Garcia v. Yonkers School District, No. 07-3167 (2d Cir. 2009)

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07-3167-cv Garcia v. Yonkers School District 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term 2008 4 Docket No. 07-3167-cv 5 Argued: November 14, 2008 6 _____________________________________________________________________________ 7 8 9 CARLOS GARCIA, on his own behalf and on behalf of all those similarly situated, BRUCE MERLO, on his own behalf and on behalf of all those similarly situated, and LYCELIN POLANCO, on her own behalf and on behalf of all those similarly situated, Plaintiffs-Appellees, 10 11 12 13 Decided: April 1, 2009 - v.YONKERS SCHOOL DISTRICT, ANGELO PETRONE, and ROCCO GRASSI, Defendants-Appellants.* 14 15 _____________________________________________________________________________ 16 Before: MINER, SOTOMAYOR, and KATZMANN, Circuit Judges. 17 18 19 20 21 22 23 Defendants-appellants appeal from a judgment of the United States District Court for the Southern District of New York (Robinson, J.) granting plaintiffs-appellees motion for attorney s fees, the district court having found that (1) the defendants received adequate notice prior to the court s oral grant of a temporary restraining order and preliminary injunction; (2) the plaintiffs were prevailing parties under 42 U.S.C. § 1988(b) for purposes of awarding attorney s fees; and (3) the amount of time spent on the case and the hourly rate proposed by plaintiffs counsel were appropriate and reasonable. 24 Reversed. 25 26 27 CHRISTOPHER D. WATKINS (Michael H. Sussman, on the brief), Sussman & Watkins, Goshen, New York, for plaintiffs-appellees. 28 29 30 31 JAMES P. DROHAN (Lawrence W. Thomas, on the brief), Donoghue, Thomas, Auslander & Drohan, LLP, Hopewell Junction, New York, for defendants-appellants. * The Clerk of Court is directed to amend the official caption as set forth above. 1 1 MINER, Circuit Judge: 2 Defendants-appellants Yonkers School District, Superintendent Angelo Petrone, and 3 Principal Rocco Grassi (collectively, the School District or Defendants ) appeal from a 4 judgment of the United States District Court for the Southern District of New York (Robinson, 5 J.) granting a motion filed by counsel for the plaintiffs-appellees, Carlos Garcia, Bruce Merlo, 6 and Lycelin Polanco (the Individual Students ), on their behalf and on behalf of all similarly 7 situated persons (collectively, the Students or Plaintiffs ), seeking attorney s fees. The 8 District Court found that (1) the School District received adequate notice prior to the court s oral 9 grant of a temporary restraining order and preliminary injunction; (2) the Students were 10 prevailing parties under 42 U.S.C. § 1988(b) for purposes of awarding attorney s fees; and (3) the 11 amount of time spent on the case and the hourly rate proposed by the Students counsel were 12 appropriate and reasonable. For the reasons that follow, we reverse the judgment of the District 13 Court granting attorney s fees. 14 I. BACKGROUND 15 On September 10, 2004, the Individual Students and a number of other students walked 16 out of Gorton High School in Yonkers, New York, during school hours and headed for Yonkers 17 City Hall. At City Hall, the Students protested recent cuts to the budget of the Yonkers School 18 District, the budget having been reduced by $26 million for the 2004 2005 school year. 19 Apparently, a similar demonstration had proved effective at staunching the previous year s cuts 20 to the Yonkers School District budget. According to the plaintiffs, none of the students who 21 walked out of Gorton High School at the previous year s demonstration were penalized for their 22 act of protest, although they had violated the rules against leaving school grounds during school 23 hours. The Students, however, were classified as Level IV offenders for their departure from the 24 school grounds. Level IV is the most serious disciplinary status and is reserved for those who 25 engage in violent or dangerous conduct. Based on this classification, the School District 26 imposed upon the Students a five-day period of suspension. 