In some instances, attorneys fees are available to lawyers who get preliminary junctions. In order to get fees, the injunction must be granted on the merits. Otherwise, you have a great result for the client, but nothing for the lawyer.
The case is R.G. v. Warwick Valley School District, a summary order issued on August 21. This case goes back to 2004. The plaintiff was a schoolboy who got in trouble for alleged inappropriate activity with female classmates. The boy was suspended but the girls were not. The boy sued in federal court under the Equal Protection Clause over the unequal punishment.
Injunctions can issue if the trial court thinks the plaintiff has a likelihood of success on the merits of the claim and will suffer irreparable harm without the injunction. It's the "likelihood of success" element that reaches the merits of the case. Irreparable harm does not mean the plaintiff has a great case; it means the plaintiff will suffer an irreparable loss without the injunction, i.e., the loss of a constitutional right or the ability to attend school. In this instance, the trial court stayed the suspension pending a hearing on the merits. After the hearing, the boy graduated, and the case was mooted out. Counsel moved for attorneys' fees, which the district court denied since the favorable ruling that stayed the suspension was not on the merits but irreparable harm.
The Court of Appeals affirms. The general rule is that "[t]he procurement of a TRO in which the court does not address the merits of the case but simply preserves the status quo to avoid irreparable harm to the plaintiff is not by itself sufficient to give a plaintiff prevailing party status.” In this case, the Second Circuit says, "the transcript of the December 1, 2004 preliminary injunction hearing demonstrates that Judge Brieant’s decision was motivated 'by his concern for the irreparable harm the suspension would cause to M.G. while he exhausted administrative remedies, and not by his consideration of the merits of Plaintiffs’ claims.'” While Judge Brieant did say that “there do not seem to be any substantial issues of controverted fact which would require the taking of evidence at this stage,” he also noted that “[a]s to the ultimate merits, of course, plenary trial would be necessary.” That ambiguity does not entitle counsel to fees. Uncertain statements like this do not create prevailing parties.