Kirk v. New York State Department of Education
2011 U.S. App. LEXIS 13675
2d Cir.2011Background
- Kirk, a Canadian veterinarian, worked in the U.S. under a TN visa; New York Education Law § 6704(6) requires U.S. citizenship or permanent residency for licensure.
- New York granted Kirk a temporary, limited veterinary license for four years due to a shortage of qualified applicants; license expired July 2008.
- In January 2008 Kirk sued under 42 U.S.C. §§ 1981, 1983 challenging § 6704(6)'s residency/citizenship requirements as unconstitutional; district court granted summary judgment for Kirk.
- Kirk moved for attorney’s fees under § 1988(b); while appeal was pending, the Department obtained a stay denial and issued Kirk a permanent license as a consequence of the district court's ruling.
- Kirk obtained permanent resident status in December 2008; in June 2009 the district court vacated the judgment as moot after the appeal was moot, and the Department moved to vacate the fee award.
- The district court held Kirk retained prevailing party status because the judicially sanctioned change remained even though the judgment was vacated; the Second Circuit affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kirk remains a prevailing party after mootness and vacatur. | Kirk retains prevailing party status due to a judicially sanctioned change that persists. | Sole v. Wyner shows prevailing status can be undone when the case becomes moot on appeal. | Kirk remains a prevailing party. |
| Whether Sole applies to a case where a judgment is vacated after mootness. | Sole is distinguishable; Kirk was not merely a preliminary victory that was undone. | Sole controls; any reversal/dissolution of the judgment negates prevailing status. | Sole does not control; Kirk remains prevailing. |
Key Cases Cited
- Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598 (U.S. 2001) (prevailing party requires a judicially sanctioned change in the legal relationship)
- Sole v. Wyner, 551 U.S. 74 (U.S. 2007) (preliminary victory undone by final decision may defeat fee recovery)
- Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782 (U.S. 1989) (touchstone of prevailing party inquiry is material alteration of legal relationship)
- Farrar v. Hobby, 506 U.S. 103 (U.S. 1992) (prevailing party status tied to securing some relief on the merits)
- Haley v. Pataki, 106 F.3d 478 (2d Cir. 1997) (pre- Sole circuit precedent on interim relief and fees)
- LaRouche v. Kezer, 20 F.3d 68 (2d Cir. 1994) (posture where mootness does not defeat fees for interim relief)
- Diffenderfer v. Gomez-Colon, 587 F.3d 445 (1st Cir. 2009) (circuits diverge on mootness and prevailing party status)
- Marina Point Dev. Co. v. Corez, LLC, 566 F.3d 794 (9th Cir. 2009) (mootness does not automatically preclude fees)
- UFO Chuting of Hawaii, Inc. v. Smith, 508 F.3d 1189 (9th Cir. 2007) (under certain conditions, success in district court can carry fees despite mootness)