27 28 On September 15, 2004, after having served two of the five days suspension, the Students filed a complaint and an order to show cause in the District Court citing violations of 2 1 their First Amendment rights and requesting, inter alia, that the court temporarily, preliminarily 2 and permanently enjoin [the School District] from imposing the suspensions on them. A 3 hearing was scheduled to be held on the noon of that same day to address the order to show 4 cause or temporary restraining order brought on by Garcia, et al. The School District was 5 notified of the hearing by telephone that morning. As the School District s counsel was entering 6 the court to attend the hearing, he was provided with the Students memorandum of law in 7 support of the temporary restraining order and preliminary injunction, excerpts from the Yonkers 8 Public School Code of Conduct (the Code of Conduct ), one of the disciplinary review forms 9 utilized by the School District in connection with the suspensions, and ten affidavits. The 10 hearing commenced at noon, and the School District s counsel noted at the beginning of his 11 statement: I haven t had a chance to review completely review the papers yet, but I do have 12 some comments here. The District Court acknowledged the lack of preparation time afforded to 13 the School District s counsel in its colloquy with counsel: And I know you haven t had a chance 14 to read [the affidavits] fully. Both defendants Superintendent Angelo Petrone and Principal 15 Rocco Grassi were present at the hearing. 16 The District Court focused mainly on the punishment imposed on the Students for their 17 actions in derogation of the Code of Conduct. The District Court noted that the Students were 18 punished for a Level IV disciplinary action despite the Code of Conduct providing for a Level II 19 and, at most, a Level III disciplinary action for a student leaving school grounds during 20 school hours. The District Court summarized its concern in a rhetorical question: 21 22 23 24 25 26 27 28 [Level IV punishes] [u]se of a weapon. Possession of a weapon. . . . Assault. Menacing. Selling, giving or delivering alcoholic beverage. . . . Defacing, vandalizing or destroying property. Possession or use of fireworks, poppers, smoke or stink bombs, et cetera.. . . . Engaging in the offense of retaliation against any school employee. Any felony as defined by the criminal justice system. Bomb threats or terrorist threats. Sexual offenses. Theft, burglary. False alarm; that is, falsely activating a fire alarm. How is this [walk out by the Students] a Level IV? 29 In response, the School District s counsel seemed to concede that the Students conduct did not 30 amount to a Level IV violation. Later during the hearing, however, Principal Rocco Grassi 31 explained that the Students walk-out rose to the level of violent and dangerous conduct 3 1 because of the confluence of several factors: (1) the Students walked out despite repeated 2 warnings not to do so; (2) the Students push[ed] past security and plac[ed] themselves in 3 danger out on the street ; and (3) several of the students who walked out returned and 4 assembled alongside of the [school] and were chanting . . . to their fellow students: Break 5 out. 6 Unpersuaded by the testimony of Principal Rocco Grassi, the District Court found that the 7 Students had shown a likelihood of success on their First Amendment claim that they were 8 improperly punished for exercising protected speech.1 The District Court suggested, however, 9 that the School District could prevail if it could present evidence that the imposition of a Level 10 IV disciplinary action applied to all walk-outs and not only to the Students walk-out in their 11 exercise of protected speech. In an apparent conclusion, the District Court stated: So I m going 12 to grant the temporary restraining order. Here is what I will do. And preliminary injunction. I 13 will sign it in a few moments. But the District Court then immediately stated that it would 14 provide an opportunity to the School District to put forth evidence at another hearing, if 15 requested, early next week so that we can . . . get a definitive ruling on this quickly. At no 16 time did the District Court make written findings or sign a preliminary injunction or temporary 17 restraining order. 18 On September 22, 2004, the School District informed the District Court that it does not 19 request a hearing but would request the opportunity to submit responsive papers on the 20 [Students ] application for an injunction. Thereafter, the School District filed a memorandum in 21 opposition to the Students request for a temporary restraining order and preliminary injunction, 22 and the Students filed a reply memorandum in response to the School District s opposing 23 memorandum. Subsequent to the hearing, the Students were not subject to continued or further 24 suspensions relating to the September 10, 2004 protest beyond the two days served; however, the 25 Level IV notation remained on the Students disciplinary records. 