel hearing the stay motion “was focused on the lack of harm to the Plaintiffs in continuing the stay, which eliminated the need to consider the merits of Plaintiffs’ claims.” Appellants’ Br. 19. Not only is this contention wrong on the law—this Court was required to consider the merits in assessing whether a stay was appropriate—it is also belied by the oral argument transcript from the motion hearing. The Court asked multiple questions about the merits of Plaintiffs’ claim and expressed skepticism regarding the district court’s conclusion that the challenged regulation could not pass rational basis review. For example, members of the panel questioned whether the district court’s emphasis on the similarities that it identified between Plaintiffs’ weddings and restaurant dining was “problematic,” and suggested that the correct framing was whether the State had a rational basis for distinguishing large social gatherings of any type from ordinary restaurant dining. See Oral Argument at 15:07–15:50, No. 20–2683 (Sept. 4, 2020). The panel confirmed with the State that its 50-person gathering limit applied with equal force to weddings and non-religious events, like fundraising dinners and civic banquets, and focused its attention on the differences between planned social gatherings, where guests typically gather for hours and mingle with other guests, and ordinary restaurant dining, where patrons sit at their own tables, do not mingle with other restaurant patrons, and leave after they have finished their meals.

23 license.

At some point after the state appealed, the plaintiff received permanent

resident status, making the state’s appeal moot.

We distinguished Kirk’s case from Sole, explaining that Kirk “did not leave court

empty handed; he . . . left with an order requiring the [state] to issue him a veterinarian

license. . . . [T]hat judicially sanctioned change remains in place to this day because . . .

once Kirk received the license, he was entitled to keep it.”

at 138–39. But in Kirk, the

state neither asked for nor received a stay during the pendency of the appeal. Thus, “no

court overturned Kirk’s favorable judgment on the merits or rejected the legal premise of

the district court’s decision.”

(emphasis added). 19 The same is not true here,

where Defendants successfully obtained a stay from this Court blocking enforcement of

the preliminary injunction. Our stay at least drew into question the district court’s

likelihood-of-success ruling.

Defendants’ success here in obtaining a stay meant that the relief granted to

DiMartile and Crawford was inherently transitory. The couple held a single event that

exceeded Defendants’ 50-person limit on non-essential gatherings for a matter of hours.

They did not disrupt the State’s gathering limit in any way that could be considered

enduring. 20 And even absent the district court’s preliminary injunction, DiMartile and

Crawford would have been able to wed, albeit in the presence of fewer friends and

19Another case on which Plaintiffs rely heavily, Haley (discussed supra in Part II), is distinguishable for a similar reason. Although the defendants in Haley asked for a stay pending appeal from this Court, they did not succeed in obtaining one. See

.

20We note that the Supreme Court in Sole found the preliminary injunction insufficient to confer prevailing party status even though the injunction expired on its own terms after preventing state officials from interfering with the plaintiff’s Valentine’s Day nude art installation. 551 U.S. at 80–81. Securing interim relief—even relief that cannot be revisited—is thus insufficient to confer prevailing party status where the merits ruling underlying the decision is undone by a later decision in the same case. Id. at 83.

24 family members. The relief that Kirk was entitled to “keep,” by contrast, was a

veterinary license that, “because of the vagaries of New York’s Education Law, could

not be revoked” once issued. Id. at 136. Thus, Kirk achieved a change in his relationship

with the state that continued after litigation ended.

Kirk also has limited force here because the plaintiff in that case won at summary

judgment “on a fully developed record,” while DiMartile and Crawford achieved only

provisional relief in the form of a preliminary injunction entered without the benefit of

discovery or a full hearing. See id. at 138 (explaining that “Sole emphasized the unique

nature of preliminary injunctions”). This difference is material. As we discuss supra in

part III.A, DiMartile and Crawford were able to marry in the presence of more than fifty

guests at least in part because they delayed bringing suit, resulting in a hurried

litigation timeline that enabled them to obtain provisional relief at the threshold of their

case just minutes before their wedding was scheduled to start. The district court’s

decision reflected not a final resolution on the merits, but a “preliminary

determination” regarding Plaintiffs’ likelihood of success on their equal protection

claim. Id. The extraordinarily compressed timeline also deprived Defendants of a

meaningful opportunity to seek a stay pending appeal before DiMartile and Crawford’s

wedding. It seems to us reasonable to conclude that, but for their delay, DiMartile and

Crawford—like Giglia and Durolek—could well have left the courthouse emptyhanded,

forced to choose between delaying their wedding or hosting a celebration with fifty or

fewer guests.

In sum, Plaintiffs were able to obtain any relief at all in part because of the

delayed initiation of their lawsuit. The order that granted that relief was almost

immediately blocked by this Court pending appeal. Plaintiffs fail to point to a single

case in which a court determined that a preliminary injunction later stayed pending

appeal could confer prevailing party status. Any success obtained by Plaintiffs here was

25 “ephemeral,” not “enduring,” Sole,

, and did not work the type of

“material alteration of [a] legal relationship” that Congress envisioned when it enacted

Section 1988, Texas State Teachers Ass’n, 489 U.S. at 792–93.

CONCLUSION

Determining whether a district court’s grant of interim relief confers prevailing

party status under Section 1988 is often a fact-intensive inquiry. Here, Plaintiffs

managed to secure a preliminary injunction with just forty-five minutes to spare after a

hasty and abbreviated briefing schedule, the brevity of which was caused largely by

their own delay in filing suit. Their initial success was fleeting: Defendants succeeded in

obtaining a stay of the injunction from this Court within two weeks of its issuance, and

the district court’s order was later vacated after Plaintiffs intentionally mooted their

claims during the pendency of Defendants’ appeal. Given this constellation of factors,

the short-lived preliminary injunction in this case does not support a determination that

Plaintiffs are prevailing parties eligible for attorney’s fees under Section 1988. For these

reasons, we AFFIRM the judgment of the district court.

26