1 The District Court also found that there is irreparable harm because the Students records would be tarnished by a Level IV offense for violent and dangerous conduct, which would affect their future educational and professional opportunities. 4 1 By mid-year of 2006, the District Court still had not made a ruling on the arguments 2 made in the parties memoranda. In June and July of 2006, after the Students graduated from 3 Gorton High School, counsel for the Students wrote the School District, asking it to resolve this 4 case. Counsel did not receive a response from the School District. On December 7, 2006, 5 counsel filed with the District Court a notice of a motion for attorney s fees and costs, claiming 6 that he was entitled to fees and costs because the Students were prevailing parties under 42 7 U.S.C. § 1988. Counsel based his argument on the theory that the District Court s grant of the 8 temporary restraining order ripen[ed] into a preliminary injunction. After submission of a 9 written opposition by the School District and a reply by counsel, the District Court granted 10 counsel s application for attorney s fees and costs in a published decision and order. See Garcia 11 v. Yonkers Sch. Dist., 499 F. Supp. 2d 421, 426 (S.D.N.Y. 2007). 12 In its published decision and order, the District Court stated that it had granted the 13 Students request for a temporary restraining order and preliminary injunction at the September 14 15, 2004 hearing. Id. at 423 24. In so concluding, the District Court referred to its own 15 statement at the hearing: I m going to grant the temporary restraining order. Here is what I will 16 do. And preliminary injunction. I will sign it in a few moments. Id. at 424. The District Court 17 then explained that it was not precluded by Fed. R. Civ. P. 65(a)(1) from entering a preliminary 18 injunction against the School District because the School District had adequate notice and a fair 19 opportunity to oppose the request for a preliminary injunction at the September 15, 2004 20 hearing. Id. The District Court referred to the School District s counsel s appearance at the 21 hearing accompanied by named Defendants Petrone and Grassi and noted that the School 22 District presented an argument in support of [its] position. Id. 23 Having concluded that a preliminary injunction had been entered, the District Court stated 24 that the entry of that injunction was a sufficient basis for granting the attorney s fees. Id. at 425. 25 The District Court explained that its grant of a preliminary injunction was based on the merits of 26 the Students First Amendment claims and, thus, created a material alteration in the legal 27 relationship of the parties to this case. Id. The District Court observed that, consistent with the 5 1 entry of a preliminary injunction, the School District did not attempt to continue the suspension 2 of the Students after the September 15, 2004 hearing. See id. at 425 26. The District Court thus 3 concluded that the Students were prevailing parties under 42 U.S.C. § 1988(b), and, therefore, 4 that their counsel was entitled to attorney s fees and costs. See id. 5 To the extent the amount of attorney s fees was concerned, the District Court found that 6 the fees sought were appropriate and reasonable in light of counsel s highly qualified background 7 and experience in civil rights litigation. Id. at 426. The District Court also found no error in 8 counsel s computation of the time expended on the case. Id. Accordingly, the District Court 9 ordered the School District to pay attorney s fees and costs in the amount of $10,487.50. Id. 10 Judgment was entered in due course, and this timely appeal followed. 11 II. DISCUSSION 12 A. Standard of Review 13 We review the district court s grant of attorney s fees for abuse of discretion. See Auto. 14 Club of N.Y., Inc. v. Dykstra, 520 F.3d 210, 217 (2d Cir. 2008). Inasmuch as the resolution of 15 the district court s grant of attorney s fees implicates questions of law, our review is de novo. 16 See Williams v. Beemiller, Inc., 527 F.3d 259, 264 (2d Cir. 2008) (stating that questions of 17 statutory construction, including the district court s interpretation of the Federal Rules of Civil 18 Procedure, are reviewed de novo (citations omitted)). 19 B. Attorney s Fees Under Section 1988(b) 20 Section 1988(b) permits reasonable attorney s fees and costs to be awarded to a 21 prevailing party in any action or proceeding in connection with enforcing the provisions of 42 22 U.S.C. § 1983. See 42 U.S.C. § 1988(b). The Supreme Court has held that a prevailing party 23 is one who has favorably effected a material alteration of the legal relationship of the parties by 24 court order. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep t of Health & Human Res., 532 25 U.S. 598, 604 (2001) (quoting Texas State Teachers Ass n v. Garland Indep. School Dist., 489 26 U.S. 782, 792 93 (1989)); see also Vacchio v. Ashcroft, 404 F.3d 663, 674 (2d Cir. 2005); see 27 also Black s Law Dictionary 1154 (8th ed. 2004) (defining prevailing party as [a] party in 28 whose favor a judgment is rendered, regardless of the amount of damages awarded ). Thus, for 6 1 example, the entry of an enforceable judgment, such as a stay or preliminary injunction, may 2 permit the district court to confer prevailing-party status on the plaintiff notwithstanding the 3 absence of a final judgment on the underlying claim.2 See Vacchio, 404 F.3d at 674 ( [S]tatus as 4 a prevailing party is conferred whenever there is a court ordered change in the legal relationship 5 between the plaintiff and the defendant or a material alteration of the legal relationship of the 6 parties. (citing Pres. Coalition of Erie County v. Federal Transit Admin., 356 F.3d 444, 452 (2d 7 Cir. 2004) (alterations and internal quotation marks omitted))); Haley v. Pataki, 106 F.3d 478, 8 483 84 (2d Cir. 1997) (awarding attorney s fees pursuant to § 1988(b) to party prevailing on 9 preliminary injunction). 10 Although prevailing party is thus construed broadly, a plaintiff is not a prevailing 11 party if he or she achieves the desired result because the lawsuit brought about a voluntary 12 change in the defendant s conduct. Buckhannon, 532 U.S. at 601, 605. The Supreme Court has 13 explained that such a voluntary change in defendant s conduct lacks the necessary judicial 14 imprimatur on the change to accord prevailing-party status to the plaintiff. Id. at 605. 15 Moreover, a plaintiff who secures interim relief that is later reversed, dissolved, or otherwise 16 undone by the final decision in the same case is not a prevailing party. Sole v. Wyner, 127 S. 17 Ct. 2188, 2195 (2007); see id. at 2192 ( A plaintiff who achieves a transient victory at the 18 threshold of an action can gain no award under that fee-shifting provision if, at the end of the 19 litigation, her initial success is undone and she leaves the courthouse emptyhanded. ). 20 With these legal principles in mind, we conclude that attorney s fees were erroneously 21 granted because the Students were not, in fact, prevailing parties. The District Court did not 22 issue a preliminary injunction or a temporary restraining order at the September 15, 2004 23 hearing, and, therefore, there was nothing that could serve as a basis for conferring prevailing- 24 party status on the Students. Further, even if the District Court had granted the Students request 25 for a temporary restraining order, the Students were not prevailing parties because the court never 26 finally addressed the merits of the Students underlying First Amendment claim. 2 It is undisputed that no final judgment on the underlying First Amendment claim was entered in this case. See Garcia, 499 F. Supp. 2d at 425. 7 1 2 1. The Preliminary Injunction A district court s interpretation of its own order is generally reviewed for abuse of 3 discretion. See United States v. Spallone, 399 F.3d 415, 423 (2d Cir. 2005) ( When an issuing 4 judge interprets his own orders, we accord substantial deference to the draftsman, and we will not 5 reverse the judge s construction of an ambiguity in his own words except for abuse of 6 discretion. ). Nonetheless, 7 8 9 10 11 we do not give equal deference to every aspect of a court s decision. The abuse of discretion standard is used to evaluate the . . . court s application of the facts to the appropriate legal standard, and the factual findings and legal conclusions underlying such decisions are evaluated under the clearly erroneous and de novo standards, respect[ively]. 12 Matter of VMS Sec. Litig., 103 F.3d 1317, 1323 (7th Cir. 1996) (internal quotation marks 13 omitted). Accordingly, we review de novo the legal question of whether the district court issued 14 a preliminary injunction or restraining order in satisfaction of Fed. R. Civ. P. 65. See United 15 States v. Camacho, 370 F.3d 303, 305 (2d Cir. 2004) (reviewing de novo whether a criminal 16 judgment is final for purposes of Fed. R. Crim. P. 33). 17 Here, notwithstanding the District Court s conclusion in retrospect that it had granted the 18 preliminary injunction at the September 15, 2004 hearing, it is unclear upon our review of the 19 transcript whether the District Court intended to grant the injunction at the hastily convened 20 hearing. To be sure, the District Court stated at one time that it was going to grant the 21 temporary restraining order. Here is what I will do. And preliminary injunction. I will sign it in 22 a few moments. In the context of the entire proceedings, however, the meaning of this plain 23 statement is complicated by various findings and comments by the District Court made before 24 and after the granting of the injunction and/or restraining order. See Spallone, 399 F.3d at 424 25 (stating that this Court examines the entire record for the purpose of determining what was 26 decided (internal quotation marks omitted)). 27 The transcript of the hearing reveals that, on the one hand, the District Court thought that 28 the Students First Amendment claims were meritorious in light of the disproportionate Level IV 29 punishment imposed on the Students for an infraction that should have placed them at Level II 30 or, at most, Level III. On the other hand, the District Court also noted that it was appropriate for 8 1 the School District to punish the Students for violating the Code of Conduct and, in fact, that the 2 School District may prevail in opposing the injunction if it could show that a Level IV 3 punishment is the ordinary disciplinary action taken against all students who leave school 4 grounds during school hours. 5 Adding to the ambivalence of the District Court s opinion on the merits of the case, the 6 District Court informed the School District immediately after stating that it was going to grant 7 the temporary restraining order. . . . [a]nd preliminary injunction (emphasis added) that the 8 School District would be given an opportunity to present evidence early next week so that we 9 can . . . get a definitive ruling on this quickly. Despite its earlier indication that it would do so, 10 it is noteworthy that the District Court did not sign either a temporary restraining order or a 11 preliminary injunction order. Thus, it is apparent that the District Court ultimately decided 12 against entering a preliminary injunction at the September 15, 2004 hearing. We also note that 13 even the Students counsel believed that the District Court had not entered a preliminary 14 injunction at the hearing, as made clear in his motion for attorney s fees. In that motion, counsel 15 did not argue that a preliminary injunction had issued; rather, he argued that the temporary 16 restraining order ripen[ed] into a preliminary injunction. 17 Most significantly, the purported preliminary injunction was lacking in the required form 18 and content. Rule 65(d)(1) of the Federal Rules of Civil Procedure requires every injunction and 19 restraining order to: 20 21 22 23 (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail and not by referring to the complaint or other document the act or acts restrained or required. 24 In this case, the District Court s statements at the hearing do not describe in reasonable detail the 25 extent of the acts restrained, such as whether the School District would be restrained from 26 imposing a lesser punishment. In this respect, it is noted that the School District was not ordered 27 to expunge from the Students educational records the Level IV notations at issue. See Petrello 28 v. White, 533 F.3d 110, 114 (2d Cir. 2008) ( [Rule 65(d)] reflects Congress concern with the 29 dangers inherent in the threat of a contempt citation for violation of an order so vague that an 9 1 enjoined party may unwittingly and unintentionally transcend its bounds. (internal quotation 2 marks omitted)); Rosen v. Siegel, 106 F.3d 28, 32 (2d Cir. 1997) ( [Rule 65(d)] is designed to 3 prevent uncertainty and confusion on the part of those to whom the injunction is directed, and to 4 be sure that the appellate court knows precisely what it is reviewing. (quoting Calvin Klein 5 Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 669 (8th Cir. 1987) (internal quotation 6 marks omitted))). Further, although the District Court remarked at some length on the merits of 7 the Students First Amendment claim, it was ultimately interested in awaiting further facts before 8 making any factual determinations: 9 10 11 12 13 14 15 16 17 18 19 20 So, I m troubled. So I think that, as I ve said, I think there is irreparable harm. And I think that there is a likelihood of success on the underlying case that the desire of the school to punish this particular kind of speech was and this particular activity, even if it s one that they agreed with, but they didn t want these students to do it I would be interested and I ll say in a minute what I m going to do here. If counsel wants to produce for me indications where other students who left during the school day I have been informed by counsel that, in the previous academic year, numbers of students left, I take it for this very same type of activity. If they were given Level IV disciplinary punishment, that would persuade me that, at least with respect to this activity, they always do it. Thus, no specific findings of facts were made to support the District Court s grant of the 21 preliminary injunction as is required. See Fed. R. Civ. P. 65(d)(1); see also Fed. R. Civ. P. 22 52(a)(2) (stating that a court must state the findings and conclusions that support its action 23 when granting or refusing an interlocutory injunction). Requirements for the form and content of 24 preliminary injunctions and temporary restraining orders are properly met by a written order, a 25 document lacking here. See, e.g., Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) ( Federal 26 Rule of Civil Procedure 65(d), which provides the standards for the form and scope of 27 injunctions, contemplates the issuance of a written order. ); Bates v. Johnson, 901 F.2d 1424, 28 1427 (7th Cir. 1990) ( Oral statements are not injunctions. ). 29 Compounding the District Court s failure to comply with Rule 65(d) is the lack of 30 adequate notice given to the School District to oppose the preliminary injunction. Rule 65(a)(1) 31 of the Federal Rules of Civil Procedure provides that [t]he court may issue a preliminary 32 injunction only on notice to the adverse party. This provision has been construed to require the 33 district court to allow [the adverse] party sufficient time to marshal his evidence and present his 10 1 arguments against the issuance of the injunction, i.e., the adverse party must be afforded a fair 2 opportunity to oppose the preliminary injunction. See Rosen, 106 F.3d at 31 (quoting 3 Weitzman v. Stein, 897 F.2d 653, 657 (2d Cir. 1990) (citing 11 Charles Alan Wright & Arthur R. 4 Miller, Federal Practice and Procedure § 2949, at 468 (1973))); e.g., Marshall Durbin Farms, Inc. 5 v. Nat l Farmers Org., Inc., 446 F.2d 353, 355 56 (5th Cir. 1971) (considering the complexity of 6 the case and the substantial volume of submitted evidence in concluding that a week was 7 insufficient time to afford the adverse party a fair opportunity to oppose the preliminary 8 injunction). 9 Here, the facts clearly show that the School District did not have a fair opportunity to 10 oppose the entry of the preliminary injunction at the hearing. The hearing was held at noon on 11 the same day the plaintiffs filed their complaint. The plaintiffs legal memorandum and 12 supporting evidence which included 10 affidavits, an excerpt of the Code of Conduct, and a 13 disciplinary review form were handed to the School District s counsel as he was entering the 14 court to attend the hearing. Thus, there was insufficient time for the School District to undertake 15 a proper review of the Students claims. Cf. All Care Nursing Serv., Inc. v. Bethesda Mem l 16 Hosp., Inc., 887 F.2d 1535, 1538 (11th Cir. 1989) (in complex antitrust action requiring precise 17 presentation of numerous facts, finding that two-days notice and oral presentations limited to 18 thirty minutes can hardly be said to constitute a meaningful opportunity to oppose appellees 19 motion for preliminary injunction ). 20 Indeed, the School District s counsel was without doubt unprepared for the hearing 21 through no fault of his own. He was unfamiliar with his client s position on the case and, at 22 various times during the hearing, had to confer with his clients about basic questions posed by 23 the District Court. For example, at one point, counsel for the School District contradicted his 24 client s position on the critical but basic issue of whether the Students conduct constituted 25 a Level IV disciplinary action. Accordingly, considering the shortness of the time afforded to the 26 School District to absorb the legal allegations made against it, and counsel s actual 27 unpreparedness resulting from such lack of time, we conclude that adequate notice was not 11 1 2 provided in this case as required by Rule 65(a). Therefore, in light of the foregoing, we hold that no preliminary injunction was entered in 3 this case. The District Court thus erred when it granted attorney s fees based on the existence of 4 a preliminary injunction. 5 6 2. The Temporary Restraining Order Unlike a preliminary injunction, a temporary restraining order is not constrained by Rule 7 65(a) s requirement of notice to the adverse party. See Standard Microsystems Corp. v. Texas 8 Instruments, Inc., 916 F.2d 58, 62 (2d Cir. 1990) ( Where speed is needed, the rules of procedure 9 provide for temporary restraining orders, even without notice, to prevent irreparable harm. 10 (citing Fed. R. Civ. P. 65)). For many of the reasons discussed supra Part II(B)(1), however, we 11 conclude that the District Court s statements at the September 15, 2004 hearing did not constitute 12 a temporary restraining order because they did not detail the acts restrained or required and were 13 not reduced to a written order. See Fed. R. Civ. P. 65(d)(1) (providing specificity requirements 14 applicable to restraining orders); 65(b)(2) (requiring temporary restraining order issued without 15 notice to adverse party or its counsel to be promptly filed in the clerk s office and entered in the 16 record ); cf. Lau, 229 F.3d at 123. Furthermore, the District Court failed to explain why the 17 ruling should have been issued without adequate notice. See Fed. R. Civ. P. 65(b)(2). 18 Regardless, even if a temporary restraining order had issued, such an order was not a material 19 alteration of the legal relationship of the parties necessary to permit an award of attorney s fees. 20 Buckhannon, 532 U.S. at 604 (internal quotation marks omitted). 21 We have previously suggested that a grant of a plaintiff s request for a temporary 22 restraining order may be sufficient grounds to grant attorney s fees to the plaintiff pursuant to 42 23 U.S.C. § 1988(b). See, e.g., LaRouche v. Kezer, 20 F.3d 68, 74 (2d Cir. 1994) (citing 24 Christopher P. v. Marcus, 915 F.2d 794, 804 05 (2d Cir. 1990). In so suggesting, however, we 25 have explicitly rejected claims for attorney s fees where the temporary restraining order merely 26 maintained the status quo. See, e.g., Christopher P., 915 F.2d at 805 ( [T]he procurement of a 27 [temporary restraining order] in which the court does not address the merits of the case but 28 simply preserves the status quo to avoid irreparable harm to the plaintiff is not by itself sufficient 12 1 to give a plaintiff prevailing party status. ); cf. Vacchio, 404 F.3d at 673 (holding that prevailing 2 party status may be conferred by interim judicial relief that alters the parties legal 3 relationship ); LaRouche, 20 F.3d at 74 75 (holding that a grant of provisional relief that 4 merely preserves the status quo does not merit an award of attorney s fees). 5 Here, although the District Court referred to the Students likelihood of success on the 6 underlying case before orally stating that it would grant their request for a temporary restraining 7 order and preliminary injunction, it is unclear whether the District Court intended to grant the 8 temporary restraining order based on the finding of a likelihood of success on the merits of the 9 case. In this connection, we note that a temporary restraining order serves a purpose different 10 from that of a preliminary injunction. The purpose of a temporary restraining order is to 11 preserve an existing situation in statu quo until the court has an opportunity to pass upon the 12 merits of the demand for a preliminary injunction. Pan Am. World Airways, Inc. v. Flight 13 Eng rs Int l Ass n, PAA Chapter, 306 F.2d 840, 842 (2d Cir. 1962); 11A Charles Alan Wright & 14 Arthur R. Miller, Federal Practice and Procedure § 2951, at 253 (2d ed. 1995) ( The [temporary 15 restraining order] is designed to preserve the status quo until there is an opportunity to hold a 16 hearing on the application for a preliminary injunction . . . . ). Unless extended, even a 17 temporary restraining order properly issued without notice to the adverse party or its counsel 18 expires within no more than ten days after entry. Fed. R. Civ. P. 65(b)(2). There is no claim that 19 any extension was granted here. See Garcia, 499 F. Supp. 2d at 423 (observing that the district 20 court took no formal action on the submitted memoranda, one of which included a request to 21 extend the temporary restraining order). 22 As explained above, the District Court reneged on its initial determination to grant the 23 preliminary injunction by indicating that a definitive ruling would be made after further 24 evidence by the School District was submitted. No preliminary injunction was signed despite the 25 District Court s prior statement that it would do so. Thus, assuming arguendo that a temporary 26 restraining order was granted at the September 15, 2004 hearing, the District Court would have 27 granted the temporary restraining order only to preserve the status quo i.e., permit the 28 Students to continue attending school until after the presentment of further evidence on the 13 1 merits of the Students claims to determine the propriety of granting their request for a 2 preliminary injunction. See Christopher P., 915 F.2d at 805 (holding that plaintiffs cannot be 3 said to have prevailed on the basis of the [temporary restraining order] because it simply 4 preserve[d] the status quo by directing the State of Connecticut to re-admit plaintiff to its 5 school). Under the circumstances, any temporary restraining order that the District Court might 6 have granted would not have been based on the merits of the Students underlying First 7 Amendment claim. Accordingly, even if the District Court had granted the Students request for 8 a temporary restraining order, such a grant could not serve as an alternative basis for according 9 them prevailing-party status for purposes of granting attorney s fees. 10 3. The School District s Decision Relating to Further Suspensions 11 We are unpersuaded by the Students remaining argument that they are prevailing parties 12 because they did not receive further suspensions subsequent to the September 15, 2004 hearing. 13 The record amply supports the School District s characterization that its decision not to further 14 suspend the Students was voluntary. Thus, because a voluntary change in behavior after the 15 filing of the lawsuit is insufficient to confer prevailing-party status for purposes of granting 16 attorney s fees, see Buckhannon, 532 U.S. at 605 (holding that a voluntary change in behavior 17 occurring after the filing of the lawsuit does not confer prevailing-party status on the plaintiffs), 18 we reject the Students argument as without merit. 19 Until the District Court s 2006 decision, both the Students and the School District 20 believed that no preliminary injunction had issued at the September 15, 2004 hearing. And 21 because we conclude that there was no valid preliminary injunction issued, the only order made 22 in this case, arguendo, was the temporary restraining order. However, even assuming that a 23 temporary restraining order was entered at the September hearing, there was no court order that 24 could have prevented the School District from suspending the Students between October 2004 25 and until the Students graduation in June 2006. See Vacchio, 404 F.3d at 674 ( [S]tatus as a 26 prevailing party is conferred whenever there is a court ordered change in the legal relationship 27 between the plaintiff and the defendant or a material alteration of the legal relationship of the 14 1 parties. (alterations and internal quotation marks omitted) (emphasis added)). The School 2 District s act of not suspending the Students was, therefore, entirely voluntary. Accordingly, the 3 School District s voluntary change in behavior cannot serve as the basis for conferring 4 prevailing-party status to the Students for purposes of granting attorney s fees. 5 III. 6 CONCLUSION For the foregoing reasons, the judgment of the District Court is REVERSED. 15

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